Opinion issued March 7, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00751-CV ——————————— DAVID GELBER, M.D., Appellant V. ROBERTA HAMILTON, Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2011-40346
MEMORANDUM OPINION
Appellee, Roberta Hamilton, sued appellant, David Gelber, M.D., for
medical malpractice pursuant to Texas Civil Practice and Remedies Code chapter
74. Hamilton served Dr. Gelber with an expert report, and Dr. Gelber moved to
dismiss Hamilton’s claim for failure to serve a timely, sufficient expert report. The trial court denied Dr. Gelber’s motion to dismiss. In three issues, Dr. Gelber
asserts that the trial court erred in denying his motion to dismiss, arguing that
Hamilton’s expert report failed (1) to set out an applicable standard of care; (2) to
state a breach of a standard of care; and (3) to link Hamilton’s damages to any
specific breach of an applicable standard of care.
We affirm.
Background
On July 7, 2011, Hamilton sued Dr. Gelber for medical malpractice. She
alleged that, on April 23, 2009, Dr. Gelber examined her based on her complaints
of abdominal pain and “recommended the continuation of ‘nonoperative therapy.’”
Hamilton asserted that Dr. Gelber ultimately performed “a laparoscopic
cholecystectomy,” or a laparoscopic surgery to remove Hamilton’s gallbladder, on
April 26, 2009. Hamilton alleged that, following this surgery, she “developed
swelling at the incision site and widespread infection with stool output from the
abdominal wall. Exploratory surgery was performed on May 11, 2009 revealing
an entercutaneous fistula.” Hamilton asserted that Dr. Gelber provided medical
care to her until approximately September 30, 2010. Hamilton further alleged that
she “never recovered” and “continue[d] to battle infection,” had suffered multiple
surgeries, and had been given a colostomy bag as a result of Dr. Gelber’s
negligence in treating her. Specifically, she alleged the following negligent acts by
2 Dr. Gelber: “failure to conduct appropriate pre-surgical testing and evaluation”;
“failure to exhaust nonoperative therapy”; “conducting a laparoscopic procedure
when open surgery was the appropriate technique, given Ms. Hamilton’s prior
medical history” and “failing to convert to an open technique” when it “became
clear that anatomical variants demanded the ability to observe the surgical area in
greater detail”; “failure to provide adequate post-surgical care,” including
“appropriate post-surgical testing and evaluation”; “failure to properly repair the
fistula upon obtaining diagnosis”; and “failure to provide appropriate after care to
manage the injuries caused by the surgical errors.”
As required by Civil Practice and Remedies Code chapter 74, Hamilton
served Dr. Gelber with the expert report of Dr. Arnold Seid on November 3, 2011.
In this report, Dr. Seid, a general surgeon and clinical professor of surgery at the
University of Southern California School of Medicine, detailed his credentials and
the materials he consulted in producing his report.
Dr. Seid summarized Hamilton’s course of treatment, beginning with her
initial hospitalization and Dr. Gelber’s removal of her gallbladder. Under the
heading “Post operatively,” Dr. Seid summarized the following facts: Dr. Gelber
performed a “laparoscopic cholecystectomy”; Hamilton “had previously undergone
colon resection, and while the identification of significant adhesions were noted,
there is no indication that a modification to an ‘open’ procedure was necessary or
3 considered”; post operatively, Hamilton “had consistent and multiple complaints
and symptoms including abdominal pain, fever, tachycardia, tachypnea, and
hypoxia” and “her chest x-ray consistently showed evidence of bilateral basilar
atelectasis”; Hamilton “was discharged before these problems were resolved or
adequately evaluated”; and Hamilton was readmitted two days after her original
discharge “with an enterocutaneous fistula and abdominal wall abscess which
required reoperation.”
Regarding the standard of care, Dr. Seid stated:
The standard of care for a cholecystectomy requires that a surgeon avoid causing careless or avoidable injury to the multiple organs and anatomical areas that are encountered during the surgery; and that when injury occurs, if at all possible, the injury be identified and repaired prior to the conclusion of the procedure. Additionally, when problems occur identifying anatomical areas, or from adhesions, or other surgical difficulties, the standard of care requires that the laparoscopic procedure be converted to an ‘open,’ more invasive procedure.
Dr. Seid noted that not all surgical injuries “are caused by medical care that falls
below the standard of care” and that surgical injuries are not always immediately
identifiable. He went on to state,
Given the potentially life threatening consequences posed by these [surgically caused] injuries, particularly when they are not repaired at the earliest possible moment, the standard of care requires that careful attention be paid to the patient postoperatively, and that when symptoms like those suffered by Ms. Hamilton, including abdominal pain, fever, tachycardia, tachypnea, and hypoxia occur, then bowel, bile duct and other ruptures or injuries be thoroughly investigated and ruled out. 4 Dr. Seid further opined, “Faced with clear warning signals, the standard of care
required that all reasonable measure[s] be taken to identify [Hamilton’s] problem”
and that “the surgeon has the duty and responsibility to detect and repair surgical
injuries and complications.” His report stated, “A reasonable surgeon would have
conducted additional testing, including a CT scan, or whatever tests were
necessary, including [an] exploratory procedure, if necessary; and certainly would
have kept her for observation on the date of discharge, at a bare minimum.”
Dr. Seid opined that Dr. Gelber’s care “unquestionably fell below the
standard of care regarding his post operative care for Ms. Hamilton.” Dr. Seid
identified the following failures: despite “numerous signs and symptoms of
ongoing intra-abdominal sepsis” and “fever and abdominal pain and hypoxia
which were far beyond what would be expected in an uncomplicated laparoscopic
cholecystectomy, Dr. Gelber failed to take the steps or employ the diagnostic
procedures that would have been taken or employed by a surgeon exercising
ordinary care”; the failure “to conduct an appropriate evaluation, that was
necessary to rule out an intra-abdominal source for [Hamilton’s] complaints” was
negligent; “diagnostic procedures” such as a CT scan or upright abdominal x-ray
“could and should have been utilized”; and Hamilton should not have been
released from the hospital on May 5, 2009.
5 Dr. Seid concluded, “Had [Hamilton] been properly evaluated, the surgical
injury caused by Dr. Gelber would have, based on a reasonable degree of medical
probability, been identified prior to the terrible injuries she ultimately sustained.”
He stated:
Dr. Gelber’s failure to timely identify the perforation caused by his surgical technique, and the failure to perform an appropriate diagnostic work up, fell below the standard of care. His failure to identify, evaluate, diagnose, and repair the perforation suffered during surgery, in a timely manner, after presentation of symptomology that was at a minimum significant enough to cause serious concerns, was a direct and proximate cause of the injuries suffered thereafter by Ms. Hamilton, including her subsequent abdominal rupture, abdominal pain, nausea and formation of an enterocutaneous fistula and abdominal wall abscess, VAC treatment, subsequent hospitalizations and operations, medical bills, and grave disabilities. The delay in diagnosis was the proximate cause of Ms. Hamilton’s ongoing abdominal pain, peritonitis, abdominal wall abscess, enterocutaneous fistula, post-surgical pain and discomfort, loss of abdominal wall musculature and continued abdominal problems.
Dr. Seid also stated that he had “potential concerns regarding Dr. Gelber’s
surgical method and technique,” but he did “not have sufficient information at this
time to declare with reasonable medical probability that his surgical technique fell
below the standard of care.” He indicated that additional information might cause
him to alter his opinions regarding this aspect of the care provided by Dr. Gelber.
Dr. Gelber filed “objections to the sufficiency of [Hamilton’s] expert
report,” arguing that it failed to meet the requirements of Civil Practice and
Remedies Code section 74.351. Dr. Gelber argued that the expert report failed “to
6 demonstrate a good faith effort to provide [him] with notice of the basis of
[Hamilton’s] claims” because it did not establish an appropriate standard of care, a
“concrete” breach of that standard, or the causal relationship between the breach
and any harm or damages claimed. Dr. Gelber moved to dismiss Hamilton’s
lawsuit based on his objections to Dr. Seid’s expert report.
On August 16, 2012, the trial court denied Dr. Gelber’s motion to dismiss,
and this interlocutory appeal followed.1
Standard of Review
When, as here, a plaintiff files a timely expert report as required by Civil
Practice and Remedies Code section 74.351(a), the defendant-physician may file a
motion objecting to the sufficiency of the report. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a) (Vernon Supp. 2012) (requiring plaintiff in health care
liability claim to serve expert report on each defendant within 120 days of filing
petition and providing that each defendant “must file and serve any objection to the
sufficiency of the report not later than the 21st day after the date it was
served. . . .”); Hillery v. Kyle, 371 S.W.3d 482, 489 (Tex. App.—Houston [1st
Dist.] 2012, no pet.). The trial court shall grant a motion challenging the adequacy
of an expert report only if it appears to the court that the report “does not represent
1 Texas Civil Practice and Remedies Code section 51.014(a)(9) allows interlocutory appeal in these circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (Vernon Supp. 2012). 7 an objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Hillery, 371
S.W.3d at 489. Subsection 74.351(r)(6) defines “expert report” as “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 . . . failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or damages claimed.” TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Hillery, 371 S.W.3d at 489.
The expert report need not marshal all of the plaintiff’s proof, but it must
include the expert’s opinion on the three statutory elements: standard of care,
breach, and causation. Palacios, 46 S.W.3d at 878; Hillery, 371 S.W.3d at 489.
To constitute a “good faith effort” to comply with the statute, the expert report
must provide enough information to fulfill two purposes: (1) the report must
inform the defendant of the specific conduct that the plaintiff has called into
question; and (2) the report must provide a basis for the trial court to conclude that
the claims have merit. Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 489.
Thus, section 74.351(a)’s expert report requirement serves as a “gate-keeper,”
establishing “a threshold over which a claimant must proceed to continue a
lawsuit.” See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam);
8 TTHR, L.P. v Guyden, 326 S.W.3d 316, 319 (Tex. App.—Houston [1st Dist.] 2010,
no pet.); see also Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) (“The
purpose of the expert report requirement is to deter frivolous claims, not to dispose
of claims regardless of their merits.”). Because it is a preliminary threshold, the
expert report is not admissible in and shall not be used during deposition, trial or
other proceedings, and once the requirement is met and the gate-keeping purpose
has been achieved, the claimant’s case may proceed, including full discovery. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(k), (s), (t).
An expert report that merely states the expert’s conclusions regarding the
three statutory elements does not fulfill the two purposes of the expert report.
Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 489; see also Scoresby, 346
S.W.3d at 556 (“No particular words or formality or required [in the expert report],
but bare conclusions will not suffice.”). In the report, the expert must explain the
basis for his statements and must link his ultimate conclusions to the facts of the
particular case. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per
curiam); Hillery, 371 S.W.3d at 489; see also Jelinek v. Casas, 328 S.W.3d 526,
539–40 (Tex. 2010) (“[T]he expert report must . . . explain, to a reasonable degree,
how and why the breach caused the injury based on the facts presented.”). In
assessing the sufficiency of the report, the trial court may not draw any inferences;
9 instead, it must exclusively rely upon the information contained within the four
corners of the report. Wright, 79 S.W.3d at 52; Hillery, 371 S.W.3d at 489.
We review a trial court’s ruling on a section 74.351 motion to dismiss for an
abuse of discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion
if it acts arbitrarily or unreasonably or without reference to any guiding rules or
principles. Wright, 79 S.W.3d at 52. In reviewing the ruling on a motion to
dismiss, we may not substitute our judgment for that of the trial court. Id. Mere
disagreement with the trial court’s decision is insufficient to constitute an abuse of
discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985).
Sufficiency of Expert Report
Dr. Gelber argues that the trial court abused its discretion in denying his
motion to dismiss because Hamilton’s expert report, prepared by Dr. Seid, did not
constitute a good faith effort to comply with the statute because it (1) failed to set
out an applicable standard of care; (2) failed to state a breach of a standard of care;
and (3) failed to link Hamilton’s damages to any specific breach of an applicable
standard of care. We disagree.
Dr. Seid’s report stated that the “standard of care requires that careful
attention be paid to the patient postoperatively, and that when symptoms like those
suffered by Ms. Hamilton . . . occur, then bowel and bile duct and other ruptures or
10 injuries be thoroughly investigated and ruled out.” Dr. Seid further stated that “the
surgeon has the duty and responsibility to detect and repair surgical injuries and
complications” and that “a reasonable surgeon would have conducted additional
testing, including a CT scan, or whatever tests were necessary, including [an]
exploratory procedure, if necessary; and certainly would have kept [Hamilton] for
observation on the date of discharge, at a bare minimum.”
Dr. Gelber argues that Dr. Seid’s articulation of the standard for post-
operative care was ambiguous and that Dr. Seid’s report failed to link any of the
standards of care to Dr. Gelber; however, the expert report clearly states that it was
Dr. Gelber’s duty, as the surgeon, to detect and repair surgical complications by
employing appropriate testing and other post-surgical care as enumerated in the
report. Thus, Dr. Seid set out the appropriate standard of care for the post-
operative care of patients like Hamilton. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 489.
On the element of breach of that standard, Dr. Seid opined that Dr. Gelber’s
post-operative care for Hamilton “unquestionably” fell below the standard of care.
Dr. Seid identified the following failures: despite “numerous signs and symptoms
of ongoing intra-abdominal sepsis” and “fever and abdominal pain and hypoxia
which were far beyond what would be expected in an uncomplicated laparoscopic
cholecystectomy, Dr. Gelber failed to take the steps or employ the diagnostic
11 procedures that would have been taken or employed by a surgeon exercising
ordinary care”; the failure “to conduct an appropriate evaluation, that was
necessary to rule out an intra-abdominal source for [Hamilton’s] complaints” was
negligent; “diagnostic procedures” such as a CT scan or upright abdominal x-ray
“could and should have been utilized”; Hamilton should not have been released
from the hospital on May 5, 2009; and Dr. Gelber’s “failure to timely identify the
perforation caused by his surgical technique, and the failure to perform an
appropriate diagnostic work up, fell below the standard of care.” Therefore, we
likewise conclude that the expert report contained “a fair summary” of Dr. Seid’s
opinion of the manner in which the care rendered by Dr. Gelber failed to meet the
standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6);
Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 489.
Finally, Dr. Seid identified a causal connection between Dr. Gelber’s
failures and Hamilton’s injuries. Dr. Seid stated that, had Dr. Gelber properly
evaluated Hamilton, he could have identified the surgical injury “prior to the
terrible injuries she ultimately sustained.” He further opined that Dr. Gelber’s
failure to identify and repair the perforation Hamilton suffered during the surgery
in timely manner and the delay in the diagnosis was a direct and proximate cause
of Hamilton’s injuries, including her post-operative abdominal rupture, abdominal
pain, nausea, the formation of a fistula and abdominal wall abscess, multiple
12 follow-up procedures, and “continued abdominal problems.” Thus, Dr. Seid’s
report provided a fair summary of his opinion as to the causal relationship between
Dr. Gelber’s failures and Hamilton’s injuries. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(r)(6); Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 489.
Dr. Gelber argues that this case is similar to Jelinek v. Casas. In Jelinek, the
supreme court concluded that the expert report was conclusory on the issue of
causation because it offered “no more than a bare assertion that Dr. Jelinek’s
breach resulted in increased pain and suffering and a prolonged hospital stay.” 328
S.W.3d at 540. Here, however, Dr. Seid’s report satisfied the requirement that the
expert report must “explain, to a reasonable degree, how and why the breach
caused the injury based on the facts presented.” See id. at 539–40. As we
discussed above, Dr. Seid’s report stated the alleged breach—failure to diagnose
and treat Hamilton’s bowel perforation despite “numerous signs and symptoms of
ongoing intra-abdominal sepsis” and “fever and abdominal pain and hypoxia
which were far beyond what would be expected in an uncomplicated laparoscopic
cholecystectomy”—and how the breach caused the injury—Dr. Gelber’s failures
left Hamilton’s perforation untreated for several days and led to multiple
complications requiring several subsequent procedures to treat.
Dr. Gelber further complains that Dr. Seid’s inclusion of the standard of care
regarding surgical technique—that a surgeon “avoid causing careless or avoidable
13 injury”—and statements that appear to question the method Dr. Gelber used in
performing the removal of Hamilton’s gallbladder are contradictory and
inappropriate. Dr. Seid opined that he had “potential concerns regarding Dr.
Gelber’s surgical method and technique” but did “not have sufficient information”
at the time he made the report “to declare with reasonable medical probability that
[Dr. Gelber’s] surgical technique fell below the standard of care.” Dr. Seid
observed that surgical injuries are known to happen even when the surgeon’s
technique has not fallen below the standard of care. Thus, Dr. Seid’s report
provides that Dr. Gelber caused a surgical injury, but Dr. Seid could not say, based
on the information he had at the time he filed the report, whether that injury was
caused by actions that fell below the standard of care or by surgical error that did
not fall below the standard of care. Thus, there was no “contradiction” in Dr.
Seid’s report, as Dr. Gelber alleges. Furthermore, the statements regarding Dr.
Gelber’s surgical performance did not preclude Dr. Seid from opining that Dr.
Gelber’s post-surgical care was deficient, regardless of the cause of Hamilton’s
surgical injury. See Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 123 n.3
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (declining to address adequacy of
report concerning pre-surgery breaches of standard of care when report adequately
addressed breaches occurring during surgery); Schrapps v. Pham, No. 09-12-
00080-CV, 2012 WL 4017768, at *4 (Tex. App.—Beaumont Sept. 13, 2012, no
14 pet. h.) (mem. op.) (“The expert report noted that Schrapps was unable to identify
the source of the perforation. As discovery is conducted, new information
regarding the perforation, and when it occurred, may be learned. The question at
this stage is not one of summary judgment, but whether the report represents a
good faith effort to comply with the statutory requirements.”); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(s) (staying discovery until claimant has served
expert report and curriculum vitae as required by Subsection (a)).
We conclude that Dr. Seid’s expert report did more than merely state his
conclusions; rather, Dr. Seid explained the basis for his statements and linked his
ultimate conclusions to the facts of the case. See Wright, 79 S.W.3d at 52;
Palacios, 46 S.W.3d at 879; Hillery, 371 S.W.3d at 491. The report informed Dr.
Gelber of the specific conduct that Hamilton has called into question—namely, his
enumerated failures in providing post-operative care—and provided a basis for the
trial court to conclude that Hamilton’s claims have merit. See Palacios, 46 S.W.3d
at 879; Hillery, 371 S.W.3d at 491; see also Murphy, 167 S.W.3d at 838 (stating
expert report requirement establishes “a threshold over which a claimant must
proceed to continue a lawsuit”); Guyden, 326 S.W.3d at 319 (holding that expert
report requirement serves as “gate-keeper”). Thus, Dr. Seid’s report constituted a
“good faith effort” to comply with the statute. See Palacios, 46 S.W.3d at 879;
Hillery, 371 S.W.3d at 489.
15 We overrule Dr. Gelber’s first, second, and third issues.
Conclusion
We affirm the trial court’s order denying Dr. Gelber’s motion to dismiss.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Sharp, and Huddle.