COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-256-CV
ILENE
EHRLICH APPELLANT
V.
DR.
WILLIAM MILES, M.D. APPELLEE
INDIVIDUALLY
------------
FROM
THE 153RD DISTRICT COURT OF TARRANT COUNTY
OPINION
Appellant
Ilene Ehrlich filed this medical malpractice suit against Appellee Dr. William
Miles for injuries that resulted from a face lift and cheek implants. Appellee
filed a motion to dismiss, alleging that Appellant’s expert report was not
sufficient. Appellant then filed a motion to extend time to file an expert
report. The trial court denied Appellant’s motion for extension and granted
Appellee’s motion to dismiss. In two points, Appellant now appeals. Because we
hold that Appellant’s expert was not qualified to testify to all of the
statements made in his report, that the causation portion of his report does not
specify that the individual acts that he is qualified to testify about
independently caused the injury, and Appellant does not qualify for an extension
to file an expert report, we affirm the trial court’s judgment.
Facts
Appellee
performed plastic surgery on Appellant, giving her a face lift and cheek
implants. After the surgery, the implants became infected. At first, Appellee
treated Appellant’s infection with antibiotics. When the antibiotics did not
help, he removed the cheek implants. Appellant then began to see another doctor
for the treatment of the pain and numbness in her face. Because Appellant was
told that the surgery and the treatment of the infection had caused permanent
nerve damage in her face, she filed this suit.
Within
180 days of filing suit, as required by the Texas Medical Liability and
Insurance Improvement Act (“the Act”),1 Ehrlich
filed an expert report prepared by Dr. Charles Marable. Appellee alleged that
the report was not sufficient and filed a motion to dismiss, alleging, among
other things, that Dr. Marable is not qualified as an expert and that his expert
report was not a good faith effort to comply with the statute. Appellant filed a
response to the motion and requested in the alternative that the court grant a
motion for extension of time to file a new report.2
The trial court denied the extension of time and granted the motion to dismiss.
In
two points, Appellant argues that the trial court abused its discretion by (1)
granting the motion to dismiss and ruling that Appellant’s expert report was
not a good faith effort to comply with the statute’s requirement of an
expert’s report and (2) denying Appellant’s motion for an extension of time
under section 13.01(g) of article 4590i, because the failure to timely file an
expert report that complied with the statute’s requirements was not
intentional or the result of conscious indifference.
Standard of
Review
Dismissal
of a cause of action under article 4590i, section 13.01 is treated as a sanction
and is reviewed for an abuse of discretion.3
An abuse of discretion occurs when a trial court acts in an arbitrary or
unreasonable manner or without reference to any guiding principles.4 A trial court does not abuse its discretion simply
because it may decide a matter within its discretion differently than an
appellate court.5 However, a trial court has
no discretion in determining what the law is or in applying the law to the
facts.6 Thus, “a clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of
discretion.”7
Expert Report
Requirement
The
Act sets forth explicit requirements for plaintiffs asserting healthcare
liability claims.8 The Act requires a
plaintiff asserting a healthcare liability claim to submit an expert report,
along with the expert’s curriculum vitae, for each physician or healthcare
provider named as a defendant in the suit, no later than the 180th day after
filing suit.9 If a plaintiff timely files an
expert report and the defendant moves to dismiss a claim because of the
report’s inadequacy, the trial court must grant the motion “only if it
appears to the court, after a hearing, that the report does not represent a good
faith effort to comply with the definition of an expert report in subsection
(r)(6) of this section.”10
In
her first point, Appellant contends that Dr. Marable’s report complies with
the statutory requirements and represents a good faith effort to comply with the
statutory definition of an expert report as required by sections 13.01(l)
and 13.01(r)(6). We disagree.
Qualified
Expert
One
basis upon which Appellee attacked the report was that it failed to show that
Dr. Marable was qualified to be an expert witness in this case.
Section
13.01(r)(5) states that an “expert” means “with respect to a person giving
opinion testimony regarding whether a physician departed from accepted standards
of medical care, an expert qualified to testify under the requirements of
Section 14.01(a) of this Act.”11 Section
14.01 of the Act sets out the following requirements for an expert witness:
[A]
person may qualify as an expert witness on the issue of whether the physician
departed from accepted standards of medical care only if the person is a
physician who:
(1)
is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose;
(2)
has knowledge of accepted standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim; and
(3)
is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of medical care.12
In
determining whether the expert is qualified on the basis of training and
experience, the court is to consider whether, at the time the claim arose or the
testimony is given, the witness is board certified or has other substantial
training or experience in an area of practice relevant to the claim and is
actively practicing medicine in rendering medical care services relevant to the
claim.13 Because of the increasing
specialization of medicine,
there
is no validity, if there ever was, to the notion that every licensed medical
doctor should be automatically qualified to testify as an expert on every
medical question. . . . [T]he proponent of the testimony has the burden to show
that the expert ‘possesses special knowledge as to the very matter on which he
proposes to give an opinion.’14
Thus,
the test is whether “the offering party [has] establish[ed] that the expert
has ‘knowledge, skill, experience, training, or education’ regarding the
specific issue before the court which would qualify the expert to give an
opinion on that particular subject.”15 A
medical expert who is not of the same school of medicine, however, is competent
to testify if he has practical knowledge of what is usually and customarily done
by a practitioner under circumstances similar to those confronting the
defendant.16
Appellant
underwent surgical procedures involving a face lift and cheek implants performed
by Appellee, a plastic surgeon. According to Dr. Marable’s curriculum vitae,
he is board certified in neurology and forensic medicine, not in plastic surgery
or in surgery of any kind. Neurology is the scientific study of the nervous
system, especially in respect to its structure, functions, and abnormalities.17 A neurologist is a physician skilled in the
diagnosis and treatment of disease of the nervous system.18
Because numbness and pain are nervous system reactions, one who specializes in
neurology should be familiar with procedures, symptoms, and infections that
affect the nerves. Thus, Dr. Marable’s specialization might be relevant
to Appellant’s claim. He is qualified to testify regarding any treatment
of the nerve-damaging infection, as well as the consultation with a patient
regarding the benefits and risks of surgery.19
Nothing
in the expert report or Dr. Marable’s curriculum vitae indicates that he is
familiar with either the surgical procedures used by Appellee for the face lift
and implants or with the preoperative procedures used by Appellee to prepare
Appellant’s face for the face lift and implants. Dr. Marable does not state
that he has knowledge of the accepted standards of medical care for the
diagnosis, care, and treatment regarding plastic surgery. Further, Dr. Marable
does not show that he is qualified on the basis of his training or experience to
offer an expert opinion regarding those accepted standards of medical care. In
short, Appellant did not establish that Dr. Marable was qualified to give an
expert opinion regarding the surgical procedures performed on Appellant.20
Good Faith
Effort To Comply
Because
we hold that Dr. Marable was not qualified to opine regarding Appellee’s
alleged negligence in the surgical procedures, we must determine if, after
removing the improper statements, the remainder of the report represents a good
faith effort to comply with the requirements of the Act. Pursuant to sections
13.01(l) and 13.01(r)(6), an expert report must represent a good faith
effort to provide a fair summary of the expert’s opinions.21
The expert report does not need to marshal all of the plaintiff’s proof, but
it must include the expert’s opinion on each of the elements identified in the
statute.22 The report cannot merely state the
expert’s conclusions about these elements.23
“[R]ather, the expert must explain the basis of his statements to link his
conclusions to the facts.”24
In
Palacios, the Texas Supreme Court found that an expert report must
accomplish two specific goals to meet section 13.01’s requirements.25 First, the report must inform the defendant of the
specific conduct the plaintiff has called into question.26
Second, the report must provide a basis for the trial court to conclude the
claims in question have merit.27 A report
that fails to lay out the required elements, simply stating the expert’s
conclusions as to the standard of care, breach, and causation, does not meet
these purposes or constitute a good faith effort.28
In deciding whether the statutory standard is met, a trial court should stay
within the four corners of the expert report itself, without considering
referenced medical records or affidavits.29
To
comply with the expert report requirement, a plaintiff must only make a good
faith attempt to provide a fair summary of the expert’s opinions.30 It is the substance of the opinions, not the
technical words used, that constitutes compliance with the statute.31 The expert report may be informal, and the
information presented need not meet the same requirements as evidence offered in
a summary judgment proceeding or in a trial.32
Under
the recommendations/discussion section of Dr. Marable’s report he states:
In
a malpractice suit there are four elements that need to be evaluated, duty,
breach of duty, causation and damages. In this case, we feel the failures of Dr.
Bill Miles are the following: Failure to warn patient of the risks and dangers
of having the surgery, failure to realize the infection could not be treated by
antibiotics, and failure to remove the implants when they became infected,
failure to properly repair [sic] her face for laser treatment, failure to
realize the implants had fallen.
What
are the standards of care. The standard of care would have been the following:
Not to do bilateral facial implants, but to give a small facial implant on the
right-hand side. The second standard of care was once the patient had infection,
to tell the patient this needed to be taken out, and not to suggest antibiotics
since antibiotics are known to not be effective in implant cases, and the only
way to get rid of the infection is to discontinue or take out the implants.
Another standard of care would have been to properly prepare the face with [sic]
laser surgery with proper creams prior to surgery. Finally, the primary standard
of care of course, is whenever a surgical procedure is contemplated, the surgeon
should discuss all the risks and benefits of the surgery and let the patient
decide if the risks of surgery and possibility of complications outweigh the
benefits that could . . . be gained from surgery, and this was not done in this
patient.
Therefore,
I feel this case has merit because basically the doctor failed to warn her of
all the risks and complications that could result from this. He failed to warn
her about the possibility of infection, and failed to warn her that once the
implants [became infected] they needed to be removed instead of just treated
with antibiotics.
Therefore,
I feel his negligent activity that I listed above, is the proximate cause of
this patient’s pain and suffering that she has undergone, as well as
explantation of the implants and the current pain she is undergoing and will
most likely have the rest of her life.
Reviewing
only the statements this expert is qualified to make in this case, Dr.
Marable’s report states his opinions concerning the standard of care, the
breach, and causation in these particulars:
Standard
of Care:
Once
the patient had an infection, tell the patient that the only way to get rid of
the infection is to remove the implant. Whenever a surgical procedure is
contemplated, the surgeon should discuss all the risks and possibility of
complications of surgery and let the patient decide whether the benefits
outweigh the risks.
Breach:
Treating
the patient with antibiotics for the infection rather than removing the
implants. Failing to consult the patient regarding the risks and benefits prior
to surgery.
Causation:
His
negligent activity that I listed above is the proximate cause of this
patient’s pain and suffering.
We
hold that the report does not meet the causation requirement of the Act.33 Although the report provides direct statements of
the standards of care required, Appellee’s breaches of that standard of care,
and the procedure that should have been followed, after removing the statements
in the report that Dr. Marable is not qualified to make in this case, the report
does not clearly address the element of causation. The report simply
states the “negligent activity that I listed above is the proximate cause of
this patient’s pain and suffering.” The report fails to state whether
each negligent activity listed above independently caused Appellant’s pain and
suffering or if each negligent activity combined to cause her pain and
suffering.34 Because we hold that Dr. Marable
is not qualified to testify to some of the negligent activity alleged in the
report, the phrase “negligent activity that I listed above,” without a
specific indication that each alleged negligent activity was an independent
cause, fails to link Dr. Marable’s qualified statements of alleged negligent
activities to the specific injuries in this case.35
Without
a positive link between at least one of the independent qualified statements of
alleged negligence and the injuries, Dr. Marable’s causation statement is
merely conclusory and we are constrained to hold that it is not a good faith
effort to comply with the Act.36
Consequently, because the Appellant’s expert report does not meet the
requirements of § 13.01(r)(6), the trial court did not abuse its discretion by
dismissing the case as provided in the Act. We overrule Appellant’s first
point.
Extension of
Time to File Expert Report
Appellant
also argues that the trial court abused its discretion by denying her motion for
an extension of time to file her expert report under section 13.01(g) of the
Act. We disagree.
Section
13.01(g) states:
Notwithstanding
any other provision of this section, if a claimant has failed to comply with a
deadline established by Subsection (d) of this section and after hearing the
court finds that the failure of the claimant or the claimant’s attorney was
not intentional or the result of conscious indifference but was the result of an
accident or mistake, the court shall grant a grace period of 30 days to permit
the claimant to comply with that subsection. A motion by a claimant for relief
under this subsection shall be considered timely if it is filed before any
hearing on a motion by a defendant under Subsection (e) of this section.37
The
Texas Supreme Court has held that because a party who files suit on claims
subject to the Act is charged with knowledge of the Act’s requirements, when a
party files a report that omits one or more elements of section 13.01(r)(6), a
purportedly mistaken belief that the report complied with the Act does not
negate a finding of “intentional or conscious indifference” barring the
party from a section 13.01(g) grace period.38 That
is, the Texas Supreme Court has held that while some mistakes of law—of which
it provides no examples— can negate a finding of intentional or conscious
indifference and thus entitle the claimant to the grace period, a mistake of relevant
law—such as the mistaken belief that an expert report meets the requirements
of the Act—cannot.39 Unfortunately, the
Texas Supreme Court has not provided us with an example of what this mistake of
law might be, and, given the case law on the issue, we cannot fathom an example
on our own. Because we were forced to hold above that Appellant’s expert
report omitted the causation requirement of the Act, and because the Texas
Supreme Court has held that mistakes of law concerning the Act do not negate a
finding of intentional or conscious indifference, we are constrained to hold
that Appellant’s mistaken belief that the report complied with the Act does
not negate a finding of “intentional or conscious indifference.”
Therefore, the trial court did not abuse its discretion by denying Appellant’s
motion for a section 13.01(g) extension of time to file an expert report.
We overrule Appellant’s second point.
Conclusion
Having
overruled Appellant’s two points, we affirm the trial court’s judgment.
LEE
ANN DAUPHINOT
JUSTICE
PANEL B: DAUPHINOT,
HOLMAN, and GARDNER, JJ.
DELIVERED:
August 12, 2004
NOTES
1.
See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen.
Laws 985, 989 (former Tex. Rev. Civ.
Stat. art. 4590i, § 10.01 (Vernon 2002), repealed by Act of June
2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884
(current version at Tex. Civ. Prac. &
Rem. Code Ann. § 74 (Vernon 2004)). This action was filed January
15, 2003, before the new Act’s September 1, 2003 effective date. This
opinion will refer to the former statute as article 4590i.
2.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985,
989 (former Tex. Rev. Civ. Stat.
art. 4590i, § 13.01(g) (Vernon 2002), repealed by Act of June 2, 2003,
78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current
version at Tex. Civ. Prac. & Rem.
Code Ann. § 74.351 (Vernon 2004)).
3.
Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Estate
of Birdwell v. Texarkana Mem’l Hosp., Inc., 122 S.W.3d 473, 477 (Tex.
App.—Texarkana 2003, pet. denied).
4.
See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).
5.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Birdwell,
122 S.W.3d at 477.
6.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
7.
Id.
8.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, 1995 Tex. Gen.
Laws 985 (repealed 2003).
9.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex.
Gen. Laws 985 (repealed 2003).
10.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995
Tex. Gen. Laws 985 (repealed 2003).
11.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01 (r)(5), 1995
Tex. Gen. Laws 985 (repealed 2003).
12.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 985,
988 (former Tex. Rev. Civ. Stat.
art. 4590i, § 14.01(a) (Vernon 2002), repealed by Act of June 2, 2003,
78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current
version at Tex. Civ. Prac. & Rem.
Code Ann. § 74.401 (Vernon 2004)).
13.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 2, sec. 14.01(c) 1995 Tex.
Gen. Laws 985, 988 (repealed 2003).
14.
Broders v. Heise, 924 S.W.2d 148, 152–53 (Tex. 1996) (quoting 2 Ray, Texas Practice: Texas Law of Evidence:
Civil and Criminal § 1401, at 32 (3d ed. 1980)).
15.
Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003) (quoting Broders,
924 S.W.2d at 153).
16.
Marling v. Maillard, 826 S.W.2d 735, 740 (Tex. App.—Houston [14th
Dist.] 1992, no writ).
17.
Webster’s Third New International
Dictionary 1521 (1981).
18.
Id.
19.
See Marling, 826 S.W.2d at 740.
20.
See Broders, 924 S.W.2d at 153.
21.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985
(repealed 2003); De Leon v. Vela, 70 S.W.3d 194, 198 (Tex. App.—San
Antonio 2001, pet. denied).
22.
Palacios, 46 S.W.3d at 878; Doades v. Syed, 94 S.W.3d 664, 671
(Tex. App.—San Antonio 2002, no pet.).
23.
Palacios, 46 S.W.3d at 878.
24.
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999); see Windsor v.
Maxwell, 121 S.W.3d 42, 47 (Tex. App.—Fort Worth 2003, pet. denied).
25.
Palacios, 46 S.W.3d at 879.
26.
Id.; Windsor, 121 S.W.3d at 47.
27.
Palacios, 46 S.W.3d at 879; Windsor, 121 S.W.3d at 47.
28.
Palacios, 46 S.W.3d at 879; Windsor, 121 S.W.3d at 47; Doades,
94 S.W.3d at 671.
29.
Palacios, 46 S.W.3d at 878; Windsor, 121 S.W.3d at 47; De Leon,
70 S.W.3d at 198.
30.
Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995
Tex. Gen. Laws 985 (repealed 2003); Palacios, 46 S.W.3d at 875; Birdwell,
122 S.W.3d at 479.
31.
Moore v. Sutherland, 107 S.W.3d 786, 790 (Tex. App.—Texarkana 2003,
pet. denied); Birdwell, 122 S.W.3d at 480.
32.
Palacios, 46 S.W.3d at 879; Birdwell, 122 S.W.3d at 480.
33.
See Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen.
Laws 985 (repealed 2003).
34.
See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52–53 (Tex. 2002).
35.
See id.
36.
See id. at 53.
37.
See Act of May 18, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(g),
1995 Tex. Gen. Laws 985 (repealed 2003).
38.
Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003).
39.
Id.; but see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(holding cost bond filed too late under former appellate rules, the relevant
rules for timing of civil appellate filings and therefore the rules the
appellant was charged with knowledge of, was filed in good faith and should
necessarily be treated as a timely motion for extension of time, reversing the
court of appeals’s dismissal of the case); Bank One, Texas, N.A. v. Moody,
830 S.W.2d 81, 85 (Tex. 1992) (holding that failure to file answer as required
by the Texas Rules of Civil Procedure, the relevant rules of procedure in civil
cases and therefore the rules the appellant was charged with knowledge of, was a
mistake of law that negated a finding of intentional or conscious indifference,
reversing default judgment); Angelo v. Champion Rest. Equip. Co., 713
S.W.2d 96, 97 (Tex. 1986) (same).