Grindstaff v. Michie

• Court: Texas Court of Appeals
• Writing for the Court: Ann Crawford McClure
• Citation: Grindstaff v. Michie, 242 S.W.3d 536 (Tex. App. 2007)
• Decision Date: 30 August 2007
• Docket Number: No. 08-06-00175-CV.,08-06-00175-CV.
• Parties: Gary GRINDSTAFF, D.P.M., Appellant, v. Sandra MICHIE, Appellee.

242 S.W.3d 536

Gary GRINDSTAFF, D.P.M., Appellant, v. Sandra MICHIE, Appellee.

No. 08-06-00175-CV.

Court of Appeals of Texas, El Paso.

August 30, 2007.

Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, TX, for Appellant.

Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for Appellee.

Before CHEW, C.J., McCLURE, and BARAJAS, C.J. (Ret.).

OPINION

ANN CRAWFORD McCLURE, Justice.

In this case of "surgery gone awry," Dr. Gary Grindstaff appeals the denial of his motion to dismiss pursuant to the Texas Medical Liability and Insurance Improvement Act. For the following reasons, we affirm.

FACTUAL SUMMARY

In 2002, Sandra Michie sought treatment from Dr. Grindstaff, a podiatrist, for bilateral heel and plantar foot pain. She suffered with the pain for about six years and had pursued several unsuccessful treatments, including over-the-counter medications, arch supports, Birkenstock shoes, and custom made functional orthotics. Dr. Grindstaff believed Michie suffered from recalcitrant plantar fasciitis and recommended treatment of physical modalities, plantar fascia stretching, and strapping. After three months, Michie's condition had not improved. Dr. Grindstaff then recommended simultaneous bilateral endoscopic plantar fasciotomies.

Following surgery on both feet, Michie's pain worsened. On. October 29, 2004, she filed a health care liability suit alleging Dr. Grindstaff was negligent: (1) in performing a surgical procedure that was not indicated for her then existing condition and diagnosis, (2) for performing a surgical procedure that was not indicated to be performed bilaterally, (3) by failing to provide her with appropriate conservative treatment for an appropriate period of time prior to offering her surgery, and (4) by improperly performing bilateral plantar fasciotomies.

In support of her lawsuit, Michie filed an expert report by and curriculum vitae of Dr. Jefferson Cartwright, an orthopedic surgeon. He opined that Michie's postoperative complaints were the direct result of foot surgery that was neither warranted nor indicated. Dr. Grindstaff timely challenged the adequacy of Dr. Cartwright's report and filed a motion to dismiss. The trial court denied the motion and this appeal follows.

JURISDICTION

In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.¹ Tex. Civ.Prac. & Rem.Code Ann. § 74.351(a)(Vernon 2005). An expert report is 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 those standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex.Civ. Prac. & Rem.Code § 74.351(r)(6)(Vernon Supp.2006).

Under Section 74.351, there are two ways in which a report may be characterized as not having been served. First, the expert report was not timely served, i.e., it was not served within 120 days after the date the claim was filed. See Tex.Civ. Prac.Rem.Code Ann. § 74.351(a); id. at § 74.351(b). Secondly, although the report was timely served, it was deficient. See. Tex.Civ.Prac. & Rem.Code Ann. § 74.351(c). Dr. Grindstaff contends the report at issue was so fatally defective that it does not constitute a report at all.

Dr. Grindstaff sought relief pursuant to Section 74.351(a), (b), (1), and (r). The trial court denied relief sought under Section 74.351(b). A party may, via interlocutory appeal, challenge the order of a district court that denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351(c). See Tex.Civ. Prac. & Rem.Code Ann. § 51.014(a)(9)(Vernon Supp.2006). Because no extension of time was granted under subsection (c), we have interlocutory appellate jurisdiction to review the denial of the motion to dismiss. Cayton v. Moore, 224 S.W.3d 440, 443-44 (Tex.App.-Dallas 2007, no pet.); see also Academy of Oriental Medicine, L.L.C. v. Andra, 173 S.W.3d 184, 188 n. 7 (Tex.App.-Austin 2005, no pet.).

STANDARD OF REVIEW

We review the denial of a motion to dismiss for an abuse of discretion.² Murphy v. Mendoza, 234 S.W.3d 23 (Tex.App.-El Paso 2007, no pet.); Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex.App.-Eastland 2005, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The mere fact that a trial judge has decided a matter within his discretionary authority in a different manner than we would does not constitute an abuse of discretion. See id. at 242.

ALLEGED DEFICIENCIES OF THE REPORT

We begin by addressing the individual deficiencies raised by Dr. Grindstaff. While he lists ten issues for review, they may be answered in three segments: (1) Was Dr. Cartwright qualified to render an expert opinion regarding the care provided by Dr. Grindstaff'?; (2) Did his report adequately set forth the applicable standard of care?; and (3) Did his report adequately address causation? If these questions are answered in the affirmative, then the report meets the statutory requirements of the Act as contained in Chapter 74 of the Texas Civil Practices and Remedies Code.

Qualifications

First, Dr. Grindstaff contends Dr. Cartwright's report is deficient because Dr. Cartwright is not a podiatrist and he does not articulate how he is qualified to render an opinion on the standard of care applicable to a podiatrist. Dr. Grindstaff also contends Dr. Cartwright's curriculum vitae fails to indicate his training involving proper treatment for diseases of the feet.

A health care liability claim is defined as a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract. Tex.Civ.Prac. & Rem.Code Ann. § 74.001(13). Under Chapter 74, a podiatrist is defined as a health care provider. Tex.Civ.Prac. & Rem.Code Ann. § 74.001(12)(A)(iii).

To qualify as an expert on the standard of care, Dr. Cartwright must meet the requirements of Section 74.402(b).³ Tex. Civ.Prac. & Rem.Code Ann. § 74.351(r)(5)(B)(with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, "expert" means an expert qualified to testify under the requirements of Section 74.402). Section 74.402(b) states:

In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health care providers 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 health care.

Tex.Civ.Prac. & Rem.Code Ann. § 74.402(b)(1-3). To determine whether a witness 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 is: (1) certified by a licensing agency of one or more states of the United States or national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. Tex.Civ.Prac. & Rem.Code Ann. § 74.402(c)(1) & (2). The trial court may depart from the criteria if it determines there is good cause to admit the expert's testimony. Tex.Civ. Prac. & Rem.Code Ann. § 74.402(d). If the trial court so finds, it shall state on the record the reason for admitting the expert testimony. Tex.Civ.Prac. & Rem.Code Ann. § 74.402(d). Such is not the case here.

Practicing in Same Type of Health Care Field

Because Dr. Cartwright is an orthopedic surgeon, not a podiatrist, we must first determine whether he is practicing in a health care field involving the same type of care or treatment provided by Dr. Grindstaff. Tex.Civ.Prac. & Rem.Code Ann. § 74.402(b)(1); see Group v. Vicento, 164 S.W.3d 724, 730 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). Podiatry is the treatment of any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. See Tex.Occ.Code Ann. § 202.001(4)(Vernon 2004). Orthopedics is the "branch of medicine concerned with the correction or prevention of skeletal deformities, disorders, or injuries." Merriam-Webster Online at http://www.m-w.com/dictionary/orthopedics.

Dr. Cartwright is board certified in orthopedic surgery. He has treated many patients with plantar fasciitis and is familiar with the standard of care. Since Dr. Cartwright has experience in...