Padilla v. Loweree

• Decision Date: 31 August 2011
• Docket Number: No. 08–10–00052–CV.,08–10–00052–CV.
• Citation: 354 S.W.3d 856
• Parties: Mario PADILLA, M.D., Appellant, v. Anita LOWEREE, Appellee.
• Court: Texas Court of Appeals

354 S.W.3d 856

Mario PADILLA, M.D., Appellant,

v.Anita LOWEREE, Appellee.

No. 08–10–00052–CV.

Court of Appeals of Texas, El Paso.

Aug. 31, 2011.

Cynthia C. Llamas, Hicks & Llamas, P.C., El Paso, TX, for Appellant.

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

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Dr. Mario Padilla brings this interlocutory appeal from the trial court's denial of a motion to dismiss the health care liability claims against him on the basis of an inadequate expert report. At issue is a brachial plexus injury occurring during gynecological surgery. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Anita Loweree filed a medical malpractice suit against Paso Del Norte Surgery Center and Drs. Mario Padilla and Efrain Rivera. She alleged the defendants were negligent in positioning her body during a surgical procedure which resulted in permanent neurologic damage in her right upper extremity. Dr. Padilla performed the surgery while Dr. Rivera provided anaesthesia services.

Loweree timely filed an expert report and curriculum vitae of Dr. Allen, an orthopedist. The report, dated May 17, 2005, stated simply:

I am a physician licensed and currently practicing in New Mexico. Based on my training, education and experience I have knowledge of the standard of care for positioning patients for surgery, whether gynecological, orthopedic or other specialty and for their monitoring during the post-anesthesia and recovery periods and am qualified to give opinions on the standard of care, breach of the standard of care and causation in this case, which involves either positioning for surgery or post-anesthesia and recovery care.

...

Based on review of records it is my opinion that Anita Loweree's treatment fell below the standard of care by allowing pressure or traction on her brachial plexus to occur and continue until she suffered the plexopathy documented as quoted above, either as a result of inadequate care by those who positioned her while she was anesthetized, for which those who positioned her and, ultimately, the surgeon are responsible, or as a result of inadequate monitoring during recovery, which is the responsibility of nursing staff monitoring her; and that as a result she suffered a brachial plexus injury.

These opinions are expressed ‘to a reasonable medical probability.’

Dr. Padilla filed a motion challenging the adequacy of the expert report and asked the court to dismiss the case. He argued the report was not an objective good faith effort to comply with the statute because it: (1) fails to identify Dr. Padilla; (2) is premised upon the “captain of the ship” doctrine, which Texas has rejected as a theory of liability; (3) fails to explain how or why Dr. Allen is qualified to render an expert opinion on the standard of care; (4) fails to enunciate the standard of care; (5) does not adequately explain the causal nexus between the alleged breach and Loweree's injury; (6) does not explain the injury; (7) equivocated on when and how the injury arose; and (8) was conclusory since it failed to explain how Dr. Padilla caused the injury. See Padilla v. Loweree, 242 S.W.3d 544, 546 (Tex.App.-El Paso 2007, no pet.). After a hearing, the court found that the report was deficient, but granted Plaintiff's request for a thirty day extension to cure the report's errors and denied Dr. Padilla's motion to dismiss.¹

Loweree timely filed a curative report and curriculum vitae by Dr. Allen dated July 11, 2006. Dr. Padilla again objected by filing a motion to dismiss Loweree's claims asserting the July 11, 2006 curative report failed to comport with Section 74.351(r)(6) of the Texas Medical Liability Act. In the motion, Dr. Padilla argued that many of the initial problems were repeated in the curative report and he incorporated all of his previous arguments and authorities.

Following a hearing on Dr. Padilla's motion, the trial court entered judgment determining that the curative report constituted an objective, good-faith effort to comply with the Texas Medical Liability Act, and denied Dr. Padilla's motion to dismiss. This appeal follows. Dr. Padilla complains that the trial court should have dismissed the suit based on his challenges to the adequacy of Dr. Allen's July 2006 curative report because: (1) Dr. Allen lacks the requisite expertise to render opinions on the standard of care, breach, and causation; (2) Dr. Allen's report failed to set out the standard of care and any specific breach by Padilla; and (3) Dr. Allen's report did not provide an explanation of the casual nexus between Padilla's alleged breach and Loweree's injury.

STANDARD OF REVIEW

A trial court's ruling on a motion to dismiss a health care liability claim is reviewed for clear abuse of discretion. See Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). See also Kendrick v. Garcia, 171 S.W.3d 698, 702–03 (Tex.App.-Eastland 2005, pet. denied) (utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss under Section 74.351). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Kendrick, 171 S.W.3d at 703, citing 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). There is no abuse, however, simply because a trial court may decide a matter within its discretion differently than an appellate court. Downer, 701 S.W.2d at 242. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court, thus insulating the trial court's decision from appellate second guessing. Wright, 79 S.W.3d at 52.

APPLICABLE LAW

A claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or 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.² See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011).

If the plaintiff timely furnishes an expert report, a defendant may challenge the report's adequacy. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). 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 the definition of an expert report in Subsection (r)(6). Tex. Civ. Prac. & Rem.Code Ann. § 74.351( l ). An expert report is defined as:

[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 the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6).

To constitute a good-faith effort, an expert report must provide sufficient information to fulfill two purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Wright, 79 S.W.3d at 52, citing Palacios, 46 S.W.3d at 879. A report need not marshal all of the plaintiff's proof, but it must include the expert's opinion on the standard of care, breach, and causal relationship. Wright, 79 S.W.3d at 52.

A defendant may pursue an interlocutory appeal from an order that denies all or part of the relief sought by a motion under Section 74.351(b). See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (West 2008).

DR. ALLEN'S QUALIFICATIONS

In Issue One, Dr. Padilla argues the report and curriculum vitae are inadequate because they fail to demonstrate that Dr. Allen is qualified to testify. There are two kinds of experts in health care liability claims against physicians: those offering opinions on the standard of care, and those offering opinions on causation. Tex. Civ. Prac. & Rem.Code Ann. §§ 74.401, 74.403. Dr. Allen's qualifications to provide an expert report must be made on the basis of the contents of his report and curriculum vitae. In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, no pet.); Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex.App.-Amarillo 2001, no pet.); see Palacios, 46 S.W.3d at 878. A court reviewing the adequacy the report should look no further than the report itself because all information relevant to the inquiry is contained within its four corners. In re Windisch, 138 S.W.3d at 511; Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. Accordingly, we must make our determination from a review of the report, including the curriculum vitae.

With respect to his qualifications, Dr. Allen's report states:

I am a physician licensed and currently practicing medicine in the State of New Mexico and U.K. Certified in Orthopedic Surgery. My current practice is office based Orthopedics. Based on my training, education and experience I have knowledge of the standard of care for positioning patients for surgery, whether orthopedic, gynecological or other specialty and for their monitoring during surgery and post-anesthesia and recovery periods. My training, education and experience include but are not limited to making decisions on positioning and monitoring, prescribing appropriate positioning and monitoring, and oversight of medical, nursing and other staff in performance of those activities during pre-, intra- and postoperative periods. I am qualified to give opinions on the standard of care, breach of the standard of care and causation in this case, which involves positioning for surgery or post-anesthesia and...