Jennifer J. Garza, M.D. and Jennifer Garza, M.D., P.A. v. Rafael Deleon and Vanessa Deleon as Parents and Next of Friend of E.D., a Minor Child

• Court: Court of Appeals of Texas
• Decided: December 19, 2013
• Docket: 13-13-00342-CV
• Status: Published

Opinion

NUMBER 13-13-00342-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JENNIFER J. GARZA, M.D. AND JENNIFER GARZA, M.D., P.A., Appellants,

v.

RAFAEL DELEON AND VANESSA DELEON AS PARENTS AND NEXT OF FRIEND OF E.D., A MINOR CHILD, Appellees.

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Longoria

This is an interlocutory appeal from an order denying appellant Jennifer Garza,

M.D.’s motion to dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West 2011);

§ 51.014(a)(9) (West 2008). We affirm.

I. BACKGROUND

Appellees 1 brought a healthcare liability claim against Dr. Garza in connection

with an elective circumcision that she performed on their four-year-old minor son, E.D.

E.D.’s pediatrician recommended that E.D. be circumcised because of the conditions of

phimosis (tight foreskin) and redundant foreskin. Appellees alleged that Dr. Garza

overused an electrocautery device during the circumcision and caused E.D. to develop

two holes (fistulas) on his penis that required reconstructive surgery.

Specifically, appellees alleged that Dr. Garza first told them that the circumcision

had been successful but that there had been a small amount of bleeding that she had

been able to stop. A nurse who came to change E.D.’s bandages in the recovery room

noticed that E.D. “still had a lot of bleeding” that did not appear to be stopping. Dr.

Garza returned E.D. to the operating room under anesthesia and found that there was

“general ooze” of blood from under the head of the penis but without a specific source.

Dr. Garza stated that she “gently used” an electrocautery device along with hemostatic

agents on the head of the penis to stop the bleeding. Appellees alleged that within two

to three days of being released from the hospital, E.D. was voiding urine through two

holes in his penis and that the “oozing bleeding” continued. Appellees took E.D. to the

emergency room for blood in his urine and for pain that they allege was so severe that

he was unable to sleep. Appellees were eventually referred to a pediatric urologist who

diagnosed the holes as “urethrocutaneous fistulas,” holes between the urethra and the

1 Appellees are Rafael and Vanessa DeLeon, acting as the parents and next friends of E.D., their minor son. Both parties refer to E.D. by his initials, and we will do the same.

2 skin of the penis. After waiting approximately six months for healing and to permit the

scar tissue to soften, E.D. underwent reconstructive surgery that closed the holes

without any bleeding issues 2, but the surgeon also noted that E.D. might require further

surgeries if complications arose.

Appellees brought suit on behalf of E.D., alleging that Dr. Garza was negligent

for: (1) “failing to properly perform the circumcision”; (2) “causing excessive bleeding

during the circumcision procedure”; (3) “removing excessive tissue during the

circumcision procedure”; (4) “using excessive electrocautery during the second

procedure”; (5) “injuring E.D.’s glans, urethra and skin of his penis”; and (5) generally

“failing to provide proper care and treatment” to E.D. Appellees filed three separate

expert reports from Dr. James E. Moulsdale, M.D., a pediatric urologist from Maryland.

The trial court overruled Dr. Garza’s objections to the third expert report, and it issued

an order denying Dr. Garza’s motion to dismiss. This appeal followed. See id.

§ 51.014(a)(9) (allowing for an interlocutory appeal of the denial of a motion to dismiss

brought under section 74.351(b)).

II. DISCUSSION

By two issues, Dr. Garza argues that the trial court abused its discretion in

denying her motion to dismiss because the third expert report is not an objective good

faith effort to comply with the definition of an expert report in section 74.351(r)(6) of the

Texas Civil Practice and Remedies Code. See id. § 74.351(r)(6), (l).

2 Blood tests ruled out the possibility that E.D. had a blood disorder that would have prevented his blood from clotting.

3 A. Standard of Review and Applicable Law

The Texas Medical Liability Act requires that a plaintiff in a suit against a

physician or health care provider must serve an expert report on the defendant or the

defendant’s attorneys within 120 days after the filing of the first petition. TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(a). If the defendant objects to the adequacy of the report

and files a motion to dismiss, the trial court should grant the motion “only if it appears to

the court, after hearing, that the report does not represent an objective good faith effort

to comply with the definition of an expert report in Subsection (r)(6).” Id. § 74.351(l),

(r)(6). We review a trial court’s decision on a motion to dismiss under section 74.351(b)

for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).

In the context of a motion to dismiss under section 74.351(b), “[a] good faith

effort . . . simply means a report that does not contain a material deficiency.” Samlowski

v. Wooten, 332 S.W.3d 404, 409–10 (Tex. 2011). “A valid expert report . . . must

provide (1) a fair summary of the applicable standards of care; (2) the manner in which

the physician or health care provider failed to meet those standards; and (3) the causal

relationship between that failure and the harm alleged.” TTHR Ltd. P’ship v. Moreno,

401 S.W.3d 41, 44 (Tex. 2013) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)).

A plaintiff is not required to present evidence in the report as if he was arguing the

merits, but it is not enough that the report merely state the expert’s conclusions about

the three elements. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 878–79 (Tex. 2001). “Rather, the expert must explain the basis of his

statement to link his conclusions to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d

48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). The report

4 must contain information that is sufficient to fulfill two purposes: “[f]irst, the effort must

inform the defendant of the specific conduct the plaintiff has called into question.

Second, . . . the report must provide a basis for the trial court to conclude that the claims

have merit.” Palacios, 46 S.W.3d at 879. “Therefore, an expert report that includes all

the required elements, and that explains their connection to the defendant’s conduct in

a non-conclusory fashion, is a good faith effort.” Samlowski, 332 S.W.3d at 410

(citations omitted); see Otero v. Leon, 319 S.W.3d 195, 199 (Tex. App.—Corpus Christi

2010, pet. denied).

B. Standard of Care, and Departure Therefrom

By her first issue, Dr. Garza argues that all three reports are inadequate because

they do not include an adequate statement of the applicable standard of care and the

alleged departure from the standard of care. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(r)(6). We will primarily refer to the third report because it includes everything

in the first two reports and also provides a more thorough discussion of Dr. Moulsdale’s

opinions and the basis for them.

In his report, Dr. Moulsdale opined that “[t]he standard of care applicable to all

circumcisions is to perform the circumcision by removing an appropriate amount of

foreskin without excessive bleeding and without injury to the urethra or glans penis.”

Specifically,

the physician must avoid incising the urethra with a cutting agent, or with a suture placed for hemostasis. In other words, fistulas may result from . . . either accidental crushing of the urethra by the circumcision clamp, or from a stitch placed in the underside of the penis to control excessive bleeding at the site of the frenulum. Additionally, a fistula can be caused by incising the urethra with the scalpel or electrocautery device.

5 Dr. Garza argues that the report is deficient because it does not explain “what

[she] was specifically required to do to avoid injury while removing foreskin,” does not

quantify “how much foreskin was appropriate to remove and how much was too much”

and does not discuss “what specifically [she] was required to do in exercising ‘great

care’ while using electrocautery so as not to damage the urethra or the glans.” Dr.

Garza argues that “[w]ithout this information, [she] is left to guess what specific action

she was required to take.”

Dr. Garza also argues that Dr. Moulsdale’s statement of the departure from the

standard of care is insufficient because it is conclusory. Dr. Moulsdale states in the

report that in his opinion:

Dr. Garza breached the standard of care here by using the electrocautery device improperly and too aggressively. She removed too much skin, burned [E.D.’s] penis by overcauterizing it, and she also created two fistulas in his urethra. This in turn caused substantial bleeding and the later complications that [E.D.] experienced and continues to experience . . . . Urethral fistulas are not a normal or non-negligent result of circumcision. Rather, in my experience and opinion, it is a breach of the applicable standards of care to conduct the circumcision in such a way that results in fistulas. It indicates that the physician failed to carefully conduct the surgery, removing too much skin, cutting into the urethra or crushing the urethra—or all three.

Dr. Garza argues that this statement is conclusory because it does not give her

notice of the claims against her by explaining how much skin should have been

removed and how much use of electrocautery is reasonable and how much is

excessive. Dr. Garza asserts that the report therefore is nothing but an extended

conclusory statement which “impermissibly concludes that a bad result equates to

negligence.” 3

3 Dr. Garza cites to section 74.303(e)(2) of the Texas Civil Practice and Remedies Code for the proposition that “[a] finding of negligence may not be based solely on the evidence of a bad result to the

6 However, appellees do not need to present evidence in their expert report as if

they were fully litigating the merits. See Certified E.M.S., Inc. v. Potts, 392 S.W.3d 625,

631 (Tex. 2013) (observing that “the purpose of evaluating expert reports is to deter

frivolous claims, not to dispose of claims regardless of their merits”) (quotation marks

omitted); Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011); Palacios, 46 S.W.3d

at 878 (rejecting a summary judgment standard of review for reviewing motions to

dismiss under Chapter 74). The report must only contain a “fair summary” of the

standard of care and the alleged departure from it that is sufficient to inform Dr. Garza

of the conduct that appellees are calling into question and to provide a basis for the trial

court to conclude that the claims against Dr. Garza are meritorious. See Potts, 392

S.W.3d at 630; Palacios, 46 S.W.3d at 878. Having reviewed Dr. Moulsdale’s report in

its entirety, we conclude that the trial court was justified in finding that it discusses the

two elements of the standard of care and breach with sufficient specificity to fulfill the

dual purposes of the expert report requirement. The report states the actions Dr. Garza

was supposed to avoid doing when conducting the surgery: cutting into the urethra with

either a scalpel or an electrocautery tool, crushing the urethra with the circumcision

clamp, or puncturing the urethra with a suture, and that the injuries E.D. suffered were

the proximate result of Dr. Garza departing from the applicable standard of care by

doing at least one of those things. Dr. Moulsdale’s report therefore apprises Dr. Garza

of the conduct that is being called into question and provides enough information to

claimant.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.303(e)(2) (West 2011). However, section 74.303(e)(2) does not address expert reports; rather, it addresses the proper instructions that must be given to juries trying the merits of a health care liability claim. See id. § 74.303(e) (“In any action on a health care liability claim that is tried by a jury in any court in this State, the following shall be included in the court’s written instructions to the jurors.”) (emphasis added).

7 provide a basis for the trial court to conclude that the claims are meritorious. See Potts,

392 S.W.3d at 630; Palacios, 46 S.W.3d at 879; see also Benson v. Vernon, 303

S.W.3d 755, 758, 760 (Tex. App.—Waco 2009, no pet.) (rejecting a similar attack on an

expert report in a case where the plaintiff suffered complications during a breast

augmentation procedure and where the expert report opined that the standard of care

required the surgeon to, among other things, cut only in the “normal dissection plane”

without “entering” a specific cavity in the breast, but without specifying in the report “how

the appropriate depth and dissection plane are determined”).

We overrule Dr. Garza’s first issue.

C. Causation

By her second issue, Dr. Garza argues that the report was insufficient because it

did not include any opinion on whether E.D.’s injuries were foreseeable. Dr. Garza

asserts that foreseeability is an element of the causation analysis that is required by

section 74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In the past, this

Court has agreed with the Dallas Court of Appeals in concluding that there is no

authority that “an expert report must opine on whether the specific injuries sustained by

the claimant could have been foreseen by the healthcare defendants.” Rio Grande

Reg. Hosp. v. Ayala, No. 13-11-00686-CV, 2012 WL 3637368, at *15 (Tex. App.—

Corpus Christi Aug. 24, 2012, pet. denied) (mem. op.) (citing Adeyemi v. Guerrero, 329

S.W.3d 241, 246 (Tex. App.—Dallas 2010, no pet.)); see Valley Reg’l. Med. Ctr. v.

Gonzalez, No. 13-12-00572-CV, 2013 WL 2298470, at *3 (Tex. App.—Corpus Christi

May 23, 2013, no pet.) (mem. op.) (declining to revisit our holding in Ayala). Dr. Garza

requests overruling these precedents because “the causal relationship in a health care

8 liability claim consists of both cause-in-fact and foreseeability.” All of the cases cited by

Dr. Garza do not discuss the expert report requirement, but refer to elements that must

be found by the factfinder to support a verdict in a healthcare liability claim. 4 Dr. Garza

makes essentially the same argument that we rejected recently in Gonzalez but gives

this Court no reason to revisit our holding in that case. See Gonzalez, 2013 WL

2298470, at *3 (declining to revisit our holding in Ayala). Accordingly, we overrule Dr.

Garza’s second issue. See Adeymei, 329 S.W.3d at 246; Gonzalez, 2013 WL 2298470,

at *3; Ayala, 2012 WL 3637368, at *15.

We overrule Dr. Garza’s second issue.

III. MOTION FOR SANCTIONS

Appellees filed a separate motion in which they request that this Court sanction

Dr. Garza under Rule 45 for bringing a frivolous appeal. See TEX. R. APP. P. 45.

A. Applicable Law

“Under Rule 45, we may award a prevailing party just damages if we objectively

determine that an appeal is frivolous after considering the record, briefs or other papers

filed in this Court.” Lookshin v. Feldman, 127 S.W.3d 100, 106 (Tex. App.—Houston

[1st Dist.] 2003, pet. denied) (citing TEX. R. APP. P. 45). “To determine if an appeal is

frivolous, we review the record from the viewpoint of the advocate and decide whether

there were reasonable grounds to believe the case could be reversed.” London v.

London, 349 S.W.3d 672, 676 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The

decision whether to grant sanctions is committed to this Court’s discretion, a power that

4 Both cases cited by Dr. Garza were decided in the context of a challenge to a jury verdict in a health care liability case. See Columbia Rio Grande Healthcare, L.P., v. Hawley, 284 S.W.3d 851, 860 (Tex. 2009); Grider v. Mike O’Brien, P.C., 260 S.W.3d 49, 57 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

9 we exercise “with prudence and caution and only after careful deliberation in truly

egregious circumstances.” Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193,

200 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “If an appellant’s argument on

appeal fails to convince us but has a reasonable basis in law and constitutes an

informed . . . challenge to the trial court’s judgment, sanctions are not appropriate.” Id.

B. Analysis

Appellees argue that this appeal is frivolous because: (1) the report plainly

contains an adequate statement of the three statutory elements, and there is even a

case, Baylor College of Medicine v. Pokluda, 283 S.W.3d 110 (Tex. App.—Houston

[14th Dist.] 2009, no pet.), upholding the sufficiency of an expert report against similar

attacks; and (2) Dr. Garza argued to this Court about whether appellees’ expert was

required to address whether E.D.’s injuries were foreseeable, even though this Court

has already twice rejected a similar argument.

While we were not persuaded by Dr. Garza’s arguments regarding the adequacy

of the expert report in this case, after a thorough review of the record we conclude that

Dr. Garza had a reasonable basis in law to challenge the trial court’s ruling. Even if

Pokluda was directly on point, as a decision of one of our sister courts it is not binding

authority that appellant could reasonably try to persuade us that we should not follow.

See Thomas v. Cook, 350 S.W.3d 382, 395 n.2 (Tex. App.—Houston [14th Dist.] 2011,

pet. denied) (observing that cases from other appellate courts “are persuasive but not

binding on other intermediate appellate courts of this state”). Regarding Dr. Garza’s

request that we overrule our precedent in Ayala and Gonzalez, although we reject the

request, we note that it is not necessarily frivolous for an appellant to ask this Court to

10 revisit our past precedent. See Kingston v. Helm, 82 S.W.3d 755, 760 (Tex. App.—

Corpus Christi 2002, pet. denied) (reasoning that “although consideration of stare

decisis normally counsel against overruling an opinion of this court after such a short

time, a clearly erroneous decision should be corrected”) (internal citations omitted). We

will impose sanctions in only the most egregious cases, Methodist Hosp., 296 S.W.3d at

200, and we conclude that these are not such circumstances. We deny appellees’

motion for sanctions under Rule 45.

IV. CONCLUSION

We affirm the order of the trial court.

___________________ NORA L. LONGORIA Justice

Delivered and filed the 19th day of December, 2013.