Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00613-CV
Gary P. LAWTON, M.D., FACS, Appellant
v. Rachel Rachel JOAQUIN, Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-16544 Honorable David A. Canales, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: February 26, 2014
REVERSED AND REMANDED
Gary P. Lawton, M.D., appeals an order denying his motion to dismiss a health care liability
claim against him. We conclude the trial court abused its discretion when it denied Lawton’s
motion to dismiss, and therefore, reverse and remand.
BACKGROUND
On October 12, 2010, Lawton performed surgery—an abdominoplasty (“tummy tuck”) and
panniculectomy—on Rachel Joaquin. Joaquin subsequently filed a healthcare liability claim 04-13-00613-CV
against Lawton, alleging she suffered from “fat necrosis” following the surgery. 1 Joaquin served
Lawton with an expert report prepared by Edward P. Melmed, M.D., a plastic surgeon, as required
by section 74.351 of the Texas Civil Practice and Remedies Code. Lawton objected to the
adequacy of the report. The trial court sustained these objections and gave Joaquin a thirty-day
extension to cure the deficiency. The expert prepared a supplemental report, which was timely
served on Lawton. Thereafter, Lawton filed objections to the supplemental report and moved to
dismiss Joaquin’s healthcare liability claim with prejudice. The trial court overruled Lawton’s
objections and denied the motion to dismiss. Lawton appealed. On appeal, Lawton seeks a reversal
of the trial court’s order denying the motion to dismiss, and a remand to the trial court for a
determination of statutory attorney’s fees.
STANDARD OF REVIEW
We review the trial court’s order denying a motion to dismiss a healthcare liability claim
for an abuse of discretion. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.
Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court
abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). The trial court’s clear failure to analyze or apply the law correctly will constitute an
abuse of discretion. Walker v Packer, 827 S.W.2d 833, 840 (Tex. 1992).
DISCUSSION
When presented with a motion to dismiss a healthcare liability claim, the trial court must
determine whether the expert report represents a good faith effort to comply with the statutory
1 Necrosis is defined as “[t]he death of cells, tissues, or organs.” TABERS CYCLOPEDIC MEDICAL DICTIONARY 1549 (21st ed. 2009).
-2- 04-13-00613-CV
definition of an expert report. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878; see also
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West Supp. 2013). The statute defines an 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 the 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) (West Supp. 2013).
In evaluating an expert report, the trial court looks only to the information within the four
corners of the report and is prohibited from making any inferences. Wright, 79 S.W.3d at 52-53;
Palacios, 46 S.W.3d at 878. Although the expert report need not marshal all the plaintiff’s proof,
it must include the expert’s opinion on each of the three elements identified in the statute: standard
of care, breach, and causal relationship. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The
expert cannot merely state his conclusions about these elements in his report. Wright, 79 S.W.3d
at 52; Palacios, 46 S.W.3d at 879. The expert must explain the basis of his statements to link his
conclusions to the facts. Wright, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex.1999)). To constitute a good-faith effort to comply with the statutory definition, the expert’s
report must provide enough information to fulfill two purposes: (1) it must inform the defendant
of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the
trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. “A report that merely
states the expert’s conclusions about the standard of care, breach, and causation cannot fulfill these
two purposes.” Id.
On appeal, Lawton argues the trial court abused its discretion when it denied the motion to
dismiss. Lawton focuses on two of the three required statutory elements: breach and causal
relationship. According to Lawton, the expert’s supplemental report is deficient because it fails to -3- 04-13-00613-CV
set out (1) exactly what he did or failed to do that amounted to a failure to meet the applicable
standard of care, and (2) the causal relationship between that failure and the injury, harm, or
damages claimed by Joaquin. After reviewing both the initial expert report and the supplemental
expert report, we agree with Lawton.
As previously mentioned, the trial court found the initial expert report to be deficient and,
consistent with Chapter 74, provided Joaquin an opportunity to cure the deficiency. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(c) (West Supp. 2013). After the supplemental expert report
was filed, Lawton filed additional objections and moved to dismiss with prejudice. In reviewing
the trial court’s decision to deny the motion to dismiss, we consider both the initial and the
supplemental reports prepared by Dr. Melmed.
In his initial report, Dr. Melmed stated his opinions were based on the operative reports
and progress notes. He stated he was very disturbed that Joaquin had to have hyperbaric oxygen
treatment the day after surgery. According to Dr. Melmed, this treatment indicated there was a
severe compromise in circulation immediately following Joaquin’s surgery. Dr. Melmed identified
two external factors that “can figure into” circulatory compromise, smoking and a metabolic
disease such as diabetes. Dr. Melmed then noted that Joaquin’s medical history showed that neither
external factor applied to her. At the report’s conclusion, Dr. Melmed stated: “I do not know what
caused the failure of the blood supply from reading the operative reports . . . . I can only surmise
that something must have occurred that was not recognized at the time of surgery, nor reflected in
the operative or immediate progress notes.”
In his supplemental report, Dr. Melmed stated his opinions were based on post-operative
photographs and surgical records. According to Dr. Melmed, the post-operative photographs
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00613-CV
Gary P. LAWTON, M.D., FACS, Appellant
v. Rachel Rachel JOAQUIN, Appellee
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-16544 Honorable David A. Canales, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: February 26, 2014
REVERSED AND REMANDED
Gary P. Lawton, M.D., appeals an order denying his motion to dismiss a health care liability
claim against him. We conclude the trial court abused its discretion when it denied Lawton’s
motion to dismiss, and therefore, reverse and remand.
BACKGROUND
On October 12, 2010, Lawton performed surgery—an abdominoplasty (“tummy tuck”) and
panniculectomy—on Rachel Joaquin. Joaquin subsequently filed a healthcare liability claim 04-13-00613-CV
against Lawton, alleging she suffered from “fat necrosis” following the surgery. 1 Joaquin served
Lawton with an expert report prepared by Edward P. Melmed, M.D., a plastic surgeon, as required
by section 74.351 of the Texas Civil Practice and Remedies Code. Lawton objected to the
adequacy of the report. The trial court sustained these objections and gave Joaquin a thirty-day
extension to cure the deficiency. The expert prepared a supplemental report, which was timely
served on Lawton. Thereafter, Lawton filed objections to the supplemental report and moved to
dismiss Joaquin’s healthcare liability claim with prejudice. The trial court overruled Lawton’s
objections and denied the motion to dismiss. Lawton appealed. On appeal, Lawton seeks a reversal
of the trial court’s order denying the motion to dismiss, and a remand to the trial court for a
determination of statutory attorney’s fees.
STANDARD OF REVIEW
We review the trial court’s order denying a motion to dismiss a healthcare liability claim
for an abuse of discretion. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.
Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court
abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). The trial court’s clear failure to analyze or apply the law correctly will constitute an
abuse of discretion. Walker v Packer, 827 S.W.2d 833, 840 (Tex. 1992).
DISCUSSION
When presented with a motion to dismiss a healthcare liability claim, the trial court must
determine whether the expert report represents a good faith effort to comply with the statutory
1 Necrosis is defined as “[t]he death of cells, tissues, or organs.” TABERS CYCLOPEDIC MEDICAL DICTIONARY 1549 (21st ed. 2009).
-2- 04-13-00613-CV
definition of an expert report. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878; see also
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West Supp. 2013). The statute defines an 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 the 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) (West Supp. 2013).
In evaluating an expert report, the trial court looks only to the information within the four
corners of the report and is prohibited from making any inferences. Wright, 79 S.W.3d at 52-53;
Palacios, 46 S.W.3d at 878. Although the expert report need not marshal all the plaintiff’s proof,
it must include the expert’s opinion on each of the three elements identified in the statute: standard
of care, breach, and causal relationship. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The
expert cannot merely state his conclusions about these elements in his report. Wright, 79 S.W.3d
at 52; Palacios, 46 S.W.3d at 879. The expert must explain the basis of his statements to link his
conclusions to the facts. Wright, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex.1999)). To constitute a good-faith effort to comply with the statutory definition, the expert’s
report must provide enough information to fulfill two purposes: (1) it must inform the defendant
of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the
trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. “A report that merely
states the expert’s conclusions about the standard of care, breach, and causation cannot fulfill these
two purposes.” Id.
On appeal, Lawton argues the trial court abused its discretion when it denied the motion to
dismiss. Lawton focuses on two of the three required statutory elements: breach and causal
relationship. According to Lawton, the expert’s supplemental report is deficient because it fails to -3- 04-13-00613-CV
set out (1) exactly what he did or failed to do that amounted to a failure to meet the applicable
standard of care, and (2) the causal relationship between that failure and the injury, harm, or
damages claimed by Joaquin. After reviewing both the initial expert report and the supplemental
expert report, we agree with Lawton.
As previously mentioned, the trial court found the initial expert report to be deficient and,
consistent with Chapter 74, provided Joaquin an opportunity to cure the deficiency. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(c) (West Supp. 2013). After the supplemental expert report
was filed, Lawton filed additional objections and moved to dismiss with prejudice. In reviewing
the trial court’s decision to deny the motion to dismiss, we consider both the initial and the
supplemental reports prepared by Dr. Melmed.
In his initial report, Dr. Melmed stated his opinions were based on the operative reports
and progress notes. He stated he was very disturbed that Joaquin had to have hyperbaric oxygen
treatment the day after surgery. According to Dr. Melmed, this treatment indicated there was a
severe compromise in circulation immediately following Joaquin’s surgery. Dr. Melmed identified
two external factors that “can figure into” circulatory compromise, smoking and a metabolic
disease such as diabetes. Dr. Melmed then noted that Joaquin’s medical history showed that neither
external factor applied to her. At the report’s conclusion, Dr. Melmed stated: “I do not know what
caused the failure of the blood supply from reading the operative reports . . . . I can only surmise
that something must have occurred that was not recognized at the time of surgery, nor reflected in
the operative or immediate progress notes.”
In his supplemental report, Dr. Melmed stated his opinions were based on post-operative
photographs and surgical records. According to Dr. Melmed, the post-operative photographs
showed “a devastating compromise in the blood supply to the abdominal wall, ending upon with
full thickness skin loss of a huge amount of skin,” but “the surgical records, as dictated, make no -4- 04-13-00613-CV
mention of any problems encountered during the procedure, or how the compromised circulation
occurred.” Dr. Melmed further stated: “The standard of care requires the surgeon to preserve a
sufficient blood supply to the abdominal wall” and “a deviation from the [s]tandard of [c]are
MUST have occurred during the performance of the abdominoplasty to have compromised the
blood supply to the extent that such a large tissue loss occurred.” In conclusion, Dr. Melmed stated
“the major skin and tissue loss was caused by a major compromise of [] vascularity that occurred
during the abdominoplasty.”
Dr. Melmed’s reports identify one standard of care: the requirement that a surgeon preserve
a sufficient blood supply to the abdominal wall. However, neither report explains how a surgeon
goes about preserving a sufficient blood supply to the patient’s abdominal wall. And, neither report
explains how Lawton in particular failed to preserve a sufficient blood supply to Joaquin’s
abdominal wall.
In defending the trial court’s ruling, Joaquin argues that Dr. Melmed adequately described
Lawton’s breach of the standard of care in his reports. She points out that Dr. Melmed’s reports
ruled out, based on Joaquin’s medical history, external factors that could have caused circulatory
failure, namely smoking and a metabolic disease such as diabetes. He also indicated the
photographic record showed “a devastating compromise in the blood supply to the abdominal
wall.” Based on this information, Dr. Melmed concluded “[t]he cause of the circulatory failure
must therefore have come from something that happened during surgery.” Citing these statements,
Joaquin asserts the reports adequately explained Lawton’s breach of the standard of care. We
disagree. Dr. Melmed’s reports fail to link the circulatory failure to any specific action on Lawton’s
part. Absent such specific information about Lawton’s conduct, Dr. Melmed’s opinion that “a
deviation from the [s]tandard of [c]are MUST have occurred” is conclusory and fails to establish
the required breach of the standard of care. -5- 04-13-00613-CV
Joaquin also argues that Dr. Melmed was not required to explain how Lawton failed to
preserve a sufficient blood supply to the abdominal wall, citing Roark v. Allen, 633 S.W.2d 804,
809-10 (Tex. 1982). Again, we disagree. Roark addresses pleading requirements, not expert report
requirements, and thus has no application to the present case. See id.
Dr. Melmed’s reports contained no specific information about how Lawton breached the
standard of care or about what he should have done differently. We, therefore, hold that the reports
failed to establish one of the required statutory elements: that Lawton breached the standard of
care. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (agreeing that expert reports were
deficient because they failed to address “how Dr. Jernigan breached the standard or how his
unstated breach of duty caused [the patient’s] death with sufficient specificity for the trial court,
and Jernigan, to determine that the allegations against him had any merit.”); Palacios, 46 S.W.3d
at 879 (“Whether a defendant breached his or her duty to a patient cannot be determined absent
specific information about what the defendant should have done differently.”); Longino v.
Crosswhite, 183 S.W.3d 913, 917 (Tex. App.—Texarkana 2006, no pet.) (concluding that an
expert report was deficient when it contained no specific information about how the defendant
breached the standard of care).
Additionally, an expert’s report must address another statutory element: the causal
relationship between the breach and the injury, harm, or damages. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6). To establish a causal relationship in the present case, Dr. Melmed was
required to “explain the basis of his statements to link his conclusions to the facts.” See Wright, 79
S.W.3d at 52. Although Dr. Melmed concluded that the injury—“major skin and tissue loss”—
was caused by “a major compromise of [] vascularity that occurred during the abdominoplasty,”
there is no information in the reports linking this “major compromise of [] vascularity” to Lawton’s
conduct during Joaquin’s surgery. In fact, in the supplemental report, Dr. Melmed states that “the -6- 04-13-00613-CV
surgical records, as dictated, make no mention of any problems encountered during the procedure,
or how the compromised circulation occurred.” Therefore, Dr. Melmed’s reports fail to establish
yet another required statutory element: causation. Hutchinson v. Montemayor, 144 S.W.3d 614,
618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a
healthcare liability claim when the expert’s report did not set forth facts or explain the medical
basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor,
131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion
was conclusory and did not fulfill statutory causation requirements when it did not provide
information linking the doctor’s actions to the patient’s death).
We conclude the information in Dr. Melmed’s reports (1) failed to inform Lawton of the
specific conduct called into question, and (2) failed to provide a basis for the trial court to conclude
that Joaquin’s claim had merit. Therefore, the trial court abused its discretion denying the motion
to dismiss.
CONCLUSION
We reverse the trial court’s order denying the motion to dismiss, and remand this case to
the trial court for (1) entry of an order granting the motion to dismiss with prejudice, and (2) other
proceedings consistent with our opinion.
Karen Angelini, Justice
-7-