In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00462-CV ____________________
KHALID KAYANI, Appellant
V.
TARYN STEVENS, Appellee ____________________________________________________________________ _
On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-192,264 ____________________________________________________________________ _
MEMORANDUM OPINION
Taryn Stevens sued Khalid Kayani, M.D. for alleged medical malpractice. Kayani
objected to Stevens’s expert report and moved to dismiss the lawsuit pursuant to section
74.351 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b) (West 2011). The trial court overruled Kayani’s objections and denied his
motion to dismiss. In his sole appellate issue in this interlocutory appeal, Kayani
challenges the trial court’s denial of his motion to dismiss. See id. § 51.014(a)(9) (West
Supp. 2012). We affirm the trial court’s order denying Kayani’s motion to dismiss.
1 Standard of Review and Applicable Law
Section 74.351 requires a health care liability claimant to timely file sufficient
expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l) (West 2011).
When considering a motion to dismiss for failure to comply with section 74.351, the trial
court must determine “whether ‘the report’ represents a good-faith effort to comply with
the statutory definition of an expert report.” Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). Section
74.351 defines an “expert report” as follows:
[A] written report by an expert that provides 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.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West 2011). “Because the statute
focuses on what the report discusses, the only information relevant to the inquiry is
within the four corners of the document.” Palacios, 46 S.W.3d at 878; see also Wright,
79 S.W.3d at 52.
“A report need not marshal all the plaintiff’s proof, but it must include the expert’s
opinion on each of the elements identified in the statute.” Palacios, 46 S.W.3d at 878;
see also Wright, 79 S.W.3d at 52. An expert report constitutes a “good-faith effort” when
the expert sets out his opinions on the standard of care, breach, and causation with
2 enough specificity to: (1) “inform the defendant of the specific conduct the plaintiff has
called into question,” and (2) “provide a basis for the trial court to conclude that the
claims have merit.” Palacios, 46 S.W.3d at 879; see also Wright, 79 S.W.3d at 52.
“‘[T]he expert must explain the basis of his statements to link his conclusions to the
facts.’” Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.
1999)). “A report that merely states the expert’s conclusions about the standard of care,
breach, and causation does not fulfill these two purposes.” Palacios, 46 S.W.3d at 879.
“Nor can a report meet these purposes and thus constitute a good-faith effort if it omits
any of the statutory requirements.” Id. “The report can be informal in that the
information in the report does not have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Id.
We review a trial court’s ruling on a motion to dismiss pursuant to section 74.351
under an abuse-of-discretion standard. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at
878. “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.” Wright, 79 S.W.3d at 52. In
matters committed to and within the trial court’s discretion, we may not substitute our
own judgment for the trial court’s judgment. Id.
The Expert Report of Dr. Orlando Suris
According to Dr. Suris’s report, in 2010, Stevens underwent an abdominal
myomectomy performed by Kayani, without apparent complications. Mild pelvic
3 adhesions were encountered and estimated blood loss totaled 1800 cc and required three
units of blood to be transfused. Kayani’s operative report failed to mention the removal
of Stevens’s left ovary, but the anatomic pathology report showed that the ovary was
removed. According to a 2009 pelvic ultrasound, Stevens’s left ovary was intact at that
time. In 2011, Stevens underwent another surgery, which made clear the absence of the
ovary and its previous removal. The blood supply to the ovary was intact. No ovary was
removed within the myoma specimen.
Suris described the standard of care as follows:
[T]he level at which an ordinary, prudent professional having the same training and experience in good standing in a similar community would practice under the same circumstances. The surgical standard of care requires that before any surgical procedure is initiated, the anatomy of the patient be evaluated and addressed. In an abdominal myomectomy, it is not unusual for the uterus to be very enlarged and distorted, displacing adjacent organs and tissues. It is imperative for any surgeon to ascertain such anatomical changes before starting the surgical procedure.
Suris opined that Kayani encountered an inordinate amount of blood loss when removing
the fibroids and inadvertently removed Stevens’ left ovary. Suris explained that when
this type of blood loss is encountered, a prudent physician should achieve hemostasis
before continuing the surgery instead of operating blindly.
Suris stated that Stevens’s medical records revealed that hemostasis was not
achieved at the time of her blood loss. Suris believed that Kayani’s deviation from the
standard of care resulted in removal of a normal ovary, which leaves Stevens with only
one functioning ovary and decreases her fertility potential. Suris concluded that Kayani
4 acted below the standard of care by removing an ovary during an abdominal
myomectomy when there appeared to be no medical or surgical reason for its removal.
Suris further explained that a physician has a duty to inform the patient if an ovary is
removed, but that Stevens did not discover the missing ovary until a subsequent surgery.
The Standard of Care, Breach, and Causation
In his sole appellate issue, Kayani contends that the trial court should have granted
his motion to dismiss on grounds that Suris’s report is insufficient and conclusory as to
the standard of care, breach, and causation. Kayani complains that Suris (1) failed to
address Stevens’s allegation that her ovary was removed without her consent, (2) failed to
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00462-CV ____________________
KHALID KAYANI, Appellant
V.
TARYN STEVENS, Appellee ____________________________________________________________________ _
On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-192,264 ____________________________________________________________________ _
MEMORANDUM OPINION
Taryn Stevens sued Khalid Kayani, M.D. for alleged medical malpractice. Kayani
objected to Stevens’s expert report and moved to dismiss the lawsuit pursuant to section
74.351 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b) (West 2011). The trial court overruled Kayani’s objections and denied his
motion to dismiss. In his sole appellate issue in this interlocutory appeal, Kayani
challenges the trial court’s denial of his motion to dismiss. See id. § 51.014(a)(9) (West
Supp. 2012). We affirm the trial court’s order denying Kayani’s motion to dismiss.
1 Standard of Review and Applicable Law
Section 74.351 requires a health care liability claimant to timely file sufficient
expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l) (West 2011).
When considering a motion to dismiss for failure to comply with section 74.351, the trial
court must determine “whether ‘the report’ represents a good-faith effort to comply with
the statutory definition of an expert report.” Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). Section
74.351 defines an “expert report” as follows:
[A] written report by an expert that provides 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.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West 2011). “Because the statute
focuses on what the report discusses, the only information relevant to the inquiry is
within the four corners of the document.” Palacios, 46 S.W.3d at 878; see also Wright,
79 S.W.3d at 52.
“A report need not marshal all the plaintiff’s proof, but it must include the expert’s
opinion on each of the elements identified in the statute.” Palacios, 46 S.W.3d at 878;
see also Wright, 79 S.W.3d at 52. An expert report constitutes a “good-faith effort” when
the expert sets out his opinions on the standard of care, breach, and causation with
2 enough specificity to: (1) “inform the defendant of the specific conduct the plaintiff has
called into question,” and (2) “provide a basis for the trial court to conclude that the
claims have merit.” Palacios, 46 S.W.3d at 879; see also Wright, 79 S.W.3d at 52.
“‘[T]he expert must explain the basis of his statements to link his conclusions to the
facts.’” Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.
1999)). “A report that merely states the expert’s conclusions about the standard of care,
breach, and causation does not fulfill these two purposes.” Palacios, 46 S.W.3d at 879.
“Nor can a report meet these purposes and thus constitute a good-faith effort if it omits
any of the statutory requirements.” Id. “The report can be informal in that the
information in the report does not have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Id.
We review a trial court’s ruling on a motion to dismiss pursuant to section 74.351
under an abuse-of-discretion standard. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at
878. “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.” Wright, 79 S.W.3d at 52. In
matters committed to and within the trial court’s discretion, we may not substitute our
own judgment for the trial court’s judgment. Id.
The Expert Report of Dr. Orlando Suris
According to Dr. Suris’s report, in 2010, Stevens underwent an abdominal
myomectomy performed by Kayani, without apparent complications. Mild pelvic
3 adhesions were encountered and estimated blood loss totaled 1800 cc and required three
units of blood to be transfused. Kayani’s operative report failed to mention the removal
of Stevens’s left ovary, but the anatomic pathology report showed that the ovary was
removed. According to a 2009 pelvic ultrasound, Stevens’s left ovary was intact at that
time. In 2011, Stevens underwent another surgery, which made clear the absence of the
ovary and its previous removal. The blood supply to the ovary was intact. No ovary was
removed within the myoma specimen.
Suris described the standard of care as follows:
[T]he level at which an ordinary, prudent professional having the same training and experience in good standing in a similar community would practice under the same circumstances. The surgical standard of care requires that before any surgical procedure is initiated, the anatomy of the patient be evaluated and addressed. In an abdominal myomectomy, it is not unusual for the uterus to be very enlarged and distorted, displacing adjacent organs and tissues. It is imperative for any surgeon to ascertain such anatomical changes before starting the surgical procedure.
Suris opined that Kayani encountered an inordinate amount of blood loss when removing
the fibroids and inadvertently removed Stevens’ left ovary. Suris explained that when
this type of blood loss is encountered, a prudent physician should achieve hemostasis
before continuing the surgery instead of operating blindly.
Suris stated that Stevens’s medical records revealed that hemostasis was not
achieved at the time of her blood loss. Suris believed that Kayani’s deviation from the
standard of care resulted in removal of a normal ovary, which leaves Stevens with only
one functioning ovary and decreases her fertility potential. Suris concluded that Kayani
4 acted below the standard of care by removing an ovary during an abdominal
myomectomy when there appeared to be no medical or surgical reason for its removal.
Suris further explained that a physician has a duty to inform the patient if an ovary is
removed, but that Stevens did not discover the missing ovary until a subsequent surgery.
The Standard of Care, Breach, and Causation
In his sole appellate issue, Kayani contends that the trial court should have granted
his motion to dismiss on grounds that Suris’s report is insufficient and conclusory as to
the standard of care, breach, and causation. Kayani complains that Suris (1) failed to
address Stevens’s allegation that her ovary was removed without her consent, (2) failed to
explain how Kayani’s acts or omissions caused harm, how Kayani breached the surgical
standard of care for a myomectomy, and what Kayani should have done differently to
achieve hemostasis, (3) made generalized statements regarding the standard of care, (4)
assumed that Kayani breached the standard of care and operated blindly, and (5) linked
possible infertility to an “inadvertently” removed ovary and not to Kayani’s breach of the
standard of care.
Regarding Kayani’s argument that Suris failed to address Stevens’s claim that the
ovary was removed without her consent, the record does not indicate that Kayani
objected to Suris’s report on this basis. Accordingly, this complaint is not preserved for
appellate review. See Tex. R. App. P. 33.1(a); see also Silsbee Oaks Health Care, L.L.P.
5 v. Chumley, No. 09-10-00363-CV, 2010 Tex. App. LEXIS 10337, at *11 (Tex. App.—
Beaumont Dec. 30, 2010, pet. denied) (mem. op.).
As for Kayani’s complaints regarding the sufficiency of Suris’s report, Stevens
was not required to marshal all her proof or present evidence in the report as if actually
litigating the merits. See Palacios, 46 S.W.3d at 878-79. The report need not meet the
same requirements as evidence offered in a summary-judgment proceeding or at trial. Id.
at 879. The report need only (1) inform Kayani of the specific conduct Stevens has
called into question, and (2) provide a basis for the trial court to conclude that Stevens’s
claims have merit. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
Suris explained that, to meet the standard of care, Kayani had a duty to (1)
determine whether Stevens had experienced any anatomical changes, given that in an
abdominal myomectomy the uterus can be so enlarged and distorted as to misplace
adjacent organs and tissues, (2) to stop operating when Stevens began to experience
blood loss, and (3) to achieve hemostasis to stop the blood flow before continuing the
operation. Kayani also bore a duty to inform Stevens that her ovary had been removed.
Suris’s report suggests that, according to the medical records, Kayani breached the
standard of care by (1) operating amidst an inordinate amount of blood loss, instead of
stopping the procedure to achieve hemostatis at the time of the blood loss, which led to
removal of a healthy ovary, and (2) failing to inform Stevens that the ovary had been
removed, even though the pathology report showed that the ovary had been removed. As
6 a result of Kayani’s removal of a healthy ovary, Stevens has only one functioning ovary
and a potential for decreased fertility.
Based on the facts presented, Suris’s report explains, to a reasonable degree, how
and why the alleged breach of the standard of care caused Stevens’s injury. See Jelinek v.
Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). The report need not “rule out every
possible cause of the injury, harm, or damages claimed[]” or “rule out all other possible
scenarios.” Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex.
App.—Dallas 2009, no pet.); VHS San Antonio Partners LLC v. Garcia, No. 04-09-
00297-CV, 2009 Tex. App. LEXIS 7790, at *15 (Tex. App.—San Antonio Oct. 7, 2009,
pet. denied) (mem. op.). The correctness of Suris’s conclusions is an issue for trial or
summary judgment. See Wissa v. Voosen, 243 S.W.3d 165, 169-70 (Tex. App.—San
Antonio 2007, pet. denied). We, therefore, conclude that the trial court was justified in
finding that Suris’s report discusses the standard of care, breach, and causation with
sufficient specificity to inform Kayani of the specific conduct called into question, i.e.,
what should have been done differently and what care was expected, but not received.
See Palacios, 46 S.W.3d at 879-80. The report provides a basis for the trial court to
conclude that Stevens’s claims have merit. See Wright, 79 S.W.3d at 52; Palacios, 46
S.W.3d at 879. Because Stevens’s expert report represents a good-faith effort to comply
with the statutory definition of an “expert report,” we overrule Kayani’s sole issue and
affirm the trial court’s order denying Kayani’s motion to dismiss.
7 AFFIRMED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on December 27, 2012 Opinion Delivered January 17, 2013 Before McKeithen, C.J., Gaultney and Horton, JJ.