TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00258-CV
Barbara Apodaca, Individually and on behalf of the Estate of Claudia J. McAulay,
Appellant
v.
Dr. Penni Russo,
Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-05-003937, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
O P I N I O N
This interlocutory appeal arises from a healthcare liability claim filed by appellant
Barbara Apodaca, individually and on behalf of the estate of Claudia J. McAulay, against
Penni Russo, M.D. The issue is whether Apodaca's expert report sufficiently meets the requirements
of section 74.351 of the civil practice and remedies code so as to allow her to receive an extension
of time. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)-(c) (West Supp. 2006). Apodaca
contends that the district court erred by granting Dr. Russo's motion to dismiss the lawsuit without
first granting Apodaca an extension of time to cure her expert report's deficiencies. See id.
§ 74.351(c). Because the district court did not abuse its discretion in granting Dr. Russo's motion
to dismiss and denying an extension of time to file an additional report, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
After she was involved in a serious automobile accident on October 22, 2003, in
which she sustained trauma to her head and multiple orthopedic injuries, Claudia McAulay
was admitted to Brackenridge Hospital. From October 24 to October 27, she was under the care of
Dr. Thomas Coopwood, an internal medicine physician, and others. During the course of her
treatment, according to her expert's report, Ms. McAulay was transferred from Brackenridge
Hospital Emergency Department to Healthsouth Rehabilitation Hospital, and then transferred back
to Brackenridge Hospital for an evaluation of her altered mental state and a urinary tract infection.
Dr. Penni Russo is a licensed physician who specializes in general surgery. At some
point, Russo evaluated Ms. McAulay for an inferior vena cava (IVC) filter, which allows intravenous
access to prevent a blood clot from causing a pulmonary embolism or stroke. No IVC filter
was inserted. On October 29, Ms. McAulay had a cardiopulmonary arrest, and health care providers
were unable to resuscitate her. The certificate of death showed that the cause of death was
pulmonary embolism.
As a representative of the estate, appellant filed suit on October 31, 2005, alleging
that Dr. Russo negligently failed to timely implement precautions against "pulmonary emboli, and
anti-coagulant therapy." (1) On February 17, 2006, appellant filed the expert report and curriculum
vitae of Dr. Leslie S. Zun pursuant to section 74.351 of the civil practice and remedies code. See id.
§ 74.351(a). Appellant provided no other report (2) before the expiration of the expert report deadline. (3)
Dr. Russo filed a motion to dismiss under section 74.351(b), asserting that appellant had failed to
file an expert report addressing the care and treatment provided by Dr. Russo. See id. § 74.351(b).
The district court granted the motion to dismiss, finding that appellant had failed to provide a proper
expert report and further that she was not entitled to an extension of time to cure the report's
inadequacies. See id. § 74.351(c). This interlocutory appeal followed.
ANALYSIS
In her single issue on appeal, Apodaca argues that dismissal was improper and that
she is entitled to an extension of time to file an expert report. Appellant urges that the district court
erred in not granting an extension of time to file an expert report to cure any deficiency in
her expert's first report. Dr. Russo responds that because the report fails to mention her name or
address any care she provided to the patient, the report is "no report" as to her and appellant is not
entitled to an extension.
We review a trial court's ruling on a motion to dismiss under section 74.351(b) for
an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877-78 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner or without reference to any guiding rules and principles. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to the trial court's
discretion, we may not substitute our own judgment for that of the trial court. Walker v. Gutierrez,
111 S.W.3d 56, 63 (Tex. 2003).
The expert report requirement
In a health-care liability claim, the claimant must provide each defendant with one
or more expert reports, including a curriculum vitae for each expert, within 120 days of filing the
original petition. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). An "expert report" is:
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.
Id. § 74.351(r)(6). Failure to serve an adequate expert report mandates dismissal with prejudice.
Id. § 74.351(b). A report need not marshal all of the plaintiff's proof, but it must include the expert's
opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878. To constitute
a good faith effort, the report must inform the defendant of the specific conduct called into question
and provide a basis for the trial court to determine that the claims have merit. Id. at 879. A report
does not fulfill these purposes if it fails to address the standard of care, breach of the standard, and
causation, or if it only states the expert's conclusions regarding these elements. Id.
The supreme court has stated that "to avoid dismissal, a plaintiff need not present
evidence in the report as if it were actually litigating the merits. The report can be informal in that
the information in the report does not have to meet the same requirements as the evidence offered
in a summary-judgment proceeding or at trial." Id. The expert report is not required to prove the
defendant's liability, but rather to provide notice of what conduct forms the basis for the plaintiff's
complaints. Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d 913, 916 (Tex. App.--Texarkana
2006, no pet.).
Dr. Zun's report
To comply with the expert report requirement, appellant served Dr. Russo with a two-page report from Dr. Zun setting forth the medical care Ms. McAulay received. It does not mention
Russo's name; it identifies another physician and otherwise fails to specify the identity of any other
health care provider involved in Ms. McAulay's treatment. After recounting the patient's initial
treatment by Dr. Thomas Coopwood and her return to Brackenridge Hospital on October 28 for
evaluation, the report observed:
The physician order sheet of 10/28/03 at 1350 states to stop the lovenox. In the same
order sheet dated 10/28/03, an order to place a temporary IVC filter was to be placed
today. Patient was noted to be restless and agitated the night of 10/28/03. On
10/28/03, the internal medicine consultant assessment stated, "the patient much less
responsive that records report and there was a concern about delirium from
alcoholism, head trauma". His evaluation included STAT CT scan of the head,
holding narcotics and monitoring for worsening symptoms. In this same report, the
internal medicine consultant recommended that stopping the heparin was not a good
option. It was recommended that the patient receive an immediate IVC filter. The
medication administration record for 10/29/03 at 9am did not document any
medication for DVT prophylaxis. On 10/29/03 at 9:30am, the patient had a
cardiopulmonary arrest. Resuscitation was attempted but the patient did not survive.
Deep venous thrombosis (DVT) prophylaxis as per Dr. Coopwood's note was aspirin
and plexipulse foot pump. The medication administration report from Brackenridge
Hospital did not note any heparin or lovenox being given to the patient from 10/23-10/27. The patient was discharged to Healthsouth Rehabilitation hospital on
lovenox.
After noting that the lovenox was discontinued on October 28 and the medication administration
report stated that stopping the heparin was "not a good option for DVT prophylaxis and
recommended that the patient get an IVC filter," Dr. Zun's report observed that "[a] note in the chart
stated that an IVC filter was to be placed and an order to hold the IVC filter was noted on 10/28/03."
The report then specified "the deviations from the standard of care":
(1) Lack of treatment for DVT prophylaxis
Deep venous thrombosis prevention was not properly addressed. It is essential that
prophylaxis for DVTs be given to patients in order to prevent pulmonary embolism
and death. Heparin or low molecular weight heparins are indication for prevention
of DVT. Based on the medical record, it is unclear whether the patient received
heparin or lovenox during all of the days of all the hospital stays to prevent DVT.
Asprin [sic] is not considered adequate prophylaxis for DVT. If there was a concern
about heparin induced thrombocytopenia, lepirudin (Refludan) is the drug of choice
for these patients. There was no finding that this medication was ever considered or
given by the physicians carrying [sic] for the patient.
(2) Lack of IVC filter insertion
The other option for DVT prophylaxis is the insertion of an IVC filter. Until IVC
filters are placed some other form of DVT prophylaxis needs to be initiated. In this
case, the IVC filter was not placed in a timely fashion nor was the patient given DVT
prophylaxis until the filter was placed. It is uncertain why the IVC filter was ordered
and then cancelled.
(3) Inadequate evaluation of the patient's altered mental status
The patient's altered mental status was not properly addressed. One of the likely
causes for altered mental status and agitation is pulmonary embolism. Evaluation of
altered mental status in this patient focused around medications and head trauma.
The appropriate evaluation would have included assessment of the respiratory status
including pulse oximetry, blood gas analysis, and chest radiograph. If the patient's
altered mental status was properly evaluated, the pulmonary embolism would have
been discovered prior to cardiac arrest. Appropriate treatment for pulmonary
embolism could have started prior to the fatal embolism and thereby prevented the
patient's demise.
(4) The patient's respiratory status was not adequately monitored
The patient's pulmonary status was not properly addressed. Pulse determinations are
one means to determine whether a patient has pulmonary problems. Low pulse
oxygenation readings in a post surgical, post trauma patient would necessitate that
the patient be evaluated for pulmonary embolism. Identification of pulmonary
problem from pulmonary embolisms would have prompted immediate treatment that
would have saved her life.
Zun concluded that "[e]ach of these four deviations from the standard of care, alone or in
combination, could have prevented the death of Ms. McAuley's."
In considering whether an expert report represents an objective good faith effort, the
supreme court has established that a trial court is limited to a review of the report itself:
The issue for the trial court is whether "the report" represents a good-faith effort to
comply with the statutory definition of an expert report. [former Tex. Rev. Civ. Stat.
Ann. art. 4590i] § 13.01(l). That definition requires, as to each defendant, a fair
summary of the expert's opinions about the applicable standard of care, the manner
in which the care failed to meet that standard, and the causal relationship between
that failure and the claimed injury. Id. § 13.01(r)(6). Because the statute focuses on
what the report discusses, the only information relevant to the inquiry is within the
four corners of the document.
Palacios, 46 S.W.3d at 878; see also Horizon/CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67, 68
(Tex. 2003). The only information, then, relevant to whether a report represents a good faith effort
to comply with the statutory requirements is the report itself. Bowie Mem'l Hosp. v. Wright,
79 S.W.3d 48, 53 (Tex. 2002). We must, therefore, consider whether the information within
the four corners of the expert report demonstrates a good faith effort to comply with the statutory
requirements.
Section 74.351(r)(6) requires that an expert report explain how the care rendered by
the physician failed to meet the applicable standard of care and the causal relationship between that
failure and the injury suffered by the claimant. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 878.
Although appellant has sued only Dr. Russo, other doctors and health-care providers
are implicated by the facts set forth in the report. The report references other providers as well as
their conduct and refers to another doctor by name, but fails to mention Dr. Russo at all. The
report does not discuss how the care rendered by Dr. Russo failed to meet the applicable standard
of care or how Dr. Russo's failure caused Ms. McAulay to suffer injury, harm or damages. Thus,
the report did not inform Dr. Russo of the specific conduct she allegedly performed that forms the
basis of the petition.
If a report fails to address the defendant physician, it constitutes no report as to that
defendant, and the trial court may not grant a 30-day extension. Garcia v. Marichalar, 185 S.W.3d
70, 74 (Tex. App.--San Antonio 2005, no pet.). The question is whether the trial court abused
its discretion in determining that the report failed to provide Dr. Russo a proper expert report and
that it constituted "no report" so as to preclude an extension of time to cure any deficiency.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)-(c).
In support of her contention that Apodaca's report did not satisfy the statutory
requirements so as to allow an extension of time to cure any deficiency, Dr. Russo relies upon
Garcia, 185 S.W.3d 70. In Garcia, the plaintiff filed suit against three doctors, two nurses, and a
hospital. Garcia v. Marichalar, 198 S.W.3d 250, 252 (Tex. App.--San Antonio 2006, no pet.)
(later proceeding). The plaintiff served two expert reports, but neither report mentioned Dr. Garcia.
Id. The court concluded that the trial court had no authority to grant an extension because the report
was not merely deficient, but constituted no report as to Dr. Garcia. Garcia, 185 S.W.3d at 74. The
court further held that "neither report informed Dr. Garcia of the specific conduct he allegedly
performed that [the plaintiff] had called into question," and, thus, the expert reports did not
constitute a good faith effort to comply with the statutory requirements. Garcia, 198 S.W.3d at 255.
As in Garcia, in this case, the report refers to the conduct and care provided by
several providers. But unlike Garcia, in this case, appellant has filed a lawsuit complaining of
the actions of only one doctor, Dr. Russo. Appellant seeks to distinguish Garcia because she has
sued only Dr. Russo. In Garcia, the plaintiffs made a similar argument, claiming that the report
applied to Dr. Garcia because he was involved in the single incident made the basis of that suit. Id.
at 254-55. The court concluded that the report must identify the physician's specific conduct, as well
as the causal relationship to represent a good faith effort to comply with section 74.351. See id. The
report does not satisfy section 74.351(a) for a specific defendant merely because he or she is a
defendant; the report must specifically identify the defendant and apply the statutory elements to that
defendant. See Jernigan v. Langley, 195 S.W.3d 91, 93-94 (Tex. 2006) (affirming a dismissal under
the prior statute, Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.03, because although the report made
passing mention of Dr. Jernigan, it failed to state how he breached the standard of care or how his
alleged breach caused injury); Longino, 183 S.W.3d at 917-18 (finding that the expert report did not
represent a good faith effort because it failed to differentiate between Dr. Longino and another
physician, and reversing the trial court's denial of Dr. Longino's motion to dismiss).
After reviewing the report in its entirety, we cannot conclude that the trial court
abused its discretion in determining that the report fails to represent a good faith effort to address the
conduct of Dr. Russo and constitutes no report as to Dr. Russo.
CONCLUSION
Because we conclude that the district court did not abuse its discretion in finding that
the report did not constitute a good faith effort to comply with the statutory requirements and
therefore constitutes "no report" as to Dr. Russo, we affirm the district court's order.
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 2, 2007
1. At the hearing, Dr. Russo's attorney argued that Dr. Russo's "sole involvement with
this patient was on the 28th when she got called by a nurse to come and evaluate the patient for an
IVC filter."
2. Although Dr. Zun provided a second report dated March 22, 2006, which is included in the
appendix to appellant's brief, the report was not before the trial court at the time of the hearing, the
trial court did not grant leave for appellant to file the second report, and it is not a part of the record
on appeal. See Tex. R. App. P. 34.
3. Section 74.351(a) required Apodaca to file expert reports within 120 days of filing her
original petition. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2006). Thus,
Apodaca's deadline to file expert reports was February 28, 2006.