Hebert v. Hopkins

• Decision Date: 01 March 2013
• Docket Number: No. 03–11–00419–CV.,03–11–00419–CV.
• Parties: Richard HEBERT and Janet Hebert, Appellants v. Timothy E. HOPKINS, M.D., and Shannon Clinic, Appellees.
• Court: Texas Court of Appeals

395 S.W.3d 884

Richard HEBERT and Janet Hebert, Appellants

v.Timothy E. HOPKINS, M.D., and Shannon Clinic, Appellees.

No. 03–11–00419–CV.

Court of Appeals of Texas,

Austin.

March 1, 2013.

Dana D. Banks, Smith Rose Finley, P.C., San Angelo, TX, for appellee.

William E. Zook, Jr., David W. Townend, Ted B. Lyon & Associates, P.C., Mesquite, TX, for appellant.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

BOB PEMBERTON, Justice.

Richard Hebert and his wife, Janet Hebert, appeal from a district court judgment dismissing, for failure to serve the expert report required by chapter 74 of the civil practice and remedies code, a health care liability claim they asserted against Timothy Hopkins, M.D., and Shannon Clinic.¹ The Heberts bring two issues, urging respectively that (1) the district court abused its discretion in concluding that they failed to serve an expert report complying with chapter 74; and (2) chapter 74's expert-report requirement violates various constitutional protections. We will overrule these contentions and affirm the district court's judgment.

BACKGROUND

The Heberts filed the underlying suit alleging that Dr. Hopkins, a neurosurgeon, committed professional negligence in performing spinal surgery on Richard Hebert at Shannon in September 2008 after Richard broke his neck in a fall. Specifically, they pled that Richard had presented with a fracture of the cervical 6(C6) vertebra that was “very unstable” due to a preexisting condition known as ankylosing spondylitis that had self-fused his spinal vertebrae on either side of the fracture; that the standard of care in such circumstances had required Hopkins to perform “an anterior and posterior fusion surgery” to ensure stability; that Hopkins had performed “an anterior fusion with plates and screws at C4–C7 but took no appropriate surgical measures to stabilize the fusion posteriorly;” and that the anterior-only fusion had subsequently “failed as one or more of the screws had pulled out causing the vertebral segments to move and compress the spinal cord at C4–C7,” rendering Richard a quadriparetic (i.e., paralyzed in all four limbs). The Heberts asserted that Shannon was vicariously liable for Hopkins's negligence by virtue of Hopkins's status as a “partner or member” of the clinic.

Within 120 days thereafter, in an attempt to comply with chapter 74's expert-report requirement, the Heberts served a report from P. Merrill White, M.D., along with Dr. White's curriculum vitae.² Hopkinsand Shannon timely objected to the sufficiency of Dr. White's report, asserting that the report had failed to adequately set forth, and was “conclusory” with respect to the underlying factual bases of, opinions regarding the applicable standard of care for Hebert in light of his underlying medical conditions, the manner in which Hopkins's care had failed to meet that standard, or a causal linkage to the fusion failure and Richard's injuries.³ By now, the 120–day period for serving an “expert report” had expired, so appellees also moved to dismiss the Heberts' suit with prejudice and sought a mandatory award of attorney's fees.⁴ Both sides submitted briefing on the merits of appellees' objections. Following a hearing at which the parties presented argument, the district court sustained appellees' objections but granted the Heberts a thirty-day extension to cure any deficiencies.⁵

Within the extension period, the Heberts served a supplemental report from White. Contending that White's supplemental report had failed to cure the deficiencies in his original report, appellees again moved to dismiss the Heberts' suit with prejudice.⁶ The Heberts filed a response joining issue regarding the sufficiency of the two reports and also asserting that chapter 74's expert-report requirement violates various protections of the U.S. or Texas constitutions. Following a hearing, the district court granted appellees' motion to dismiss. Subsequently, after hearing evidence, the district court awarded appellees attorney's fees as required by chapter 74, ⁷ and this order also served to make the court's prior dismissal order final. The Heberts then timely perfected this appeal.

ANALYSIS

Sufficiency of expert reports

In their first issue, the Heberts urge that the district court abused its discretion in holding that Dr. White's report, either in its original form or as supplemented, did not represent an objective good faith effort to comply with the statutory definition of an expert report.

The standards governing the contents of the expert report or reports required by chapter 74 are well established. Chapter 74 defines an “expert report” as “a fair summary of the expert's opinion 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.” ⁸ “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 this definition of “expert report.” ⁹ To constitute a “good faith effort,” as the Texas Supreme Court has explained, the report must include the expert's opinion on “each of the three main elements: standard of care, breach, and causation,” and must provide enough information to fulfill two purposes with respect to each element: (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. See Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9 (Tex.2010); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 (Tex.2001). Although these requirements do not require a plaintiff to marshal all of his or her proof or to present expert testimony in a form that would be admissible at trial, see Jelinek, 328 S.W.3d at 539–40 & n. 9, they do necessitate that “the expert must explain the basis for his statements to link his conclusions to the facts” and not merely state conclusions. Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999))); see also id. at 539–40 (observing, with respect to the causation element, “the expert must ... explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented”). This is so, in the supreme court's view, because “ ‘[a] report that merely states the expert's conclusions about the standard or care, breach, and causation’ does not fulfill the two purposes of a good-faith effort.” Id. at 539 (quoting Palacios, 46 S.W.3d at 879);see also id. at 540 (expert “must include sufficient detail” regarding how breach caused plaintiff's injuries “to allow the trial court to determine if the claim has merit”).

Importantly, the only information relevant to determining whether an expert report complies with these requirements is that contained within “the four corners” of the report itself. Palacios, 46 S.W.3d at 878. Consequently, neither the trial court nor this Court may infer additional opinions or underlying facts to fill in gaps that the report itself leaves open. See Wright, 79 S.W.3d at 53;see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.) (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” (citing Wright, 79 S.W.3d at 53)).

Our standard of review is likewise limited. Chapter 74 imposes a mandatory duty on a trial court to grant a motion challenging the adequacy of an expert report “if it appears to the court” that the report does not meet the above-described requirements. SeeTex. Civ. Prac. & Rem.Code Ann. § 74.351( l ) (“A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court ... that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).”) (emphasis added). Conversely, the trial court is prohibited from granting such a motion unless such noncompliance “appears to the court.” Id. (“A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court ....”) (emphasis added). But the linchpin determination that controls which of these two alternative sets of mandatory duties applies—whether “it appears to the court” that the report does not comply with the requirements—has been committed to the trial court's sound discretion by the Legislature. See Palacios, 46 S.W.3d at 877–78. Consequently, we review the trial court's determination for abuse of that discretion. See Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 878).

A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. See id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). “When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for the trial court's judgment.” Id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989)). We do not, in other words, examine the contents of Dr. White's reports and make our own de novo determination as to whether he has provided sufficient information, with respect to his opinions regarding standard of care, breach, and causation, to (1) inform appellees of the specific conduct the Heberts have called into question; and (2) provide a basis for the district court to conclude that the claims have merit. See Jelinek, 328 S.W.3d at 538–40 & n. 9;Wright, 79 S.W.3d at 52;Palacios, 46 S.W.3d at 878–79. Instead, we determine...