Doades v. Syed

94 S.W.3d 664, 2002 WL 31249906
CourtCourt of Appeals of Texas
DecidedNovember 19, 2002
Docket04-01-00640-CV
StatusPublished
Cited by100 cases

This text of 94 S.W.3d 664 (Doades v. Syed) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doades v. Syed, 94 S.W.3d 664, 2002 WL 31249906 (Tex. Ct. App. 2002).

Opinions

Opinion by:

SARAH B. DUNCAN, Justice.

This appeal arises out of the trial court’s dismissal of a medical malpractice lawsuit. We hold the trial court acted within the ambit of its discretion in dismissing the [667]*667suit because the plaintiffs expert report is not sufficient and does not represent a “good faith effort to comply with the [statutory] definition of an expert report”; it fails to set forth the standard of care for each health care provider and contains mere conclusions regarding breach and causation. We further hold the trial court did not err in denying an extension of time in which to file a complying expert report because the motion requesting an extension fails to allege that the failure to file a complying report was the result of “an accident or mistake.” Finally, we hold the trial court acted properly in reopening the evidence to permit defense counsel to respond to an objection that there was no evidence to support the trial court’s attorney’s fees award. Given these holdings, we affirm the trial court’s judgment.

Factual and PROCEDURAL Background

On September 9, 1999, Thomas Doades presented at the emergency room of Sid Peterson Hospital with abdominal pain. His gallbladder was removed, but the pain continued. A stone in his common bile duct was suspected. Accordingly, the following day, Doades was put under conscious sedation while Dr. Kamal A. Syed performed an “ERCP” procedure in an attempt to locate and remove the stone. Near the end of the procedure, Thomas Doades quit breathing. Although he was resuscitated, he was in essence “brain dead”; and, on September 15,1999, he was declared legally dead.

On November 15, 2000, Thomas Doades’ widow, Janet Doades, and her daughter Lynn filed a medical malpractice lawsuit against Dr. Syed; his employer, Hill Country Specialty Clinic; and Sid Peterson Memorial Hospital. Doades alleged Syed was negligent in “failing to properly monitor Mr. Doades during the procedure, by failing to follow and respond to vital signs, and by failing to timely and appropriately respond to respiratory arrest, among others.” Doades repeated these same allegations against the Hospital.

On December 11, Syed and the Clinic filed special exceptions alleging that Doades’ allegation that they “‘failfed] to timely and appropriately respond to respiratory arrest, among others’ ... is vague and does not apprise these Defendants of the particular acts and/or omissions alleged.” The Hospital also filed special exceptions alleging that Doades’ petition “does not advise [the Hospital] by or through whom any negligence is alleged to have occurred.”

On February 12, 2001, Doades attorneys filed an expert report prepared by Dr. Steven Holtzman and dated April 4, 2000. See Texas Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1) (Vernon Supp. 2001). Dr. Holtzman’s report states in its entirety as follows:

I am submitting the following report to provide a fair summary of my opinion regarding the applicable standards of care, the manner in which the care failed to meet the standards and the causal relationship between that failure and the harm, injury, or damages incurred by the Plaintiff.
I am a physician licensed to practice in all its branches under the laws of the State of Texas. I am a Diplómate of the American Board of Surgery and have been certified since 1978. I have been recertified in 1988 and 1997. I have practiced medicine and surgery since 1972 and am competent to render the opinions hereinafter expressed.
I am familiar with the applicable standard of care in Texas.
I have reviewed the following materials with regard to the medical care and treatment of Thomas Doades: 9/8/99 Sid [668]*668Peterson Memorial Hospital admission, 9/7/99 colonoscopy report, office records of Dr. Pelton and the autopsy report. Briefly, on 9/9/99 Dr. T.A. Berg performed laparoscopic cholecystectomy upon Doades at Sid Peterson Memorial Hospital. An operative cholangiogram suggested the presence of a common duct stone. On 9/10/99, Dr. Kamal A. Syed attempted to perform ERCP upon Doades. Dr. Syed gave Doades intravenous Versed and Demerol. After 35 minutes, Dr. Syed was forced to abort the procedure when Doades experienced a cardiorespiratory arrest. Doades was resuscitated but experienced anoxic encephalopathy and expired five days later.
I am of the opinion, based upon reasonable probability that Dr. Syed and the Sid Peterson Memorial Hospital nurse departed from acceptable standards of medical care during the ERCP upon Doades (1) by failing to properly monitor Doades and (2) by failing to timely identify and properly treat cardiorespi-ratory complications which subsequently developed. Additionally, Dr. Syed and the Sid Peterson Memorial Hospital nurse may have lacked the proper training, proficiency and experience necessary to administer intravenous sedation. It is my opinion that the departure from the acceptable standard of medical care by Dr. Syed and the Sid Peterson Memorial Hospital nurse proximately caused the death of Thomas Doades.

On May 15, 2001, the Hospital moved to dismiss Doades’ lawsuit. The Hospital alleged that Holtzman’s affidavit was deficient as a matter of law for the following reasons:

(1)Nowhere does the “expert report” filed by [Doades] provide a fair summary that would enable [the Hospital] to know which of the four nurses involved directly in the procedure is alleged to have failed to meet applicable standards of care....
(2) [T]he statement that “the Sid Peterson Memorial Hospital nurse may have lacked the proper training, proficiency and experience” is not a statement that the health care provider failed to meet the standards and does not establish the causal relationship between that failure and the injury as required by the statute.
(3) [T]he “expert” ... does not state what the standard of care is for the treatment of this patient.
(4) [T]he report just sets forth conclusions but not facts.

The Hospital’s motion was supported by its attorney’s affidavit, which states “[t]here were four nurses from Sid Peterson Memorial Hospital involved during the procedure.”

On June 13, 2001, Doades responded, arguing that Dr. Holtzman’s report was sufficient. Alternatively, Doades alleged Dr. Holtzman’s report “represents more than a good faith effort to provide a fair summary of [Doades’] claims” and sought a thirty-day extension to provide additional reports pursuant to sections 13.01(f) and (g) of article 4590L Doades also alleged that “only within the past six weeks [with the release of American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001) ] has [the language in Dr. Holtzman’s report] been deemed potentially ‘insufficient.’ Accordingly, [Doades] move[s] the Court for 30 days to comply with this new opinion from the Texas Supreme Court.” See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(f)-(g) (Vernon Supp.2001). Doades supported her response with her attorney’s affidavit, in which he states his belief that Dr. Holtz-[669]*669man’s April 4, 2000 report satisfies the statutory requirements.

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Bluebook (online)
94 S.W.3d 664, 2002 WL 31249906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doades-v-syed-texapp-2002.