Tenet Hosps., Ltd. v. Garcia

• Court: Texas Court of Appeals
• Writing for the Court: STEVEN L. HUGHES, Justice
• Citation: Tenet Hosps., Ltd. v. Garcia, 462 S.W.3d 299 (Tex. App. 2015)
• Decision Date: 22 April 2015
• Docket Number: No. 08–14–00087–CV,08–14–00087–CV
• Parties: Tenet Hospitals, Ltd. A Texas Limited Partnership, d/b/a Providence Memorial Hospital, Appellant, v. Esperanza Narah Garcia, Individually and as Representative of the Estate of Armando Garcia and for All Wrongful Death Beneficiaries, Including Minor Alexa Garcia, Appellee.

462 S.W.3d 299

Tenet Hospitals, Ltd. A Texas Limited Partnership, d/b/a Providence Memorial Hospital, Appellant

v.Esperanza Narah Garcia, Individually and as Representative of the Estate of Armando Garcia and for All Wrongful Death Beneficiaries, Including Minor Alexa Garcia, Appellee.

No. 08–14–00087–CV

Court of Appeals of Texas, El Paso.

April 22, 2015

Hadley A. Huchton, Boyaki Law Firm, El Paso, TX, for Appellee.

Yvonne K. Puig, Fulbright & Jaworski L.L.P., Austin, TX, for Appellant.

Before Rodriguez, J., Hughes, J., and Larsen, J. (Senior Judge)

OPINION

STEVEN L. HUGHES, Justice

This is a health care liability case. The issue in this interlocutory appeal is the adequacy of the expert report filed by the Garcias, who sued Tenet Hospitals, Ltd. d/b/a Providence Memorial Hospital (Providence) and others over the death of Armando Garcia. The trial court denied Providence's challenge to the preliminary expert report served by the Garcias. We conclude the trial court did not abuse its discretion and affirm.

BACKGROUND

We take the following background information from the petition and the expert report in issue, noting that the factual claims have not yet been proven.

July 22, 2011

Armando Garcia, who was 46 at the time, saw his family practitioner the morning of July 22, 2011. He complained of shortness of breath, chest pain, and nausea. His electrocardiogram (ECG) was abnormal. Garcia was given aspirin and oxygen, and sent by ambulance to the emergency room at Providence, arriving at the ER just before noon.

Garcia continued to complain of shortness of breath and chest pain at the ER. Another ECG was abnormal. Garcia reported having chest pain the day before while walking at work, and earlier that day while climbing stairs. His chest pain was alleviated by rest and aggravated by exertion. The ER doctor ordered oxygen, IV fluids, pain medication, and the anti-coagulant Lovenox.

Garcia was admitted to the hospital under the care of a family practice/hospitalist at 1:05 p.m. that day. At 2:27 p.m., Dr. Roger Belbel, a cardiologist, was asked to consult on the case given Garcia's complaints of chest pain. Dr. Belbel gave telephone orders for a two dimensional echocardiogram and asked that Garcia be scheduled for a stress test with contrast material in the morning.

Neither Dr. Belbel nor the admitting doctor saw Garcia on the 22nd. Instead, a nurse practitioner working for the admitting doctor saw Garcia at 3:45 p.m. that day. The nurse practitioner's notes reflect that the echocardiogram had been completed by that time, but made no comments concerning the results. Garcia was assessed with atypical chest pain and having a high risk for cardiovascular disease, based on his morbid obesity, hypertension, and diabetes.

July 23, 2011

Dr. Belbel did see Garcia sometime before 8:50 a.m. on the morning of the 23rd. Garcia was anxious and felt pressure in his chest, but no more chest pain. He had been up and walking the hospital floor. He reported having almost passed out from walking a few days before. Dr. Belbel noted it was unclear whether a cardiac or a pulmonary issue was causing Garcia's chest pain and shortness of breath. The doctor noted the need for a CT scan to rule out a pulmonary embolism, and that he would need to review the results of the echocardiogram he had ordered the day before.¹ His new orders included a request for a CT scan to rule out a pulmonary embolism, and a consult with a pulmonologist.

Garcia was taken for his stress test at around 9 a.m. The test involved the injection of a contrast material, which was given at 9:19 a.m. At some point during the test, Garcia went into respiratory arrest. A rapid response team was called at 10:58 a.m. Despite their efforts, Garcia expired and was pronounced dead at 11:26 a.m.

A later autopsy determined Garcia died from “bilateral pulmonary thromboembolism with pulmonary infarction.” The lungs had a well formed clot in the main pulmonary artery. There were also multiple clots in the small and medium-sized pulmonary blood vessels, all of which led to an “80% hemorrghic [sic] infarction of the pulmonary parenchyma[.]” His cardiac arteries showed only minimal changes.

Several of the physicians made chart entries after Mr. Garcia died. Dr. Belbel is reported to have written:

I had just finished reviewing his echo doppler this morning shortly after the IV lexi dose had been given and that [sic] I noted some alarming findings in the study that suggested he may have already presented to the emergency room and to his physician with a pulmonary embolism rather than a coronary ischemic problem as had been suggested by the Nurse Practitioner that had seen him yesterday as well as his primary physician who referred him to the ER, and by the ER physician that had seen him in the ER and had neglected to obtain a CT scan with contract [sic] in the ER to exclude the diagnosis of pulmonary embolism and aortic dissection, as well as a calcium coronary score ... [.]

The admitting doctor made a chart entry a week following the death suggesting Mr. Garcia may have arrested due to possible allergic reaction to contrast material injected during the stress test.

The Expert Reports

The Garcias filed health care liability claims against Providence, the ER physician, the admitting physician, and the nurse practitioner. They did not sue Dr. Belbel. As provided by statute, they were required to serve a complying preliminary expert report. Tex. Civ. Prac. & Rem. Code Ann. . § 74.351 (West Supp.2014). The report here was authored by Thomas DeBauche, MD, a practicing cardiologist who is board certified in internal medicine. Providence has not raised any issue concerning his qualifications.

Dr. DeBauche's initial report reflects he reviewed Garcia's medical records from the primary care physician and Providence, an outline of the medical care (attached to his report), and the autopsy report. Dr. DeBauche concluded the emergency room physician, the admitting physician, the nurse practitioner, as well as Providence breached the applicable standards of care which led to Garcia's death. We focus only on the allegations against Providence.

The report contends a patient presenting with a history of fainting, shortness of breath, and atypical chest pain must be evaluated to “rule out [the] triple threat,” which includes the three major risks facing such a patient—pulmonary embolism, aortic dissection, and myocardial infarction (heart attack ). From the record we gather that pulmonary embolism describes a blood clot (s) collecting in the lungs that can potentially diminish or cut off a person's oxygen intake. Dr. DeBauche describes pulmonary embolism as a threat as serious as the cardiac conditions.

Dr. DeBauche makes two allegations against Providence. First, Garcia was given a two dimensional echocardiogram on July 22. The echocardiogram showed a TrVelocity of 321.67 cm/s and estimated right ventricle systolic pressure of 56.82mm Hg. Dr. DeBauche describes these numbers as “very abnormal” with one being twice the normal value. A chart note by Dr. Belbel, made after Mr. Garcia passed away, referred to the findings as “alarming.” Dr. DeBauche concludes the echocardiogram technician, whom we presume to be an employee or agent of Providence, had a duty to report these findings immediately to Dr. Belbel. Dr. DeBauche further claims that had Dr. Belbel been alerted to these findings, he would have ordered a CT scan with contrast, which takes about 15 minutes, and which would have definitively diagnosed the pulmonary embolism.

Dr. DeBauche also faults the emergency room nurses for failing to tell Dr. Belbel when they called to arrange the consult on July 22 that Garcia had shortness of breath and was obese (he weighed some 350 pounds). He believes that had Dr. Belbel known of Garcia's shortness of breath and body weight, he would have also ordered the CT scan and discovered the pulmonary embolism earlier.

As to causation, Dr. DeBauche summarily concluded that Dr. Belbel would have ordered a CT scan. “This would have diagnosed PE and prevented Mr. Garcia's death.” Providence challenged this report on several grounds. Relevant here, it contended the causation opinion was conclusory. Providence also contended that Dr. DeBauche's theory concerning what Dr. Belbel would have done had he been provided different information was nothing more than speculation and conjecture.

The Garcias responded to this challenge by serving, within the time limit for their original report, an “addendum report” authored by Dr. DeBauche. That addendum states: “I have read the Affidavit of Dr. Roger Belbel dated 11/11/13, which substantiates the statements and opinions made in my letter to you dated 10/14/13. I agree with Dr. Belbel's statement that treatment with anticoagulant and thrombolytic medications on 7/22/11 would have prevented Mr. Garcia's death on 7/23/11.” Simultaneously, the Garcias filed and served an affidavit from Dr. Belbel, which in substance states that had he been told on July 22 that Garcia was short of breath and obese, he would have ordered a CT scan at that time. He also would have ordered a CT scan if he had been told of the abnormal echocardiogram results. Pulmonary embolism is diagnosed by a chest CT scan. Dr. Belbel concludes that: “[i]f PE had been diagnosed on 7/22/11 (via CT scan ), then Armando Garcia would have been treated by me that night with stat anticoagulant and thrombolytic medications (including TPA, heparin ) to dissolve the pulmonary embolism. In my opinion, as a cardiologist who has treated multiple patients with PE, in reasonable medical probability, such treatment for the PE on 7/22/11 would have prevented Mr. Garcia's death on 7/23/11.” Dr. Belbel's curriculum vitae was attached to his affidavit.

Providence renewed its challenge to this combination of reports. The trial court heard and rejected its challenge.

STANDARD OF REVIEW

We begin with the familiar standards governing expert medical reports in health care...