In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-12-00565-CV _________________
CHARLES POPENEY AND FT. BEND NEUROLOGY, P.A., Appellants
V.
RACHEL CAUSEY AND BILL CAUSEY, Appellees
________________________________________________________________________
On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 10-06-06191 ________________________________________________________________________
MEMORANDUM OPINION
Dr. Charles Popeney and Ft. Bend Neurology, P.A. appeal the trial court‘s
order denying their motion to dismiss the Causeys‘ health care liability claims
pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). Because we find the
trial court did not abuse its discretion in denying appellants‘ motion to dismiss, we
affirm the order of the trial court.
1 I. BACKGROUND
In May 2009, Dr. Rosalia Burke performed a right superficial
parotidectomy1 on Rachel Causey at Memorial Hermann Hospital–The
Woodlands. To assist in locating Rachel‘s facial nerve, Dr. Burke utilized
intraoperative neurophysiological monitoring (IONM). Intra-Op Monitoring
Services, LLC (―Intra-Op‖) provided the IONM equipment. The IONM equipment
allows real-time mapping of areas with nerve branches by the placement of
monitoring electrodes (which provide electroconductive feedback) on a patient‘s
cranial nerves so the surgeon may avoid damaging the nerves during surgery.
Intra-Op also provided the technologist, Justin Hawkins, who was present during
the surgery. Dr. Charles Popeney, a neurologist specializing in intraoperative
neurophysiological monitoring, and owner of Ft. Bend Neurology, P.A., assisted
by monitoring the readings from the IONM equipment from a remote location.
During the procedure, Rachel‘s facial nerve was inadvertently transected.
The Causeys filed a report authored by Dr. Jaime Lopez to comply with the
statutory requirements that apply to health care liability claims. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351. Dr. Popeney and Ft. Bend Neurology filed 1 A parotidectomy is the ―surgical removal of the parotid gland[.]‖ Webster’s Third New International Dictionary 1644 (2002). The parotid gland is ―either of a pair of salivary glands situated on the side of the face below and in front of the ear[.]‖ Id. 2 objections to the sufficiency of the expert report. The trial court overruled the
objections and denied the motion to dismiss. Popeney and Ft. Bend Neurology
appealed the trial court‘s ruling. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(9) (West Supp. 2012). In the prior appeal, we concluded that Dr.
Lopez‘s report failed to provide a fair summary that explained how Dr. Popeney‘s
or Ft. Bend Neurology‘s alleged failures to meet the applicable standards of care
caused Rachel‘s injury. See Popeney v. Causey, No. 09-11-00649-CV, 2012 WL
2849274, at *1 (Tex. App.—Beaumont July 12, 2012, no pet.) (mem. op.). We
reversed the trial court‘s order denying Dr. Popeney‘s and Ft. Bend Neurology‘s
motion to dismiss and remanded the case to the trial court to consider the Causeys‘
request for additional time to cure the deficiencies. Id. at *4.
The trial court granted Dr. Popeney‘s request for an extension of time and
Dr. Lopez filed a supplemental report. Dr. Popeney objected to the sufficiency of
the supplemental report and moved to dismiss. The trial court overruled the
objections and denied the motion to dismiss. This interlocutory appeal followed.
On appeal, Dr. Popeney and Ft. Bend Neurology argue that Dr. Lopez‘s
supplemental report is conclusory as to its summary of causation and relies on
conflicting standards of care. Finding no abuse of discretion by the trial court in
denying appellants‘ motion to dismiss, we affirm the order of the trial court.
3 II. APPLICABLE LAW
We review a trial court‘s denial of a motion to dismiss under section 74.351
of the Civil Practice and Remedies Code for an abuse of discretion. See Am.
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 without reference to any guiding rules or principles.‖ Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if
it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992).
A plaintiff who asserts a health care liability claim, as defined by the statute,
must provide each defendant physician or health care provider with an expert
report which provides ―a fair summary of the expert‘s opinions‖ as of the date of
the report regarding the applicable standards of care, the manner in which the care
rendered failed to meet the applicable standards, and the causal relationship
between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a), (r)(6). When a plaintiff timely files an expert report and a defendant
moves to dismiss on the basis that the report is insufficient, the trial court must
grant the motion only if the report does not represent a good faith effort to meet the
statutory requirements. Id. § 74.351(l). To constitute a good faith effort, a report
4 ―must discuss the standard of care, breach, and causation with sufficient specificity
to inform the defendant of the conduct the plaintiff has called into question and to
provide a basis for the trial court to conclude that the claims have merit.‖
Palacios, 46 S.W.3d at 875.
―A report cannot merely state the expert‘s conclusions about these
elements[]‖ but ―‗must explain the basis of [the] statements to link [the]
conclusions to the facts.‘‖ Bowie, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998
S.W.2d 882, 890 (Tex. 1999)); see also Jelinek v. Casas, 328 S.W.3d 526, 539-40
(Tex. 2010). A report that merely states the expert‘s conclusions about the
standard of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879.
Further, a report that omits any of the statutory elements is likewise deficient. Id.
Regarding claims of vicarious liability, an expert report is sufficient when it
―adequately implicates the actions of that party‘s agents or employees[.]‖ Gardner
v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). In determining
whether the trial court‘s ruling on the motion to dismiss was correct, we look to the
four corners of the report. Palacios, 46 S.W.3d at 878. ―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. at 879.
5 III. ANALYSIS
In our prior opinion, we concluded that Dr. Lopez‘s initial report was
insufficient because we were unable to determine from the report whether Dr.
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-12-00565-CV _________________
CHARLES POPENEY AND FT. BEND NEUROLOGY, P.A., Appellants
V.
RACHEL CAUSEY AND BILL CAUSEY, Appellees
________________________________________________________________________
On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 10-06-06191 ________________________________________________________________________
MEMORANDUM OPINION
Dr. Charles Popeney and Ft. Bend Neurology, P.A. appeal the trial court‘s
order denying their motion to dismiss the Causeys‘ health care liability claims
pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). Because we find the
trial court did not abuse its discretion in denying appellants‘ motion to dismiss, we
affirm the order of the trial court.
1 I. BACKGROUND
In May 2009, Dr. Rosalia Burke performed a right superficial
parotidectomy1 on Rachel Causey at Memorial Hermann Hospital–The
Woodlands. To assist in locating Rachel‘s facial nerve, Dr. Burke utilized
intraoperative neurophysiological monitoring (IONM). Intra-Op Monitoring
Services, LLC (―Intra-Op‖) provided the IONM equipment. The IONM equipment
allows real-time mapping of areas with nerve branches by the placement of
monitoring electrodes (which provide electroconductive feedback) on a patient‘s
cranial nerves so the surgeon may avoid damaging the nerves during surgery.
Intra-Op also provided the technologist, Justin Hawkins, who was present during
the surgery. Dr. Charles Popeney, a neurologist specializing in intraoperative
neurophysiological monitoring, and owner of Ft. Bend Neurology, P.A., assisted
by monitoring the readings from the IONM equipment from a remote location.
During the procedure, Rachel‘s facial nerve was inadvertently transected.
The Causeys filed a report authored by Dr. Jaime Lopez to comply with the
statutory requirements that apply to health care liability claims. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351. Dr. Popeney and Ft. Bend Neurology filed 1 A parotidectomy is the ―surgical removal of the parotid gland[.]‖ Webster’s Third New International Dictionary 1644 (2002). The parotid gland is ―either of a pair of salivary glands situated on the side of the face below and in front of the ear[.]‖ Id. 2 objections to the sufficiency of the expert report. The trial court overruled the
objections and denied the motion to dismiss. Popeney and Ft. Bend Neurology
appealed the trial court‘s ruling. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(9) (West Supp. 2012). In the prior appeal, we concluded that Dr.
Lopez‘s report failed to provide a fair summary that explained how Dr. Popeney‘s
or Ft. Bend Neurology‘s alleged failures to meet the applicable standards of care
caused Rachel‘s injury. See Popeney v. Causey, No. 09-11-00649-CV, 2012 WL
2849274, at *1 (Tex. App.—Beaumont July 12, 2012, no pet.) (mem. op.). We
reversed the trial court‘s order denying Dr. Popeney‘s and Ft. Bend Neurology‘s
motion to dismiss and remanded the case to the trial court to consider the Causeys‘
request for additional time to cure the deficiencies. Id. at *4.
The trial court granted Dr. Popeney‘s request for an extension of time and
Dr. Lopez filed a supplemental report. Dr. Popeney objected to the sufficiency of
the supplemental report and moved to dismiss. The trial court overruled the
objections and denied the motion to dismiss. This interlocutory appeal followed.
On appeal, Dr. Popeney and Ft. Bend Neurology argue that Dr. Lopez‘s
supplemental report is conclusory as to its summary of causation and relies on
conflicting standards of care. Finding no abuse of discretion by the trial court in
denying appellants‘ motion to dismiss, we affirm the order of the trial court.
3 II. APPLICABLE LAW
We review a trial court‘s denial of a motion to dismiss under section 74.351
of the Civil Practice and Remedies Code for an abuse of discretion. See Am.
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 without reference to any guiding rules or principles.‖ Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if
it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992).
A plaintiff who asserts a health care liability claim, as defined by the statute,
must provide each defendant physician or health care provider with an expert
report which provides ―a fair summary of the expert‘s opinions‖ as of the date of
the report regarding the applicable standards of care, the manner in which the care
rendered failed to meet the applicable standards, and the causal relationship
between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a), (r)(6). When a plaintiff timely files an expert report and a defendant
moves to dismiss on the basis that the report is insufficient, the trial court must
grant the motion only if the report does not represent a good faith effort to meet the
statutory requirements. Id. § 74.351(l). To constitute a good faith effort, a report
4 ―must discuss the standard of care, breach, and causation with sufficient specificity
to inform the defendant of the conduct the plaintiff has called into question and to
provide a basis for the trial court to conclude that the claims have merit.‖
Palacios, 46 S.W.3d at 875.
―A report cannot merely state the expert‘s conclusions about these
elements[]‖ but ―‗must explain the basis of [the] statements to link [the]
conclusions to the facts.‘‖ Bowie, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998
S.W.2d 882, 890 (Tex. 1999)); see also Jelinek v. Casas, 328 S.W.3d 526, 539-40
(Tex. 2010). A report that merely states the expert‘s conclusions about the
standard of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879.
Further, a report that omits any of the statutory elements is likewise deficient. Id.
Regarding claims of vicarious liability, an expert report is sufficient when it
―adequately implicates the actions of that party‘s agents or employees[.]‖ Gardner
v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). In determining
whether the trial court‘s ruling on the motion to dismiss was correct, we look to the
four corners of the report. Palacios, 46 S.W.3d at 878. ―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. at 879.
5 III. ANALYSIS
In our prior opinion, we concluded that Dr. Lopez‘s initial report was
insufficient because we were unable to determine from the report whether Dr.
Popeney was responsible for monitoring the IONM equipment during the entire
procedure or only a portion of the procedure, and whether Dr. Popeney was
contacted before or after Rachel‘s facial nerve was cut. Further, the report failed to
identify the point during surgery that the facial nerve was cut, and what
information should have been provided to Dr. Burke to allow her to avoid cutting
the nerve. Popeney, 2012 WL 2849274, at *3. Dr. Lopez‘s supplemental report
answers these questions and provides a fair summary of the standards of care,
breach, and causation. See Palacios, 46 S.W.3d at 875.
In his supplemental report, Dr. Lopez explained that Dr. Popeney had a duty
to perform a preoperative review of the IONM protocol and review the baseline
IONM data with the technologist Hawkins and Dr. Burke, as well as a duty to
contemporaneously ―[r]eview and confirm the IONM data and stimulation results‖
with Hawkins and Dr. Burke, and a general duty to supervise Hawkins throughout
the case. Based on his review of the events of the surgery, Dr. Burke‘s post-
operative report, Dr. Burke‘s affidavit, as well as a communications log and chat
log that recorded communications between Hawkins and Dr. Popeney during
6 surgery, Dr. Lopez concluded that Dr. Popeney breached the applicable standards
of care in several respects.
Dr. Lopez stated that surgery began at 1:25 p.m. but Dr. Popeney did not
begin monitoring until 2:18 p.m., leaving ―a period of 53 minutes at the beginning
of the case that was not contemporaneously monitored . . . and [Hawkins] was not
supervised.‖ Dr. Lopez further stated that there is nothing in the record to indicate
that Dr. Popeney supervised Hawkins during the setup of the case or during the
acquisition of the baseline IONM data. Additionally, Dr. Lopez asserted that based
on the records, Dr. Popeney ―was not in communication‖ with Hawkins between
2:36 p.m. and 3:15 p.m., the period during which structures were being stimulated
to verify the nerve position and the facial nerve was inadvertently cut. Dr. Lopez
concluded generally that Dr. Popeney failed to review and confirm the IONM data
and stimulation results in a contemporaneous manner. Dr. Lopez asserted that these
omissions breached the applicable standards of care.
Dr. Lopez explained in his supplemental report that Dr. Popeney‘s ―failure
to communicate the accurate and relevant IONM findings to the surgeon led
[Hawkins] to misinterpret and provide erroneous information to Dr. Burke.‖ In his
supplemental report Dr. Lopez stated:
[A]s a result of Dr. Popeney[‘s] lack of contemporaneous review of the data and supervision of [Hawkins], Dr. Burke was led to believe 7 that the structure she was stimulating was indeed the facial nerve. Being told that stimulation of the structure in the surgical field generated activity in all branches of the facial nerve would indicate that the structure was indeed the facial nerve. . . . This erroneous and false identification of the facial nerve within reasonable medical probability contributed to the transection of the facial nerve, since the IONM nerve stimulation results conveyed to Dr. Burke indicated she had identified the facial nerve and, thus, the other structures in the surgical field could be treated as non-nerve[.]
Dr. Lopez concluded that ―Dr. Popeney should have monitored the case, and
reviewed and analyzed the data contemporaneously.‖ Dr. Lopez opined that ―[t]his
would have prevented Mr. Hawkins from providing his own incorrect
interpretation of the IONM data. [Because] Dr. Popeney would have correctly
informed Dr. Burke that the ‗responses‘ which had been seen were actually
artifacts and not true EMG (muscle) responses[.]‖ Dr. Lopez explained that
―[k]nowing this, Dr. Burke would have stimulated other structures in an attempt to
identify the facial nerve, prior to cutting unknown structures.‖
Dr. Lopez adequately set forth the applicable standards of care in the
supplemental report and explained how they were allegedly breached by Dr.
Popeney. Dr. Lopez‘s explanation of how and why Dr. Popeney‘s breach of the
standards of care may have caused or contributed to Dr. Burke inadvertently
cutting the facial nerve provides a sufficient basis for the trial court‘s
determination that the Causeys filed a compliant report. See Jelinek, 328 S.W.3d
8 at 539-40; Palacios, 46 S.W.3d at 879. We conclude the trial court did not abuse
its discretion in denying appellants‘ motion to dismiss. We affirm the order of the
trial court.
AFFIRMED.
___________________________ CHARLES KREGER Justice
Submitted on February 5, 2013 Opinion Delivered April 25, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.