Richburg v. Wolf

• Decision Date: 17 May 2001
• Docket Number: No. 1,1
• Citation: 48 S.W.3d 375
• Parties: (Tex.App.-Eastland 2001) Kathryn Suzette Richburg and Doug Richburg Appellants v. Roland O. Wolf, M.D., Appellee l-00-00287-CV
• Court: Texas Court of Appeals

Page 375

48 S.W.3d 375 (Tex.App.-Eastland 2001)

Kathryn Suzette Richburg and Doug Richburg Appellants v. Roland O. Wolf, M.D., Appellee

No. 1l-00-00287-CV

Court of Appeals of Texas, Eastland

May 17, 2001

Appeal from Taylor County

Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

Opinion

McCALL, JUSTICE

Kathryn Suzette Richburg and Doug Richburg filed this medical malpractice case against Dr. Roland O. Wolf. The trial court granted Dr. Wolf's motion to dismiss the case because the expert report provided by the Richburgs did not satisfy the requirements of the "Texas Medical Liability and Insurance Improvement Act." We affirm.

Kathryn suffered from dense fibrocystic disease of the breasts. To diminish her pain, Dr. Wolf performed bilateral subcutaneous mastectomies and reconstructive breast surgery. After the surgery, the Richburgs brought this suit alleging that Dr. Wolf failed to fully disclose the risks associated with the use of silicone implants, failed to use saline implants instead of silicon, failed to place the implants subpectorally, failed to remove sufficient breast tissue from the right breast during the mastectomy, and failed to diagnose both surgical and post-surgical injuries.

Texas health care liability claims are governed by the "Texas Medical Liability and Insurance Improvement Act." See TEX.REV.CIV.STAT.ANN. art. 4590i, §§ 1.01 through 16.02 (Vernon Supp. 2001). Section 13.01(d) of the Act requires a claimant to file an "expert report," together with a curriculum vitae of the expert, within 180 days of filing suit or voluntarily nonsuit the action. Section 13.01(r)(6) defines "expert report" as:

"Expert report" means 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.

A claimant's failure to file the "expert report" can result in sanctions. Section 13.01(e) provides that, if a claimant fails to comply with Section 13.01(d), upon motion of the "affected physician or healthcare provider," the court shall enter the following sanctions against the claimant:

(1)the reasonable attorney's fees and costs of court incurred by that defendant; (2) the forfeiture of any cost bond respecting the claimant's claim against that defendant to the extent necessary to pay the award; and (3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling. (Emphasis added)

During the 180-day time period, the Richburgs furnished Dr. Wolf with copies of the curriculum vitae and report of Dr. Brentley A. Buchele. Like Dr. Wolf, Dr. Buchele is a board certified plastic surgeon. Nine months after the Richburgs filed suit, Dr. Wolf filed a motion to dismiss their claims on the grounds that Dr. Buchele's report was not an "expert report" as defined by Section 13.01(r)(6). The motion to dismiss pointed out that Dr. Buchele's report failed to state the applicable standard of care; failed "to establish the causal relationship between Dr. Wolf's alleged failure to meet the standard of care and the injury, harm, or damages claimed by the [Richburgs]"; and failed to state what damages the Richburgs had suffered. Before the hearing was held on Dr. Wolf's motion to dismiss, but after the expiration of the mandatory 180-day period, the Richburgs tendered a supplemental report which purported to "clarify" or cure the deficiencies in the original report that had been identified by Dr. Wolf.

Standard of Review

The trial court granted Dr. Wolf's motion and dismissed the Richburgs' claims with prejudice. The standard for reviewing a trial court's judgment of dismissal with prejudice pursuant to Section 13.01(e) is whether the trial court's decision was an abuse of discretion. American Transitional Care Centers of Texas, Inc. d/b/a American Transitional Hospital v. Palacios et al,46 S.W.3d 873 (Tex. 2001) (not yet reported). Section 13.01(1) provides that a court shall grant a motion challenging the adequacy of an expert report only if it appears to the court after a hearing that the report does not represent a "good faith" effort to comply with the definition of an expert report in Section 13.01(r)(6). In their first and second issues, the Richburgs contend that they timely filed the required expert report and that the original report was a good faith effort to comply with the requirements of Article 4590i.

Dr. Buchele's Original Report

Because Dr. Wolf filed the motion challenging the adequacy of Dr. Buchele's report, Dr. Wolf had the burden under Section 13.01(1) to demonstrate that the report was not a good faith effort. In his motion to dismiss, Dr. Wolf pointed out that Dr. Buchele's report did not adequately define a standard of care applicable to reconstructive breast surgery and that the report failed to establish the causal relationship between Dr. Wolf's alleged failure to meet the standard of care and the injury, harm, or damages claimed by the Richburgs.

The report sets forth a standard of care applicable to all physicians rather than one for plastic and reconstructive surgeons performing reconstructive breast surgery:

Physicians, particularly surgeons, are under the obligation to make clear to the patient the diagnosis, various treatment options, and then recommend a course of action. Once this has been agreed to, it is incumbent on the physician to carry out this plan unless unforeseen emergency mitigating circumstances occur.

The report does not identify any specific treatment or condition, and it fails to set forth the specific...