HEB GROCERY CO., LLP v. Farenik

243 S.W.3d 171, 2007 Tex. App. LEXIS 7859, 2007 WL 2846422
CourtCourt of Appeals of Texas
DecidedOctober 3, 2007
Docket04-07-00349-CV
StatusPublished
Cited by15 cases

This text of 243 S.W.3d 171 (HEB GROCERY CO., LLP v. Farenik) 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
HEB GROCERY CO., LLP v. Farenik, 243 S.W.3d 171, 2007 Tex. App. LEXIS 7859, 2007 WL 2846422 (Tex. Ct. App. 2007).

Opinion

OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

In the underlying pharmacy malpractice case, HEB Grocery Company, L.L.P. *173 (“HEB”) challenged the expert reports filed by Lisa Farenik and Wayne Farenik and moved to dismiss the case. The trial court denied HEB’s motion to dismiss, and this interlocutory appeal ensued. We affirm.

BACKGROUND

The parties stipulated that HEB pharmacist, Lori Lynn Smith, incorrectly filled Lisa Farenik’s prescription. Instead of providing Lisa with the correct prescription for Klonopin, an anti-anxiety medication, Smith gave her Clonidine, an anti-hypertensive drug designed to lower blood pressure. During the five days in which Lisa took the Clonidine, she experienced blurred vision and dizziness, symptoms commonly associated with hypotension. Eventually, Lisa suffered permanent vision loss and is now legally blind.

The Fareniks sued HEB, contending its negligence in dispensing Clonidine constituted the proximate cause of Lisa’s injuries. HEB stipulated that its pharmacist breached the standard of care by dispensing Clonidine instead of Klonopin; however, HEB specifically reserved its right to argue that the conduct of other persons was the proximate cause of Lisa’s injuries. Although not a stipulation, it is undisputed that Lisa exceeded the recommended dosage by taking the prescribed 0.1 mg of the drug at least four times per day, instead of the prescribed 0.1 mg two times per day.

The Fareniks served HEB with two expert reports, which the trial court determined were insufficient. In an attempt to cure the deficiencies, the Fareniks served HEB with an addendum to the report of only one of the experts, Dr. John E. Carter. The Fareniks did not attempt to cure the deficiencies in the report of the other expert. HEB again challenged Carter’s report, alleging among other complaints, that Carter’s report failed to provide a sufficient opinion on causation. The trial court denied HEB’s motion to dismiss. On appeal, the sole issue is whether Carter’s expert report constitutes a “good faith effort” to fairly summarize the causal relationship between HEB’s negligence and Lisa’s injuries. 2 We believe that it does.

EXPERT REPORT

A plaintiff who brings a health care liability claim is required to file an expert report that contains “a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(r)(6) (Vernon Supp.2006); see Tovar v. Methodist Healthcare Sys. of San Antonio, 185 S.W.3d 65, 67 (Tex.App.-San Antonio 2005, pet. denied). The report serves a two-fold purpose: (1) to inform the defendant of the specific conduct the plaintiff has called into question, and (2) to provide a basis for the trial court to conclude the plaintiffs claims have merit. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). If the report does not constitute a good faith effort to comply with the statutory requirements, then the trial court may dismiss the lawsuit. Tex. Civ. Peac. & Rem.Code Ann. § 74.351(b)(2).

*174 In determining whether the expert report constitutes a good faith effort, we look no further than the report itself. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (the only information relevant to the inquiry is within “the four corners” of the report). The report need not marshal all of the plaintiffs proof, however, it must include the expert’s opinion on each of the elements identified in the statute: standard of care, breach, and causation. Id. at 878; Tovar, 185 S.W.3d at 68. A plaintiff need not present evidence in the report as if it were actually litigating the merits. Palacios, 46 S.W.3d at 879. The report can be informal in that the information in the report does not have to meet the same requirement as the evidence offered in a summary judgment proceeding or at trial. Id. On the other hand, “it is not enough that the expert report ‘provided insight’ about the plaintiffs claims. Rather, to constitute a good-faith effort to establish the causal-relationship element, the expert report must fulfill Palacios’s two-part test.” Bowie Mem’l Hosp., 79 S.W.3d at 52 (citation omitted). The expert must explain the basis of his statements to link his conclusions to the facts. Id.

In the addendum to Carter’s initial report, he states as follows:

[Lisa] had normal blood pressure, actually at the lower end of normal. (According to Dr. Shaw’s chart, her blood pressure was 110/60 on 5/6/04 and it was 104/64 on 1/7/05, before she took any Clonidine).... She reportedly used 21 pills, .1 mg each, from 1/7/05 until 1/12/05, which is a significant dose, for a normotensive patient and is enough of a dose to cause significant hypotension in such a patient. She experienced symptoms attributable to systemic hypotension (dizziness, blurred vision, and mental status changes).
She was given Clonidine and experienced symptoms attributable to systemic hypotension. Given her individual blood pressure this could have been the “normal” response to Clonidine with lowering of her [blood pressure] potentially as low as 86/46. This is certainly a level at which most individuals would experience symptoms and, if sustained, would be at risk for actual ischemic infarction. Alternatively, or more likely additionally, she may be one of the patients who is more sensitive to the drug, which would accentuate her response and the resulting adverse reaction. Her symptoms were characteristic and typical of hypo-tension and were temporally related to the use of Clonidine. The dose was sufficient to cause symptomatic hypotension and maintain it for the duration of its digestion. The degree of hypotension was sufficient and prolonged enough to produce ischemic injury to the visual areas of the brain....
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Medically speaking, it is clear that [Lisa] experienced a sustained hypotensive event caused by the Clonidine that produced damage to her visual cortical areas and left her legally blind. Legally speaking, the best medical probability is the same.
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... Studies of Clonidine in humans demonstrate both a reduction in cardiac output (the amount of blood pumped by the heart) and a decrease in peripheral vascular resistance when the drug is started. The expected result is a reduction in blood pressure.

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243 S.W.3d 171, 2007 Tex. App. LEXIS 7859, 2007 WL 2846422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heb-grocery-co-llp-v-farenik-texapp-2007.