Hightower v. Baylor Univ. Med. Ctr.

• Decision Date: 12 August 2011
• Docket Number: No. 05–10–00300–CV.,05–10–00300–CV.
• Citation: 348 S.W.3d 512
• Parties: Jennifer HIGHTOWER, individually and as Representative of the Estate of Joshua Hightower, and Dale Hightower, Appellants,v.BAYLOR UNIVERSITY MEDICAL CENTER, Dr. Edmund Sanchez, and Dr. Srinath Chinnakotla, Appellees.
• Court: Texas Court of Appeals

348 S.W.3d 512

Jennifer HIGHTOWER, individually and as Representative of the Estate of Joshua Hightower, and Dale Hightower, Appellants,

v.BAYLOR UNIVERSITY MEDICAL CENTER, Dr. Edmund Sanchez, and Dr. Srinath Chinnakotla, Appellees.

No. 05–10–00300–CV.

Court of Appeals of Texas, Dallas.

Aug. 12, 2011.

Robert Daniel O'Conor, Cotham, Harwell & Evans, Houston, Matthew Robert Patton, Gilmer, for Appellants.Cory M. Sutker, Michelle E. Robberson, John A. Scully, Cooper & Scully, P.C., D. Bowen Berry, Deborah B. Junek, The Berry Firm, P.L.L.C., Stan Thiebaud, Ty Bailey, Michael A. Yanof, Stinnett, Thiebaud & Remington, L.L.P., Dallas, for Appellees.Before Justices O'NEILL, MURPHY, and FILLMORE.

OPINION

Opinion By Justice O'NEILL.

Jennifer and Dale Hightower appeal from the trial court's orders dismissing their case for failure to file an adequate expert report. In two issues, the Hightowers contend: (1) the trial court erred in dismissing their case because the expert reports complied with the law; and (2) the expert report requirements violate the Texas Constitution. We overrule the Hightowers' issues and affirm the trial court's interlocutory orders.

Background

The Hightowers' son, Joshua, suffered from chronic kidney disease and needed a transplant. He received a transplant on May 4, 2004. Dr. Srinath Chinnakotla harvested the transplanted kidney from a deceased donor in a Texarkana hospital. Dr. Edmund Sanchez performed the transplant surgery at Baylor University Medical Center. Soon after the surgery, Joshua began to experience complications. Joshua died on June 21, 2004. An autopsy revealed that he died of complications from rabies acquired from the infected kidney.

The Hightowers filed a health care liability claim against Baylor, Dr. Chinnakotla, and Dr. Sanchez (collectively “appellees”) seeking damages for the wrongful death of their son. In their third amended petition, the Hightowers alleged claims for negligence, fraud and intentional misrepresentation, and gross negligence. Pursuant to the requirements of chapter 74 of the Texas Civil Practices and Remedies Code, the Hightowers filed two expert reports from Dr. Youmin Wu and Dr. Ted Eastlund. Appellees objected to the reports as deficient and moved to dismiss. The trial court apparently delayed ruling on the motions to await this Court's decision in Baylor University Medical Center v. Biggs, 237 S.W.3d 909 (Tex.App.-Dallas 2007, pet. denied). The plaintiff in Biggs had received the other kidney from the same donor and, like Joshua, died from complications of rabies. Like this case, Biggs involved an appeal regarding the sufficiency of expert reports.

Following this Court's issuance of the Biggs opinion, the trial court found the expert reports of Dr. Wu and Dr. Eastlund were deficient. The trial court allowed the Hightowers an extension of time to file sufficient reports. The Hightowers filed supplemental reports of both Dr. Wu and Dr. Eastlund. Appellees objected to these reports and filed motions to dismiss. Following a hearing, the trial court found the supplemental reports deficient and granted appellees' motions to dismiss. The trial court also awarded attorney's fees and costs to appellees in an amount to be determined at a later date. This appeal timely followed.

Expert Reports

In their first issue, the Hightowers contend the trial court erred in finding their expert reports deficient. Specifically, the Hightowers contend their two expert reports met the statutory requirements.

A plaintiff who files a health care liability claim must file an expert report within 120 days of filing suit. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West Supp. 2010). An expert report must provide the expert's opinion as to the applicable standard of care and how the care provided failed to meet that standard and explain the causal relationship between that failure and the claimed injury. § 74.351(r)(6). An expert report must provide enough information to fulfill two purposes. Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001). The report must inform the defendant of the specific conduct the plaintiff has called into question, and the report must provide a basis for the trial court to conclude the claims have merit. Id. A trial court must grant a motion challenging the expert report if it determines the report does not represent an objective good faith effort to comply with the definition of an expert report. § 74.351( l ).

Whether the report complies with the requirements of section 74.351(r)(6) is determined by examining the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). The report need not marshal all the plaintiff's proof, but it must include a fair summary of the expert's opinions on each of the three elements required by the statute. Id. The report cannot merely state the expert's conclusions, but must explain the basis of the expert's statement to link the conclusions to the facts. Id.

We review the trial court's determination regarding the adequacy of an expert report for an abuse of discretion. Palacios, 46 S.W.3d at 877; Standefer v. Brewer, 256 S.W.3d 889, 891 (Tex.App.-Dallas 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing matters submitted to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Harris Cnty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no pet.). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than we would in a similar circumstance. Id.

In this case, we focus our attention on the causal link between the alleged failure to meet the standard of care and the claimed injury. See McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989) (proximate cause remains an element of action based on doctor's failure to inform patient of inherent risks associated with surgical procedure). As this Court previously has held, a plaintiff must establish that the “injury complained of was caused in fact by the undisclosed risk.” Biggs, 237 S.W.3d at 922 (citing Greene v. Thiet, 846 S.W.2d 26, 31 (Tex.App.-San Antonio 1992, writ denied)). The Hightowers have given us no legal basis to revisit this holding, and we decline to do so.

As this Court noted in Biggs, the Texas Medical Disclosure Panel has not determined what risks or hazards must be disclosed prior to kidney transplant surgery. Biggs, 237 S.W.3d at 914. In this circumstance, the physician “is under the duty otherwise imposed by law.” Tex. Civ. Prac. & Rem.Code Ann. § 74.106(b) (West 2005). For such a procedure, the physician's duty is to disclose all risks or hazards that could influence a reasonable person in making a decision to consent to the procedure. Tex. Civ. Prac. & Rem.Code Ann. § 74.101 (West 2005). Expert testimony must establish that a risk is “inherent” to the treatment or procedure in question. Id. In order to be an inherent risk, it must exist in connection with and be inseparable from the procedure. Barclay v. Campbell, 704 S.W.2d 8, 10 (Tex.1986). In Barclay for example, the defendant psychiatrist gave the plaintiff a psychiatric medication without disclosing the risk that it can cause a serious muscle disorder. Id. at 9. To establish the inherent risk of the medication, the plaintiff introduced expert testimony regarding the probability of contracting the muscle disorder as a result of taking the medication. Id. at 10.

Here, Dr. Eastlund states in his report addressing only Dr. Sanchez's care that the donor was at a high risk for HIV and hepatitis because of drug use and recent incarceration. He bases this opinion on the guidelines set by the Centers for Disease Control, which provide for the exclusion of certain persons from organ donation due to their increased risk of HIV and hepatitis infection. Drug use ¹ and recent incarceration are among the criteria. Dr. Eastlund states “It is my opinion as a practitioner that a reasonable patient under the same circumstances as those faced by Joshua Hightower would have rejected [the donor's] kidney donation and surgery and the rabies infection would have been avoided.” However, the risk that a reasonable patient would have considered is that the donor was at high risk for hepatitis and HIV, not that the donor exhibited signs of rabies. Although Dr. Eastlund states in his report that the donor exhibited hypersalivation, a classic sign of rabies, when he was first seen in the emergency room and he developed a high fever, Dr. Eastlund does not state or suggest this information was known to Dr. Sanchez at the time any duty of disclosure arose. He in fact states that the doctors at the Texarkana hospital attributed these symptoms to the donor's cocaine overdose. He also recognizes it was “[o]nly after fatal rabies developed in the organ transplant recipients was it discovered from friends of the organ donor that the organ donor had been bitten by a bat sometime prior to hospitalization.”

Dr. Eastlund fails to discuss the inherent risks of a kidney transplant. His conclusion that the donor's kidney should not have been offered is tied to the CDC guidelines that focus solely upon an increased risk of infection for HIV and hepatitis. Although Dr. Eastlund notes the donor's hypersalivation, he does not state the kidney should have been excluded because of that symptom. Instead, Dr. Eastlund contends that Dr. Sanchez breached his standard of care by failing to inform the Hightowers and Joshua of the donor's high risk status for having either HIV or hepatitis. Even if true, the undisputed fact remains that the injury complained of, acquiring rabies from the donor, was not caused by the undisclosed risk of HIV or hepatitis. Accordingly, Dr....