Christus Spohn Health System Corporation D/B/A Christus Spohn Hospital Corpus Christi - Memorial F/K/A Christus Spohn Hospital Memorial v. Ronnie Trammell, Jr., Individually, and as Personal Representative of the Estate of Ronnie Trammell, Sr.

• Court: Court of Appeals of Texas
• Decided: August 13, 2009
• Docket: 13-09-00199-CV
• Status: Published

Opinion

NUMBER 13-09-199-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTUS SPOHN HEALTH SYSTEM Appellant, CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL CORPUS CHRISTI-MEMORIAL F/K/A CHRISTUS SPOHN HOSPITAL MEMORIAL,

v.

RONNIE TRAMMELL, JR., INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RONNIE TRAMMELL, SR., Appellee.

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Vela Appellant, Christus Spohn Health System Corporation d/b/a Christus Spohn

Memorial Hospital (“Spohn” or “hospital”), appeals a trial court order denying its motion to

dismiss the health care liability claim of appellee, Ronnie Trammell, Jr., (“Trammell”),

individually, and as personal representative of the estate of Ronnie Trammell, Sr. By three

issues, the hospital argues that: (1) Trammell’s expert was not qualified to opine with

regard to the standard of care applicable to hospital employees; (2) the expert report was

insufficient because it did not identify the hospital employee allegedly at fault; and (3) the

expert report was insufficient with regard to causation. We reverse and remand.

I. BACKGROUND

Trammell filed suit against the hospital, Dialysis Specialists of South Texas, and

David Blanchard, M.D., on May 18, 2007, complaining that the defendants were negligent

in the care of his father, Ronnie Trammell, Sr. (“Trammell, Sr.”). This appeal concerns only

the claims against Spohn, which included: (1) failure to warn Trammell, Sr. of the dangers

of its treatment; (2) failure to properly perform medical treatment; (3) failure to recognize

Trammell, Sr.’s symptoms; (4) failure to inform Trammell, Sr. of his “true physical state”

after treatment; (5) failure to disclose all risks; and (6) releasing Trammell, Sr. from the

hospital to his home too soon. The petition states that Trammell, Sr. was seen in the

Spohn emergency room on December 15, 2005, because he was bleeding from a

peripheral bypass graft on his right leg. Trammell, Sr. was a dialysis patient and the

problem had been discovered earlier that day while he was receiving care at the dialysis

center. According to the petition, Trammell, Sr. was treated by Dr. David Blanchard who

2 made a handwritten note indicating that he should return to dialysis. The hospital

discharge form indicated that Trammell, Sr. should go home, follow up with his doctor, go

to dialysis, and return to the emergency room as needed. According to the pleadings,

Trammell, Sr. returned home and, during the night, suffered massive blood loss and died.

After filing suit, Trammell served an original expert report from James Wood, M.D.,

a nephrologist. Because it was insufficient, the trial court signed an order allowing

Trammell a thirty day extension to file an amended report. See TEX . CIV. PRAC . & REM .

CODE ANN . § 74.351(c) (Vernon Supp. 2008). Thereafter, on May 18, 2008, Trammell

submitted the report of Dahlia M. Hassani, M.D., which is the subject of this interlocutory

appeal.

Dr. Hassani’s report stated the she is a licensed physician specializing in emergency

medicine. With respect to the care rendered by Spohn, Dr. Hassani’s report stated:

In terms of any liability in regards to Christus Spohn Hospital Corpus Christi Memorial, assuming discharge instructions are generated by an employee of the hospital, a hospital has a duty to generate and produce documents and records that are accurate written representations of what is said verbally to the patient as well as an accurate representation of the follow up decision of the physician. In this case, Mr. Trammell’s records fail to include relevant information in the instructions that the patient should contact his surgeon. It states, “Follow up with your doctor.” Furthermore, the instructions generated are for: “Chronic Renal Failure/Bleeding Dialysis Shunt.” In this situation, the wound is postoperative from vascular surgery. These records and instructions fail to meet the proper standard of care with regard to the duties stated above. (Emphasis added).

With regard to causation, Dr. Hassani opined: “If one can assume that this

information is an essential component in the events that caused death, then a causal link

3 can be made.” (Emphasis added).

Spohn objected to the report because it did not inform the hospital of the specific

conduct called into question and it was conclusory. Spohn also claims that the report did

not properly identify the hospital employee that was allegedly at fault, nor did it sufficiently

describe any causal link. On March 16, 2009, the trial court denied Spohn’s motion to

dismiss. Spohn filed a timely notice of interlocutory appeal.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court's decision on a motion to dismiss under section 74.351 of the

Texas Civil Practice and Remedies Code for abuse of discretion. Jernigan v. Langley, 195

S.W.3d 91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d

873, 878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably or

arbitrarily or without reference to any guiding rules or principles. Walker v. Gutierrez, 111

S.W.3d 56, 62 (Tex. 2003).

Under section 74.351, a claimant must “serve on each party or the party's attorney”

an expert report and curriculum vitae “not later than the 120th day after the date the

original petition was filed.” 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

regarding applicable standards of care, the manner in which the care rendered failed to

meet the standards, and the causal relationship between that failure and the injury, harm,

or damages claimed. Id. § 74.351(r)(6).

4 In our review of an expert report, we are limited to what is within the four corners of

the report in determining whether the report manifests a good faith effort to comply with the

statutory definition of an expert report. Palacios, 46 S.W.3d at 878; see TEX . CIV. PRAC .

& REM . CODE ANN . § 74.351(l) (requiring that the trial court “grant a motion challenging the

adequacy of the expert report only if appears to the court, after hearing, that the report

does not represent an objective good faith effort to comply” with the statutory definition).

The report “need not marshal all the plaintiff's proof.” Palacios, 46 S.W.3d at 878;

Jernigan, 195 S.W.3d at 93. If the expert report puts the defendant on notice of the

specific conduct complained of and provides the trial court a basis on which to conclude

that the claims have merit, the report represents a good-faith effort to comply with the

statute. Palacios, 46 S.W.3d at 879.

The report must discuss the standard of care, breach and causation with sufficient

specificity to inform the defendant of the conduct called into question. Id. at 878-79. What

is relevant for purposes of the expert report is that the report specifically identify the person

whose conduct the plaintiff is calling into question and show how that person’s conduct

constituted negligence. Univ. of Tex. S.W. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.

App.–2006, no pet.). An opinion based upon one assumption or conclusion built upon

another is not sufficient. Hagedorn v. Tisdale, 73 S.W.3d 341, 351 (Tex. App.–Amarillo

2002, no pet.). A report should explain how the defendant’s action or inaction caused

injury. Bowie Mem.’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). A conclusory report

does not meet the statutory test because it does not satisfy Palacios. Id. A court may not

5 fill in gaps in a report by drawing inferences or guessing what the expert meant or

intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.–Austin 2007, no

pet.). Furthermore, causation may not be inferred. Castillo v. August, 248 S.W.3d 874,

883 (Tex. App.–El Paso 2008, no pet.).

III. ANALYSIS

Spohn argues in its second and third issues that the report was legally insufficient

with respect to both the standard of care and causation because it is conclusory. We

agree that Dr. Hassani’s report is insufficient with respect to causation. Dr. Hassani makes

no attempt in her report to identify the person, office, or department that is responsible for

hospital discharge orders. She does not positively state that the discharge summary in this

case was, in fact, generated by Spohn employees. Even if we were to conclude that the

hospital employees were properly identified, Dr. Hassani’s opinion with respect to

causation is wholly inadequate because it is nothing more than conjecture. An expert

report is insufficient when it contains only a series of repetitious, conclusory statements

regarding causation. See Jones v. King, 255 S.W.3d 156, 159 (Tex. App.–San Antonio

2008, pet. denied) (stating that an expert must “explain the basis of his statements to link

his conclusions to the facts”). In fact, Dr. Hassani opines that “if one can assume the

information is an essential component then a causal link can be made.” (Emphasis

added). She does not even commit to the assumption offered in her report; she merely

suggests that if an assumption can be made, then “a causal link can be made.” In other

words, she suggests that if you can assume causation, then a causal link can be made.

6 This will not support a claim because causation, in a medical malpractice case, must be

established by expert testimony. Columbia Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d

238, 246 (Tex. 2008)

Dr. Hassani’s report builds inference upon inference. The first inference she makes

is that the discharge summary was prepared by a hospital employee. There is no actual

factual basis within the four corners of the report for this assumption. Dr. Hassani’s report

attempts to stack that inference upon another inference–that the information is “an

essential component in the events that caused the death”–in an attempt to make a causal

connection. She does not state, however, that the information on the discharge summary

was an essential component in the events that caused the death. Even if we were to

assume that the report met the requirements of Palacios with respect to the standard of

care, the report does not explain how the preparation of the discharge summary caused

the injury, nor does it set forth with specificity what the hospital’s responsibilities were with

respect to the discharge orders. The report does not elucidate in any way what the

hospital did or failed to do with respect to the discharge summary. The report does not

provide a fair summary of the expert's opinions regarding what the hospital employees did

or failed to do or the causal relationship between that failure and the injury, harm, or

damages claimed. See id. § 74.351(r)(6).

Because the expert report fails to link any action or inaction by the hospital to

Trammell, Sr.’s death, it is inadequate with respect to the necessary element of causation.

Therefore, the trial court abused its discretion in failing to dismiss the case against the

7 hospital with prejudice. We sustain Spohn’s third issue. We do not address the hospital’s

other issues as they are not necessary to the disposition of this appeal. See TEX . R. APP.

P. 47.1.

IV. CONCLUSION

We reverse the order of the trial court and remand this matter to the trial court for

entry of an order dismissing Trammell’s claim against the hospital with prejudice and for

a determination of an award of reasonable attorney’s fees. See TEX . CIV. PRAC . & REM .

CODE ANN . § 74.351(b)(1).

ROSE VELA Justice

Memorandum Opinion delivered and filed this 13th day of August, 2009.