TTHR, L.P. v. Guyden

• Decision Date: 31 August 2010
• Docket Number: No. 01-09-00523-CV.,01-09-00523-CV.
• Citation: 326 S.W.3d 316
• Parties: TTHR, L.P. d/b/a Presbyterian Hospital of Denton, Appellant, v. Normell W. GUYDEN, Individually and as heir to the Estate of Natalie J. Guyden, Deceased, Appellee.
• Court: Texas Court of Appeals

326 S.W.3d 316

TTHR, L.P. d/b/a Presbyterian Hospital of Denton, Appellant,

v.Normell W. GUYDEN, Individually and as heir to the Estate of Natalie J. Guyden, Deceased, Appellee.

No. 01-09-00523-CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 31, 2010.

Heather Joanna Forgey, Jeffrey Franklin Wood, Jones Carr McGoldrick, L.L.P., Dallas, TX, for Appellant.

Daniel D. Horowitz, Nick C. Nichols, Abraham, Watkins, Nichols, Sorrels & Friend, Matthew E. Coveler, Richard P. Hogan Jr., Hogan & Hogan, L.L.P., Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, HIGLEY, and SHARP.

OPINION

JIM SHARP, Justice.

In its sole issue in this interlocutory appeal, appellant, TTHR, L.P. d/b/a PresbyterianHospital of Denton, contends that the trial court abused its discretion when it denied appellant's motion to dismiss appellee Normell W. Guyden's ¹ medical malpractice suit because Guyden did not file a sufficient expert report.² We affirm.

BACKGROUND

After she nearly drowned, Natalie Guyden was taken to Presbyterian Hospital in Denton, Texas, and treated at the hospital for acute respiratory and renal failure, pneumonia, diabetes mellitus, and anoxic encephalopathy. After almost two months in the hospital, Natalie developed a urinary tract infection (UTI) which was treated with the antibiotic Levaquin. Despite laboratory tests indicating that Natalie's UTI was caused by a strain of E. coli bacteria resistant to Levaquin, no other antibiotic was substituted.

Notwithstanding her infection, on June 15, 2006, Natalie was transferred by ambulance to Courtyard Convalescent Center, a long-term-care facility in Houston. Although Presbyterian Hospital was required to prepare a memorandum of transfer informing Courtyard of all relevant diagnoses and treatments, Natalie's memorandum of transfer was silent as to both her UTI and her laboratory results. Notes from Courtyard documenting information that it received from a Presbyterian Hospital nurse also make no mention of Natalie's UTI. As a result, Natalie's infection continued unchecked and she died within a day of arriving at Courtyard. The cause of death was listed as urosepsis.

Guyden filed suit against Presbyterian Hospital, Courtyard, and doctors Christopher Lockhart and Jamal Mubarak. On September 25, 2008, Guyden timely served all four defendants with the required expert report and curriculum vitae of his expert, George M. Matuschak, M.D. Defendant Presbyterian Hospital filed objections to the sufficiency of Dr. Matuschak's expert report on October 21, 2008.³ Six months later, on March 31, 2009, Presbyterian Hospital filed a motion to dismiss pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (Vernon Supp. 2009). After a hearing, the trial court overruled Presbyterian Hospital'sobjections and denied the motion to dismiss. This interlocutory appeal ensued.

DISCUSSION

Presbyterian Hospital asserts that the trial court abused its discretion when it determined that Dr. Matuschak's expert report satisfied the statutory requirements of Chapter 74 of the Texas Civil Practice and Remedies Code.

I. Applicable Law

A. Standard of Review

We review a trial court's decision on a motion to dismiss a case for failure to comply with section 74.351 for an abuse of discretion. See Am. Transitional Care Centers v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); Tex. Civ. Prac. & Rem.Code Ann. § 74.351(Vernon Supp. 2009). Although we defer to the trial court's factual determinations, we review questions of law de novo. Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To the extent that resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

B. Chapter 74 Expert Report Requirements

Section 74.351 ostensibly serves as a 'gate-keeper' through which no medical negligence causes of action may proceed until the claimant has made a good-faith effort to demonstrate that at least one expert believes that a breach of the applicable standard of care caused the claimed injury. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351; Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005). A report need not marshal all of the plaintiff's proof but it must include the expert's opinions on the three statutory elements: standard of care, breach, and causation. See Palacios, 46 S.W.3d at 878, 880; Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex.App.-Tyler 2008, pet. denied) (quoting Palacios, 46 S.W.3d at 880) (stating "fair summary" is "something less than a full statement" of applicable standard of care, how it was breached, and how that breach caused injury).

To constitute a good faith effort, the report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. A report that merely states the expert's conclusions as to the standard of care, breach, and causation does not fulfill these two purposes. Id. The expert must explain the basis for his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). The trial court may not draw any inferences, but must rely exclusively on the information contained within the report's four corners. See Palacios, 46 S.W.3d at 878. In addition to setting forth the requisite criteria, a Chapter 74 report must also be authored by a qualified "expert." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6).

II. Adequacy of Expert Report

Presbyterian Hospital argues that the expert report submitted by Guyden does not satisfy the requirements of section 74.351 because Dr. Matuschak, Guyden's expert, is not qualified to opine on causation and, even if he is qualified, his "conclusory statements" are not a "fair summary" of the standard of care, breach, or causation as to Presbyterian Hospital.

A. Qualifications of Experts

Presbyterian Hospital contends that Dr. Matuschak is unqualified to opine on causation because he is not licensed to practice medicine in Texas. ⁴ Section 74.351, entitled "Expert Report," defines an "Expert," "with respect to a person giving opinion testimony about the causal relationship between the injury, harm or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim" in a Chapter 74 report as "a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(C). Under the Texas Rules of Evidence, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex.R. Evid. 702; see also Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996).

Although neither section 74.351(r)(5)(C) nor the Texas Rules of Evidence explicitly require a physician to be licensed in Texas, Presbyterian Hospital argues that we must nonetheless find Dr. Matuschak disqualified on this basis. According to Presbyterian Hospital, because the term "physician" is not defined in section 74.351(r)(5)(C) or anywhere else in the same subchapter, we must apply the general definition of "physician" as set forth in Subchapter A of Chapter 74 (sections 74.001-.004). Subchapter A defines "physician" to mean, inter alia, "an individual licensed to practice medicine in this state." Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(23)(A) (Vernon 2005) (emphasis added).

Section 74.001(a)(23) of Subchapter A, however, was not intended to define who would or would not be qualified to author an expert report under section 754.351, but rather which type of defendants were entitled to the protections and benefits of Chapter 74 as a whole.⁵ Such an interpretation comports with the legislature's intended purpose for enacting Chapter 74—to protect Texas physicians and other health care providers from the state's "medical malpractice insurance crisis." See Tex. Civ. Prac. & Rem.Code Ann. § 74.001 historical and statutory notes [Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884].

Moreover, the cases that Presbyterian Hospital cites in support of its argument that the general definition of "physician" set forth in section 74.001(a)(23) applies to section 74.351 are neither dispositive nor are they persuasive with regard to this issue. The courts in these cases either (1) were never presented with the question of whether a physician who was not licensed to practice medicine in Texas, but was licensed in another state, was qualified to opine as to causation in a Chapter 74expert report ⁶ or (2) never reached the question because the purported expert was either licensed in Texas or not licensed at all.⁷ In fact, some of these cases actually support the proposition that section 74.001(a)(23) was intended to define the type of claims subject to Chapter 74 and the scope of defendants entitled to the protections of the chapter. See generally Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex.App.-Dallas 2006, pet. denied) (stating that laboratory entitled to benefits and protection of Chapter 74 because it met definition of "physician" set forth in section 74.001(a)(23)); Hunsucker v. Fustok, 238 S.W.3d 421, 429 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (determining that appellant's common-law fraud, breach of warranty, and tort claims were "health care liability claim[s]," and therefore, subject to requirements of section 74.351's predecessor statute).

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