Baylor University Medical Center v. Biggs, No. 05-06-01104-CV (Tex. App. 8/28/2007), 05-06-01104-CV.
| Decision Date | 28 August 2007 |
| Docket Number | No. 05-06-01104-CV.,05-06-01104-CV. |
| Parties | BAYLOR UNIVERSITY MEDICAL CENTER, EDMUND SANCHEZ, M.D., and SRINATH CHINNAKOTLA, M.D., Appellants, v. HAROLD BIGGS, Individually and as Executor of the Estate of CHERI JEAN WELLS BIGGS, Deceased, BRANDEN WELLS, and CHER BIGGS, Appellees. |
| Court | Texas Court of Appeals |
On Appeal from the 134th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-11989.
Reversed and Remanded.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
In this interlocutory appeal, Baylor University Medical Center; Edmund Sanchez, M.D.; and Srinath Chinnakotla, M.D. challenge the trial court's order denying their motions to dismiss medical malpractice claims filed by Harold Biggs, Individually and as Executor of the Estate of Cheri Jean Wells Biggs, Deceased; Branden Wells, Cheri Biggs's son; and Cher Biggs, Cheri Biggs's daughter (collectively, the family). Appellants argue the family's expert reports do not comply with section 74.351(r)(6) of the Texas Civil Practice and Remedies Code because the reports do not contain a fair summary of the experts' opinions on the standard of care, alleged breach of that standard, and causal link between any alleged breach and the injuries claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006). We agree and reverse the trial court's order denying appellants' motions to dismiss. Additionally, prior to the hearing on appellants' motions to dismiss, appellees requested a 30-day extension in which to cure any deficiencies in their expert reports. We remand this case to the trial court for a determination of whether that extension should be granted. See id. § 74.351(c).
On May 2, 2004, a patient of a Texarkana hospital died and his family donated his organs. Dr. Chinnakotla, a transplant surgeon at Baylor, flew to Texarkana to harvest the donor's kidneys for transplantation at Baylor. On May 4, Dr. Sanchez, also a transplant surgeon at Baylor, performed surgery to transplant one of the donor's kidneys into Cheri Biggs. After the surgery, Biggs's follow-up tests were normal until May 20, when Biggs began to experience complications. After her discharge on May 27, Biggs experienced additional complications, ultimately resulting in her hospitalization on June 1. Biggs's condition continued to deteriorate, and she was pronounced dead on June 9. The parties agree that the medical records show Biggs died from the transplantation of a rabies-infected kidney.
The family sued Baylor, Dr. Sanchez, and Dr. Chinnakotla for medical malpractice. Contemporaneously with the filing of their lawsuit, and pursuant to chapter 74 of the civil practice and remedies code, the family filed two medical expert reports. Appellants objected to the reports, contending the reports did not comply with section 74.351(r)(6) because they did not state the applicable standard of care, the alleged breach, or how the alleged breach proximately caused Biggs's death. In response to these objections, the family provided supplemental expert reports. Appellants objected to the supplemental expert reports on the same grounds, and Drs. Sanchez and Chinnakotla also challenged the qualifications of one of the experts. Appellants each moved to dismiss the lawsuit, contending the expert reports were insufficient under section 74.351(r)(6) as a matter of law. The trial court denied appellants' motions, and appellants filed this interlocutory appeal.
The family alleges Biggs would have declined the kidney if appellants had informed her about the donor's high-risk social and medical history, including specifically the information about his condition when he presented at the emergency room and after he was admitted to the hospital.1 They also allege they were not told that the transplant center offered the donor's kidneys to several hospitals and that those hospitals declined the organs because of the donor's high-risk social history, recent incarceration, and overall poor donor quality. The family further contends Baylor was negligent by failing to develop, implement, and enforce effective policies and procedures and/or standard guidelines for physicians regarding informed consent as it applied to high-risk donors.
A claim based on failure to obtain informed consent is governed by section 74.101 of the civil practice and remedies code:
In a suit against a physician or health care provider involving a health care liability claim that is based on the failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.
Tex. Civ. Prac. & Rem. Code Ann. § 74.101 (Vernon 2005); see Binur v. Jacobo,135 S.W.3d 646, 653 (Tex. 2004).2 Because the Texas Medical Disclosure Panel has not specifically determined what risks or hazards must be disclosed prior to kidney transplant surgery, the parties agree that the duty in this case is to "disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent."3 See Tex. Civ. Prac. & Rem. Code Ann. § 74.101. In such a situation, "the plaintiff must prove by expert testimony that the medical condition complained of is a risk inherent in the medical procedure performed" and the "risk is material in the sense that it could influence a reasonable person's decision to consent to the procedure." Barclay v. Campbell, 704 S.W.2d 8, 9-10 (Tex. 1986). The statute does not define "risk" or "hazard." The ordinary meaning of the term "risk" is "the possibility of loss, injury." Webster's Third New Int'l Dict. 1961 (1981); see Tajchman v. Giller, 938 S.W.2d 95, 98 (Tex. App.-Dallas 1996, writ denied). The ordinary meaning of the term "hazard" is "a thing or condition that might operate against success or safety." Webster's Third New Int'l Dict. 1041; see Giller, 938 S.W.2d at 98. A risk or hazard is inherent in the informed consent context if it "is one which exists in and is inseparable from the [procedure] itself." Barclay, 704 S.W.2d at 10 (). Additionally, the expert should "testify to all other facts concerning the risk which show that knowledge of the risk could influence a reasonable person in making a decision to consent to the procedure."Id. at 9 (quoting Peterson v. Shields, 652 S.W.2d 929, 931 (Tex. 1983)).
In their first issue, Drs. Sanchez and Chinnakotla contend that William M. Bennett, M.D., one of the family's experts, is not qualified to render an opinion in this case. The doctors argue that Dr. Bennett is a practicing nephrologist, not a transplant surgeon, and that his curriculum vitae and report do not indicate he is familiar with surgical standards of care or that he obtains surgical consent for kidney transplants.
The trial court has broad discretion to determine admissibility of expert testimony. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006). We will not reverse the trial court's ruling absent a clear abuse of that discretion. Id. A trial court abuses its discretion only if it acts arbitrarily or capriciously, without reference to any guiding rules or principles. Id.
Only a physician who satisfies specific requirements may qualify as an expert witness on the issue of whether another physician departed from accepted standards of medical care in a health care liability claim against that physician for injury to a patient. Section 74.401 provides that, to be qualified as an expert, the physician
(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a) (Vernon 2005). "Practicing medicine"
includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.
Id. § 74.401(b). In determining whether an expert is qualified on the basis of training or experience,
the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.
Id. § 74.401(c).
To comply with section 74.401's requirements, the proponent of the expert's testimony has the burden to show "that the expert has 'knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996) (quoting Ponder v. Texarkana Mem'l Hosp., 840 S.W.2d 476, 477-78 (Tex. App.-Houston [14th Dist.] 1991, writ denied)).
Dr. Bennett's curriculum vitae and report show that he is board certified in nephrology and has been a transplant physician since 1970. He is the director of renal transplantation at Legacy Health Systems in Portland, Oregon and is a member of the American...
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