COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00060-CV
D.W., AS NEXT FRIEND OF M.M.W. APPELLANTS AND T.F.W., MINOR CHILDREN, AND THE INDEPENDENT ADMINISTRATOR OF THE ESTATE OF K.H., DECEASED; DEBORAH HARRIS, INDIVIDUALLY, AS NEXT KIN OF K.H., DECEASED; AND CLARENCE HAYNES, INDIVIDUALLY, AS NEXT KIN OF K.H., DECEASED
V.
RAJA SAWHNEY, M.D. APPELLEE
----------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 17-265501-13
MEMORANDUM OPINION 1
1 See Tex. R. App. P. 47.4. This is a health care liability case. Appellants D.W. (as Next Friend of
M.M.W. and T.F.W., Minor Children, and the Independent Administrator of the
Estate of K.H., Deceased); Deborah Harris (Individually, as Next Friend of K.H.,
Deceased); and Clarence Haynes (Individually, as Next Friend of K.H.,
Deceased) (collectively Family) sued Appellee Dr. Raja Sawhney and others
after the death of K.H. In a prior opinion, this court considered the adequacy of
the expert report of Dr. Neal Gerstein as to the hospital at which K.H. died. 2 We
held in that case that Dr. Gerstein’s report was adequate. 3 In this case, Family
appeals from the dismissal of its claims against Dr. Sawhney, the ear, nose, and
throat (ENT) doctor who performed the surgery that led to K.H.’s death.
Family initially served Dr. Sawhney with Dr. Gerstein’s report, but after the
trial court sustained Dr. Sawhney’s objections to the report, it served Dr.
Sawhney with an expert report by Dr. Douglas K. Holmes, an ENT doctor. After
the trial court dismissed Family’s claims against Dr. Sawhney, it filed this appeal.
Family argues in one issue that the trial court abused its discretion by dismissing
its claims against Dr. Sawhney. Because we hold that the expert report served
by Family represents a good faith effort to comply with the expert report
requirement, we reverse the trial court’s order dismissing Family’s claims.
2 Wiley v. Baylor All Saints Med. Ctr. at Fort Worth, No. 02-13-00375-CV, 2014 WL 888452, at *2, *4 (Tex. App.—Fort Worth Mar. 6, 2014, no pet.) (mem. op.). 3 Id. at *4.
2 K.H.’s Death at Baylor Hospital
The alleged facts giving rise to this suit are as follows. In February 2011,
K.H. was admitted to Harris Methodist Hospital with pneumonia, acute
exacerbation of asthma, and respiratory difficulty due to tracheal stenosis. K.H.
had a history of subglottic stenosis. While at that facility, K.H.’s condition initially
improved but then worsened. A doctor there believed that K.H. had an acute
pulmonary edema secondary to the stenosis and that she would benefit from a
laser procedure to dilate the stenosis. He recommended that she be transferred
to Baylor All Saints Medical Center at Fort Worth for that procedure. K.H. was
transferred to Baylor in stable condition.
At Baylor, members of its ENT and pulmonology departments examined
K.H. She was scheduled for a bronchoscopy by Dr. Raja Sawhney, an
otolaryngologist. Dr. Adam Lenz was the attending anesthesiologist. Brian
Birmingham, a certified registered nurse anesthetist, attempted to intubate K.H.
with a #6 endotracheal tube (ETT) but failed. A second attempt by Dr. Lenz was
successful.
For reasons not clear from K.H.’s medical records, this tube was removed,
and an attempt was made with a #8 tube. After an unspecified number of
unsuccessful attempts with the #8 tube, intubation was tried with a #7 tube, but
this attempt was also unsuccessful. The medical records are not clear as to who
removed the #6 tube and tried the larger tubes. The #6 tube was then
reinserted.
3 K.H. began deteriorating, and although attempts at resuscitation were
made, she ultimately died. After K.H.’s death, the autopsy determined that her
cause of death was a 2 cm x 2 cm perforation in the trachea wall. Family sued
Baylor, NorthStar Anesthesia, P.A., Birmingham, Dr. Lenz, and Dr. Sawhney.
Family served Dr. Sawhney with the expert report of Dr. Gerstein. Dr.
Sawhney filed objections to the report and a motion to dismiss arguing that Dr.
Gerstein’s report was deficient because it (1) failed to demonstrate that Dr.
Gerstein was qualified to render expert opinions as to Dr. Sawhney, an ENT
surgeon, (2) failed to establish a standard of care applicable to Dr. Sawhney and
how that standard of care was breached, and (3) failed to establish causation.
The proceedings in this case
In this court’s opinion in the appeal against Baylor, we stated that “Dr.
Gerstein’s report set out a standard of care, a breach of that standard, and
causation as to Dr. Sawnhey.” 4 Before we issued our opinion in that case,
however, the trial court sustained Dr. Sawhney’s objections to Dr. Gerstein’s
report and granted Family’s request for a thirty-day extension to cure the
deficiencies. Family then filed the expert report of Dr. Holmes.
Dr. Sawhney filed objections to Dr. Holmes’s report and a motion to
dismiss Family’s claims against him. The motion stated that Dr. Holmes’s report
showed that he was qualified to opine on the standard of care with respect to Dr.
4 Id.
4 Sawhney but failed to cure the deficiencies of the prior report regarding the
standard of care, breach, and causation. The trial court granted Dr. Sawhney’s
motion and dismissed Family’s claims. Family now appeals.
Standard of Care and Applicable Law
We review a trial court’s ruling on a motion to dismiss under civil practice
and remedies code section 74.351 for an abuse of discretion. 5 We also review a
trial court’s determination of an expert’s qualifications for an abuse of discretion. 6
A plaintiff asserting a health care liability claim must provide an expert
report in support of the claim. 7 An expert report must meet three elements: (1)
“it must fairly summarize the applicable standard of care”; (2) “it must explain
how a physician or health care provider failed to meet that standard”; and (3) “it
must establish the causal relationship between the failure and the harm
alleged.” 8 If a report satisfies these elements as to any theory of liability against
a defendant, the plaintiff may proceed on the suit against that defendant. 9
5 Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied). 6 Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 266 (Tex. App.—Fort Worth 2009, no pet.). 7 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2013). 8 Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). 9 Id.
5 Upon a defendant’s motion, the trial court must dismiss the claims against
the defendant if the plaintiff’s expert report does not represent an objective good
faith effort to comply with these requirements. 10 A report qualifies as an objective
good faith effort if the report “(1) inform[s] the defendant of the specific conduct
the plaintiff questions, and (2) provide[s] a basis for the trial court to conclude
that the plaintiff’s claims have merit.” 11 The report “meets the minimum
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00060-CV
D.W., AS NEXT FRIEND OF M.M.W. APPELLANTS AND T.F.W., MINOR CHILDREN, AND THE INDEPENDENT ADMINISTRATOR OF THE ESTATE OF K.H., DECEASED; DEBORAH HARRIS, INDIVIDUALLY, AS NEXT KIN OF K.H., DECEASED; AND CLARENCE HAYNES, INDIVIDUALLY, AS NEXT KIN OF K.H., DECEASED
V.
RAJA SAWHNEY, M.D. APPELLEE
----------
FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 17-265501-13
MEMORANDUM OPINION 1
1 See Tex. R. App. P. 47.4. This is a health care liability case. Appellants D.W. (as Next Friend of
M.M.W. and T.F.W., Minor Children, and the Independent Administrator of the
Estate of K.H., Deceased); Deborah Harris (Individually, as Next Friend of K.H.,
Deceased); and Clarence Haynes (Individually, as Next Friend of K.H.,
Deceased) (collectively Family) sued Appellee Dr. Raja Sawhney and others
after the death of K.H. In a prior opinion, this court considered the adequacy of
the expert report of Dr. Neal Gerstein as to the hospital at which K.H. died. 2 We
held in that case that Dr. Gerstein’s report was adequate. 3 In this case, Family
appeals from the dismissal of its claims against Dr. Sawhney, the ear, nose, and
throat (ENT) doctor who performed the surgery that led to K.H.’s death.
Family initially served Dr. Sawhney with Dr. Gerstein’s report, but after the
trial court sustained Dr. Sawhney’s objections to the report, it served Dr.
Sawhney with an expert report by Dr. Douglas K. Holmes, an ENT doctor. After
the trial court dismissed Family’s claims against Dr. Sawhney, it filed this appeal.
Family argues in one issue that the trial court abused its discretion by dismissing
its claims against Dr. Sawhney. Because we hold that the expert report served
by Family represents a good faith effort to comply with the expert report
requirement, we reverse the trial court’s order dismissing Family’s claims.
2 Wiley v. Baylor All Saints Med. Ctr. at Fort Worth, No. 02-13-00375-CV, 2014 WL 888452, at *2, *4 (Tex. App.—Fort Worth Mar. 6, 2014, no pet.) (mem. op.). 3 Id. at *4.
2 K.H.’s Death at Baylor Hospital
The alleged facts giving rise to this suit are as follows. In February 2011,
K.H. was admitted to Harris Methodist Hospital with pneumonia, acute
exacerbation of asthma, and respiratory difficulty due to tracheal stenosis. K.H.
had a history of subglottic stenosis. While at that facility, K.H.’s condition initially
improved but then worsened. A doctor there believed that K.H. had an acute
pulmonary edema secondary to the stenosis and that she would benefit from a
laser procedure to dilate the stenosis. He recommended that she be transferred
to Baylor All Saints Medical Center at Fort Worth for that procedure. K.H. was
transferred to Baylor in stable condition.
At Baylor, members of its ENT and pulmonology departments examined
K.H. She was scheduled for a bronchoscopy by Dr. Raja Sawhney, an
otolaryngologist. Dr. Adam Lenz was the attending anesthesiologist. Brian
Birmingham, a certified registered nurse anesthetist, attempted to intubate K.H.
with a #6 endotracheal tube (ETT) but failed. A second attempt by Dr. Lenz was
successful.
For reasons not clear from K.H.’s medical records, this tube was removed,
and an attempt was made with a #8 tube. After an unspecified number of
unsuccessful attempts with the #8 tube, intubation was tried with a #7 tube, but
this attempt was also unsuccessful. The medical records are not clear as to who
removed the #6 tube and tried the larger tubes. The #6 tube was then
reinserted.
3 K.H. began deteriorating, and although attempts at resuscitation were
made, she ultimately died. After K.H.’s death, the autopsy determined that her
cause of death was a 2 cm x 2 cm perforation in the trachea wall. Family sued
Baylor, NorthStar Anesthesia, P.A., Birmingham, Dr. Lenz, and Dr. Sawhney.
Family served Dr. Sawhney with the expert report of Dr. Gerstein. Dr.
Sawhney filed objections to the report and a motion to dismiss arguing that Dr.
Gerstein’s report was deficient because it (1) failed to demonstrate that Dr.
Gerstein was qualified to render expert opinions as to Dr. Sawhney, an ENT
surgeon, (2) failed to establish a standard of care applicable to Dr. Sawhney and
how that standard of care was breached, and (3) failed to establish causation.
The proceedings in this case
In this court’s opinion in the appeal against Baylor, we stated that “Dr.
Gerstein’s report set out a standard of care, a breach of that standard, and
causation as to Dr. Sawnhey.” 4 Before we issued our opinion in that case,
however, the trial court sustained Dr. Sawhney’s objections to Dr. Gerstein’s
report and granted Family’s request for a thirty-day extension to cure the
deficiencies. Family then filed the expert report of Dr. Holmes.
Dr. Sawhney filed objections to Dr. Holmes’s report and a motion to
dismiss Family’s claims against him. The motion stated that Dr. Holmes’s report
showed that he was qualified to opine on the standard of care with respect to Dr.
4 Id.
4 Sawhney but failed to cure the deficiencies of the prior report regarding the
standard of care, breach, and causation. The trial court granted Dr. Sawhney’s
motion and dismissed Family’s claims. Family now appeals.
Standard of Care and Applicable Law
We review a trial court’s ruling on a motion to dismiss under civil practice
and remedies code section 74.351 for an abuse of discretion. 5 We also review a
trial court’s determination of an expert’s qualifications for an abuse of discretion. 6
A plaintiff asserting a health care liability claim must provide an expert
report in support of the claim. 7 An expert report must meet three elements: (1)
“it must fairly summarize the applicable standard of care”; (2) “it must explain
how a physician or health care provider failed to meet that standard”; and (3) “it
must establish the causal relationship between the failure and the harm
alleged.” 8 If a report satisfies these elements as to any theory of liability against
a defendant, the plaintiff may proceed on the suit against that defendant. 9
5 Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied). 6 Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 266 (Tex. App.—Fort Worth 2009, no pet.). 7 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2013). 8 Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). 9 Id.
5 Upon a defendant’s motion, the trial court must dismiss the claims against
the defendant if the plaintiff’s expert report does not represent an objective good
faith effort to comply with these requirements. 10 A report qualifies as an objective
good faith effort if the report “(1) inform[s] the defendant of the specific conduct
the plaintiff questions, and (2) provide[s] a basis for the trial court to conclude
that the plaintiff’s claims have merit.” 11 The report “meets the minimum
qualifications for an expert report under the statute ‘if it contains the opinion of an
individual with expertise that the claim has merit, and if the defendant’s conduct
is implicated.’” 12
Analysis
Dr. Holmes’s report included at least two standards of care, the breach of
which had, in his opinion, caused K.H.’s death. First, Dr. Holmes discussed the
insertion and removal of the larger ETTs. As to the standard of care, Dr. Homes
stated that “[a] thorough knowledge of the outer dimensions of any endotracheal
tube to be inserted in the trachea of this patient should be considered in the
context of [K.H.’s] tracheal dimensions prior to anesthesia induction.” “The
placement of the 6.0 [ETT] which has an outer diameter measurement of 8.2 mm
was within the applicable standard of care.” “[A] 6.0 ETT was the largest tube
10 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). 11 Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). 12 Id. (quoting Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011)).
6 which could be inserted safely without compromising or injuring the patient’s
narrowed trachea,” and “if a larger ETT was needed for some reason at that point
[after the 6.0 ETT was inserted], the surgical plan should have been modified or
the procedure should have been terminated.”
As for a breach of the standard of care, Dr. Holmes stated that “[t]o remove
the 6.0 ETT and attempt to insert an 8.0 ETT (outer diameter measurement of 11
mm) or a 7.0 ETT (outer diameter of 9.6 mm) into the severely narrowed airway
of this patient was a deviation from the acceptable standard of care in the
treatment of this patient.” “According to the intraoperative records, either Dr.
Sawhney or the anesthesiology team removed the 6.0 ETT and unsuccessfully
tried to insert first an 8.0 ETT and then followed unsuccessfully with a 7.0 ETT.”
But “[t]o attempt to insert an endotracheal tube greater than a size 6.0 (inner
diameter) was negligent of the surgical and anesthesiology teams.”
As for causation of K.H.’s death due to the breach of the standard of care,
Dr. Holmes stated:
Unable to place either of these tubes, a 6.0 ETT was reinserted. The attempts at placing each of the larger (7.0, 8.0) ETTs and re- inserting of the 6.0 ETT fell below the standard of care for this patient and in all medical probability caused the fatal injury to her trachea.
He stated that “Dr. Sawhney, as the surgeon, should not have placed or allowed
the larger tubes to be placed into this patient’s narrowed trachea.” And “[t]he
medical record is unclear as to how many attempts to place the 7.0 ETT and 8.0
ETTs into the airway of the patient were made,” but “[u]ndoubtedly, the force of
7 attempting to insert and remove these larger ETTs and replacing the 6.0 ETT in
all medical probability led to the lethal injury of the patient’s perforated trachea.”
A second breached standard of care that led to K.H.’s death as set out by
Dr. Holmes was Dr. Sawnhey’s failure to perform a tracheotomy when it was
needed. Regarding the standard of care and the breach of that standard, Dr.
Holmes stated that “a 6.0 ETT was the largest tube which could be inserted
safely without compromising or injuring the patient’s narrowed trachea,” and after
the 6.0 ETT was placed after two intubation attempts, “[i]t was incumbent upon
Dr. Sawhney to make the decision as to whether he could perform his surgical
procedure with the 6.0 ETT in place or possibly with the intermittent
removal/replacement of the 6.0 ETT.” “The standard of care in this case called
for Dr[.] Sawhney to perform a tracheotomy after the initial placement of the 6.0
tube and realizing he could neither perform his dilation no[r] ventilate the patient
well with the 6.0 tube.” “The patient needed a larger airway than that afforded by
a 6.0 tube,” and “[b]y the CT measurement, it should have been clear that the
airway was not large enough to allow a 7.0 or 8.0 tube.” “Instead, she needed a
tracheototomy to secure a safe airway.”
As for causation, Dr. Holmes stated that “[h]ad th[e] tracheotomy been
performed [as called for by the applicable standard of care] after the initial 6.0
intubation, the patient would have in all reasonable medical probability not
suffered the perforation of her trachea,” an injury he described as “lethal.”
8 We hold that Dr. Holmes’s expert report informed Dr. Sawhney of the
specific conduct that Family questions and provided a basis for the trial court to
conclude that Family’s claims have merit, and as such, it qualified as an objective
good faith effort to comply with the requirements of section 74.351. 13
Accordingly, the trial court abused its discretion by dismissing Family’s claims
against Dr. Sawhney. We sustain Family’s sole issue.
Having sustained Family’s sole issue, we reverse the trial court’s order
dismissing Family’s claims against Dr. Sawhney, and we remand this case for
further proceedings.
/s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: July 3, 2014
13 See id.