Pediatrix Med. Grp., Inc. v. Robinson

• Court: Texas Court of Appeals
• Citation: Pediatrix Med. Grp., Inc. v. Robinson, 352 S.W.3d 879 (Tex. App. 2011)
• Decision Date: 31 October 2011
• Docket Number: No. 05–10–01546–CV.,05–10–01546–CV.
• Parties: PEDIATRIX MEDICAL GROUP, INC., Pediatrix Medical Group of Texas, P.A., Luis Alberto Ayo, M.D., Roy John Caviglia, M.D., Fortunato Perez–Benavides, M.D., and Jose Bernardo Arellano, M.D., Appellants, v. Gabriela Saenz ROBINSON, as Next of Friend of Ruben Pinales, Appellee.

352 S.W.3d 879

PEDIATRIX MEDICAL GROUP, INC., Pediatrix Medical Group of Texas, P.A., Luis Alberto Ayo, M.D., Roy John Caviglia, M.D., Fortunato Perez–Benavides, M.D., and Jose Bernardo Arellano, M.D., Appellants,

v.Gabriela Saenz ROBINSON, as Next of Friend of Ruben Pinales, Appellee.

No. 05–10–01546–CV.

Court of Appeals of Texas, Dallas.

Oct. 31, 2011.

Jennifer Gossom Martin, Schell Cooley LLP, Scott P. Brinkerhoff, Addison, TX, Russell W. Schell, Schell Cooley LLP, Dallas, TX, for Appellants.

Domingo Garcia, Law Office of Domingo Garcia, P.C., Elizabeth M. Fraley, Fraley & Fraley, L.L.P., James E. Girards, The Girards Law Firm, Lawrence R. Lassiter, Miller Weisbrod, L.L.P., Dallas, TX, Paul M. Bracken, Robles, Bracken & Hughes, LLP, El Paso, TX, for Appellee.

Before Justices MORRIS, O'NEILL, and FILLMORE.

OPINION

Opinion By Justice O'NEILL.

Appellants Pediatrix Medical Group, Inc., Pediatrix Medical Group of Texas, P.A., Luis Alberto Ayo, M.D., Roy John Caviglia, M.D., Fortunato Perez–Benavides, M.D., and Jose Bernardo Arellano, M.D. (collectively referred to as “appellants”) appeal the trial court's orders denying their motion to dismiss and overruling their objections to two expert reports filed by appellee Gabriela Saenz Robinson, as next of friend of Ruben Pinales. We affirm the trial court's orders.

Factual and Procedural Background

Ruben Pinales was born prematurely on June 28, 2000. His gestational age was twenty-five weeks old, which put him at a high-risk of developing retinopathy of prematurity (“ROP”). This condition can result in blindness in premature babies if not timely diagnosed and treated.

After his birth, Ruben was immediately transferred to the neonatal intensive care unit within Providence Memorial Hospital. He was first examined by Dr. Jorge Fabio Llamas–Soforo (“Dr. Llamas”) on August 2, 2000. Dr. Llamas found incomplete vascularization and fetal fundi in the eyes, and his notes indicated a follow-up should occur in four weeks. Dr. Llamas performed a follow-up exam on August 25, 2000 and found increased vascularization and noted he would follow up the next week before leaving town. The next week, on August 31, 2000, Dr. Llamas examined Ruben and found increased vascularization with Grade I ROP, 360 degrees in both eyes with no plus disease. He stated, “I will re-evaluate pt as soon as I return from OOT.”

Dr. Llamas did not re-evaluate Ruben until September 25, 2000. During the exam, Dr. Llamas diagnosed Ruben with “Grade III ROP in right eye, 7 o'clock to 10 o'clock with Grade II ROP in the rest of the eye, no plus disease.” On the left eye, he found “Grade III ROP from 3 o'clock to 6 o'clock with the remainder of the left eye Grade II ROP, no plus disease.”

While in the NICU, neonatologists Dr. Ayo, Dr. Arellano, Dr. Caviglia, and Dr. Perez–Benavides cared for Ruben. None of these doctors' progress notes made any notation regarding Dr. Llamas's August 31, 2000 examination where he found ROP in both eyes.

On September 27, 2000, Ruben was discharged from Providence Memorial Hospital with instructions to follow-up with Dr. Llamas on October 2, 2000. During the October visit, Dr. Llamas continued to note ROP in both eyes. During Ruben's November 2, 2000 visit, Dr. Llamas described the condition as active cicatricial ROP stage II in both eyes with mild dragging of the macula in the left eye.

In September 2001, Ruben's care and treatment was transferred to Dr. Violeta Radenovich, a pediatric ophthalmologist. She diagnosed him as having ROP in both eyes, retinal detachment in the right eye, and severe scarring and macular traction in the left eye. Dr. Radenovich determined Ruben was legally blind.

Appellee originally sued Dr. Llamas, Dr. Ayo, Pediatrix Medical Group, Inc., Pediatrix Medical Group of Texas, P.A., and other healthcare providers for damages allegedly arising from the acts of medical negligence relating to the screening and treatment of Ruben's ROP. Because the lawsuit fell under chapter 74 of the Texas Civil Practice and Remedies Code, appellee filed two expert reports in support of her claim: one report from Dr. Sandra Brown and a second report from Dr. Marcus Hermansen. Dr. Ayo and the Pediatrix entities filed objections to the sufficiency of the reports.

Almost a year later, appellee amended her petition and added Dr. Caviglia, Dr. Perez–Benavides, and Dr. Arellano as defendants. She then filed an expert report from Dr. William V. Good, a board certified ophthalmologist specializing in pediatric ophthalmology and a second report from Dr. Maureen Sims, a neonatologist, which related to all appellants. Appellants again filed objections and moved to dismiss the lawsuit pursuant to section 74.351(b) of the civil practice and remedies code.

Appellee responded both reports constituted an objective good faith effort to comply with the statutory requirements of chapter 74. After a hearing, the trial court overruled appellants' objections to Dr. Good's and Dr. Sims's reports and denied their request for dismissal. The trial court entered an order on November 8, 2010. Appellants filed an accelerated, interlocutory appeal, cause number 05–10–01546–CV, challenging that order.

While 05–10–01546–CV was pending in this Court, the trial court entered an order on March 23, 2011 granting Dr. Ayo and the Pediatrix entities' objections to Dr. Brown's and Dr. Hermansen's expert reports, but allowed thirty days for appellee to supplement and cure any deficiencies. Appellee then supplemented with the exact same reports of Dr. Sims and Dr. Good that she previously filed after amending her petition. The trial court denied their objections on August 18, 2011.

During oral argument in cause number 05–10–01546–CV, appellants informed this court of their intent to file an accelerated notice of appeal as to the trial court's August 18, 2011 order. They also conceded the issues regarding Dr. Good's and Dr. Sims's expert reports would be the same for both appeals; therefore, the appeals should be consolidated.¹ This Court notified the parties of its intent to consolidate cause numbers 05–10–01546–CV and 05–11–01219–CV. Accordingly, the following analysis and opinion applies to both the trial court's November 8, 2010 order and its August 18, 2011 order.

Standard of Review and Applicable Case Law

Courts of appeals apply an abuse of discretion standard in reviewing a trial court's decision with respect to chapter 74 expert reports and the qualifications of experts. See Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 876 (Tex.2001); Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996); Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex.App.-Dallas 2007, pet. denied). When reviewing matters committed to the trial court's discretion, an appellate court may not substitute its judgment for that of the trial court. Rosa, 240 S.W.3d at 569. However, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

Section 74.351(r)(5) defines “expert” as a physician or a person practicing health care in a field of practice involving the same type of care or treatment. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5) (West 2011). A person may qualify as an expert with respect to medical standards of care when the person (1) is practicing medicine at the time the 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) (West 2011). The court may also consider whether the witness is board certified in an area relevant to the claim and whether the physician is actively practicing medicine in the areas relevant to the claim. Id. § 74.401(c).

Under the requirements set out in section 74.401, the proper inquiry concerning whether a physician is qualified to testify is not the physician's area of practice but the stated familiarity with the issues involved in the claim before the court. Concentra Health Serv., Inc. v. Everly, 2–08–455–CV, 2010 WL 1267775, at *4 (Tex.App.-Fort Worth Apr. 1, 2010, no pet.) (mem. op.). Thus, a physician “who is not of the same school of medicine [as the defendant] ... is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the defendant.” Id. Further, the party offering the expert's testimony bears the burden to prove the witness is qualified under Texas Rule of Evidence 702. Broders, 924 S.W.2d at 151; see Tex.R. Evid. 702 (requiring that experts be qualified “by knowledge, skill, experience, training, or education,” and that their testimony “assist the trier of fact”).

A trial court must grant a motion to dismiss under section 74.351(b) of the civil practice and remedies code only if the expert report does not represent an objective good faith effort to comply with the definition of an expert report as set out in section 74.351(r)(6). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351( l ) (West 2011); Palacios, 46 S.W.3d at 878. The statutory definition requires the expert to provide a “fair summary” of his or her opinions regarding the applicable standards of care, the manner in which the care rendered failed to meet those 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) (West 2011). The report is meant to serve two purposes: (1) to inform the defendant of the specific conduct the claimant is questioning and (2) to provide a basis for the trial judge to conclude the claims have merit. Palacios, 46 S.W.3d at 879. Because the statute focuses on what is...