Estorque v. Schafer

302 S.W.3d 19, 2009 Tex. App. LEXIS 7343, 2009 WL 2972892
Court of Appeals of Texas·Decided September 17, 2009·No. 2-08-424-CV·Published·Cited by 68 cases

Opinion

OPINION

ANNE GARDNER, Justice.

I. Introduction

This is an interlocutory appeal from a denial of a motion to dismiss challenging the sufficiency of an expert report in a health care liability claim. Appellants are Dr. Pedro Estorque, Jr., individually and d/b/a Pedro Estorque, Jr., M.D., P.A., and Dr. Amjad Awan, individually and d/b/a North Texas Gastroenterology Consultants, P.A. Appellants challenge the trial court’s order denying their motions to dismiss the expert report submitted by Ap-pellees Shirley Schafer and Anthony Schafer. In three issues, Dr. Estorque argues that the trial court abused its discretion by denying his motion because the Schafers’ expert report (1) evidenced the expert’s lack of qualifications to opine on causation, (2) lacked sufficient explanation of the causal relationship between the breach of care and injury, and (3) lacked explanation of the negligence claim against Pedro Estorque’s professional association. Dr. Awan raises the same expert qualifications, causation, and professional association arguments as Dr. Estorque and additionally challenges the report’s identical criticisms of both his actions and Dr. Est-orque’s actions. 1 We affirm in part and reverse in part.

II. Factual and procedural background

The Schafers’ original petition contained the following allegations: on March 6, 2006, Shirley arrived at the Presbyterian Hospital emergency room, presenting with severe abdominal pain. Her family physician, Dr. Estorque, admitted her to the hospital for evaluation. Dr. Estorque performed a CT scan on Shirley’s abdomen and pelvis. The examination report noted a “4.8 centimeter cyst on the right ovary and a smaller cyst on the left ovary,” a “dilated upper left pale collecting system with a dilated left ureter where a 3.0 millimeter kidney stone was visualized,” and “an inflammatory focus related to sigmoid diverticulitis.” Dr. Estorque referred Shirley to a gastroenterologist, Dr. Amjad Awan, who consulted during her hospitalization. Dr. Awan further investigated her gastrointestinal-related symptoms and treated Shirley for alleged diverticulitis starting in April 2006. Neither Dr. Est-orque nor Dr. Awan referred Shirley to any other doctors.

Shirley continued to feel abdominal pain for nine months after her consultations with both doctors. In December, she consulted with Dr. Fred Cummings, her gynecologist, who reviewed Shirley’s chart from her March 6 hospital visit, noting her gynecological and renal issues. 2 On December 2, a new CT scan of her abdomen and pelvis revealed that the 4.8 centimeter cyst revealed in the previous March 6 CT scan had enlarged to 7.2 centimeters and that her left kidney demonstrated “a markedly distended upper pale collecting system” and “intrarenal calculi.” Dr. Cummings performed a laparoscopic oophorectomy. 3 On December 9, 2006, Dr. Admire per *24 formed a cystoscopy, left ureteroscopy, and removal of the stone, with placement of stents in the ureters. The ovarian cysts were benign; however, the delay in treating Shirley’s renal problems allegedly resulted in loss of the “total function of one kidney.”

On May 19, 2008, the Schafers sued Appellants for negligence, asserting that Dr. Estorque and Dr. Awan breached their standards of care when they each viewed the CT scan results and failed to obtain gynecological and urological consults for Shirley. Within 120 days of filing suit, the Schafers served the statutorily-required expert report on Appellants. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2008). Dr. Keith Miller, a board-certified family physician, wrote the report.

Dr. Awan and Dr. Estorque filed motions to dismiss,'objecting to'the adequacy of the expert report. Dr. Awan objected to (1) Dr. Miller’s qualifications to opine as to the standard of care, (2) Dr. Miller’s qualifications as to causation, (3) Dr. Miller’s failure to provide sufficient information regarding standard of care and causation for each individual physician, and (4) Dr. Miller’s speculative causation opinions. Dr. Estorque also objected to (1) Dr. Miller’s qualifications to render an opinion on causation and (2) the sufficiency of the report to meet the statutory and case law requirements for causation.

The trial court overruled the objections and denied the motions to dismiss. This interlocutory appeal immediately followed. 4

III. Standard of review

A trial court’s ruling concerning an expert report under section 74.351 (formerly article 4590i, section 13.01) of the Medical Liability and Insurance Act is reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

IV. Statutory requirements

A health care liability claimant must serve an expert report on each defendant no later than the 120th day after the claim is filed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351. If the claimant does not serve an expert report on a defendant physician or health care provider within the 120-day period, then on the motion of the affected physician or health care provider, the trial court must dismiss the claim with prejudice. Id. § 74.351(b).

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Estorque v. Schafer, 302 S.W.3d 19, 2009 Tex. App. LEXIS 7343, 2009 WL 2972892 (Tex. Ct. App. 2009).

302 S.W.3d 19 (Estorque v. Schafer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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