Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt

480 S.W.3d 701, 2015 Tex. App. LEXIS 11495, 2015 WL 6830198
Court of Appeals of Texas·Decided November 5, 2015·No. 01-14-00852-CV·Published·Cited by 24 cases

Opinions

OPINION

Michael Massengale, Justice

This is an interlocutory appeal from a trial court’s order ruling that the medical expert reports filed in support of a medical malpractice lawsuit are sufficient to allow the case to proceed against Doctors Earl Mangin, Jr. and Zbigniew Wojciechowski. Both doctors appeal from the trial court’s denial of their motions to dismiss.

Because the expert report was deficient as to Dr. Mangin, we reverse the trial court’s order denying his motion to' dismiss, and we remand with instructions to the court to provide, the Wendts an opportunity to cure the deficiency in accordance with the statute. Because the expert reports were adequate as to Dr. Wojciechow-ski, we affirm the trial court’s denial' of his motion to dismiss.

Background

Donald Wendt was admitted to Sugar Land Methodist Hospital with chest pain. Interventional cardiologist Dr. Earl Man-gin, Jr. performed an angioplasty and implanted a stent, but during the procedure he perforated an artery. An anesthesia provider responded to a call for assistance, administered anesthesia, and attempted to establish ventilation by intubating the patient, but at first the tube was mistakenly inserted into the esophagus. Mr. Wendt’s oxygen levels dropped to 70%,' and he. experienced cardiac arrest. Ventilation was established by alternative methods, and surgery was performed to correct the perforated artery and other' complications. Unfortunately, the loss of oxygen caused irreparable brain damage, and Mr. Wendt died two days later.

Wendt’s estate and his two daughters (collectively, the Wendts) sued the hospital and Dr.' Mangin, Dr. Zbigniew Wojcie-chowski, and “Dr. Smith.” The petition alleged that a medical record indicated that “a ‘Smith? was an anesthesiologist during the relevant periods,” although no information or address for a “Dr. Smith working for or in Hospital” could be located. The petition specifically alleged that “upon inquiry Hospital staff stated that there was no Smith and Wojciechowski [705] was the anesthesiologist during the entire relevant time,” and that “Dr. Wojciechow-ski improperly, intubated .Plaintiff placing the tube in a manner that blocked Plaintiffs ability to breath, placing the tube" in his esophagus.” The petition additionally alleged that Dr. Wojciechowski “prepared and signed the anesthesia report indicating he was present during the procedure.”

In an attempt to comply with Chapter 74 of the Texas Civil Practice and Remedies Code, the Wendts timely filed three expert reports. Both appellant doctors filed motions to dismiss the Wendts’ claims challenging the adequacy of the expert reports. As to both motions, the- Wendts argued in response that their reports were sufficient, and, in the alternative, the court should grant a 30-day extension to cure the reports because they had made a good-faith attempt to comply with the statute. After the motions to dismiss were filed, Dr. Wojciechowski served a discovery response indicating that Dr. Milan Sheth was the anesthesiologist who cared for Mr. Wendt and improperly intubated him.1

The trial court denied both doctors’ motions, and both doctors appealqd.

Analysis

The appellant doctors filed separate briefs and raised distinct arguments asserting that the court erred by denying their motions to dismiss.

A plaintiff asserting health care liability claims must serve each defendant physician or health care provider with one or more expert reports and a curriculum vitae of each expert whose opinion is offered to substantiate the merits of the claims. See Tex Civ. Prac. & Rem. Code § 74.351(a), (i); TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 42 (Tex.2013). The statute requires that such a report must provide: (1) “a. fair summary of the expert’s opinions ... regarding applicable standards of care,” (2) a statement identifying “the manner in which the- care rendered by the physician or health care provider failed to meet the standards,” and (3) an explanation of. “the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); see TTHR Ltd. P’ship, 401 S.W.3d at 44. “The expert report need not marshal every bit of the plaintiffs evidence,” Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006), but it must “explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex.2010).

When a defendant timely files a motion to dismiss challenging the adequacy of an expert report, the trial court may take one of three actions. First, if the court concludes that the report is adequate, it may deny the motion to dismiss. See, e.g., Hillery v. Kyle, 371 S.W.3d 482, 492 (Tex.App.-Houston [1st Dist.] 2012, no pet.). Second, if. the court concludes that the report does not constitute an objective good faith effort to comply with the statute, it must grant the motion to dismiss. See Tex. Civ. Prac. & Rem.Code § 74.351((); Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex.2002); see also Jernigan, 195 S.W.3d at 94. Third, if the court concludes that the report is an objective good faith effort to comply with the statute but it is nevertheless deficient in some [706] way, it may grant the plaintiff one 30-day extensión to cure the deficiency. See Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex.2011), Because the “purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits,” the Supreme Court has held that “trial courts should be lenient in granting thirty-day extensions and must do so if deficiencies in an expert report can be cured within the thirty-day period.” Scoresby, 346 S.W.3d at 554. In addition, “when the court of appeals finds deficient a report that the trial court considered adequate,” the plaintiff should be afforded one 30-day extension to cure the deficiency, if possible. Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.2008).

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Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt, 480 S.W.3d 701, 2015 Tex. App. LEXIS 11495, 2015 WL 6830198 (Tex. Ct. App. 2015).

480 S.W.3d 701 (Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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