Matthew McKerley, D.O. v. Danisha Jackson and Devin Jackson, Individually and as Representatives of the Estate of Merlenia Jackson

• Court: Court of Appeals of Texas
• Decided: February 17, 2022
• Docket: 05-21-00050-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed February 17, 2022

In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00050-CV

MATTHEW MCKERLEY, D.O., Appellant V. DANISHA JACKSON AND DEVIN JACKSON, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF MERLENIA JACKSON, Appellees

On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-10884

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Carlyle Matthew McKerley, D.O., appeals the trial court’s denial of his motion to

dismiss under chapter 74 of the Texas Civil Practice and Remedies Code. We affirm

in this memorandum opinion. See TEX. R. APP. P. 47.4.

On August 1, 2017, Merlenia Jackson presented to the emergency room at

Medical City Dallas with dyspnea, hypertension, and swelling in her legs. Dr.

McKerley, an emergency physician at the hospital, examined Ms. Jackson and

discharged her later that day. She died the following day from a pulmonary

embolism. Merlenia’s children, appellees Danisha Jackson and Devin Jackson, sued the

hospital and Dr. McKerley, alleging they were grossly negligent for failing to

diagnose and treat Merlenia’s pulmonary embolism. As required by Chapter 74 of

the civil practice and remedies code, the Jacksons also served the defendants with

an expert report from Elizabeth Jones, M.D.

Dr. Jones is board certified in both internal and emergency medicine, is an

associate professor of emergency medicine, and has practiced emergency medicine

for more than twenty years. She explained in her report that dyspnea, or shortness of

breath, is a serious symptom that can indicate a variety of life-threatening conditions,

including “heart attack, pulmonary embolism (PE), pulmonary edema, empyema,

pleural effusion, pericardial tamponade, pneumonia, pneumothorax, asthma or

emphysema and acidosis.” According to Dr. Jones, when a patient presents with a

symptom like dyspnea, the standard of care requires that the provider “perform a

complete history and physical, develop a differential diagnosis of the condition,”

“consider all potentially dangerous causes,” and either “establish a diagnosis to a

reasonable degree of medical certainty or admit the patient for further testing.”

Dr. Jones explained that diagnosing a pulmonary embolism can be difficult

“because it is not detected by physical exam or chest x-ray.” Nevertheless,

“[b]ecause an untreated pulmonary embolism has a mortality of up to 30%, the

diagnosis must be considered in all cases of dyspnea,” and “[i]t should especially be

–2– considered when the dyspnea is not explained by another diagnosis.” Thus, “all

patients with unexplained dyspnea must be fully evaluated” for a pulmonary

embolism. Such an “evaluation may include a more complete history, bedside

ultrasound, clinical decision scores such as PERC or Well’s, the D-dimer blood test

and/or CT of the chest.” But according to Dr. Jones, “[n]one of this was done” for

Merlenia.

Dr. Jones stated that Merlenia’s caregivers “did not perform a complete

history and physical, did not establish a complete differential diagnosis, did not fully

evaluate the potentially dangerous causes of the patient’s condition and did not

establish a diagnosis.” And without a diagnosis, “the providers could not predict her

clinical course,” which made her discharge premature. “All of these actions violate

the standard of care.”

Dr. Jones further explained that a chest CT scan is the “gold standard” for

diagnosing a pulmonary embolism, but the procedure is expensive and exposes the

patient to radiation. Thus, a physician should not invariably order a CT scan

whenever a patient presents with dyspnea; rather, the physician must first determine

whether the dyspnea can be explained by other conditions revealed by a physical

examination, x-ray, and lab work. If the dyspnea is otherwise explained, it is much

less likely the patient has a pulmonary embolism. But without an alternative

explanation, the physician must fully evaluate whether the patient has a pulmonary

–3– embolism before discharging her. If the patient has a low probability of pulmonary

embolism, the physician can rule out the condition using clinical decision tools or a

blood test. If there is a high probability, a CT scan is required.

According to Dr. Jones, although Merlenia was at low risk for a pulmonary

embolism, the condition “could not be ruled out using the PERC clinical decision

rule due to her age.” And because no other explanation for the dyspnea was found

after an x-ray, physical exam, and lab work, a pulmonary embolism became more

likely. Thus, her treating physician should have used a “D-dimer” blood test to rule

out the condition and, if the D-dimer came back positive, a CT scan to make a

definitive diagnosis. “By failing to properly evaluate Ms. Jackson using the standard

evaluation tool (the complete history and physical) used by all physiicians [sic] to

assess patinets [sic], the treating physician did not treat the patient with the usual,

prudent care and skill . . . owed to every patient.” Moreover, “[b]y failing to consider

all of the potentially fatal causes of dyspnea, the treating physician did not exercise

reasonable clinical judgment.”

With respect to causation, Dr. Jones explained that an untreated pulmonary

embolism has a mortality rate of thirty percent, while a treated pulmonary

embolism’s mortality rate is between two and ten percent, with “recent studies

finding mortality between 1.8-3.3%.” Dr. Jones thus opined that the treating

physician’s “disregard for the standard evaluation of shortness of breath,” which

–4– resulted in failing to diagnose the pulmonary embolism, “lead [sic] to Ms. Jackson’s

death to a reasonable degree of medical certainty.”

Dr. McKerley and the hospital moved to dismiss the Jacksons’s claims,

arguing that Dr. Jones’s report did not satisfy Chapter 74’s requirements. After a

hearing and additional motion practice, the Jacksons voluntarily dismissed their

claims against the hospital, and the trial court entered an order denying Dr.

McKerley’s motion to dismiss but requiring the Jacksons to amend their expert

report “to include information pertaining to causation of damages, treatment options,

and efficacy of treatments in regards to the deceased Merlinia [sic] Jackson.”

Following that order, the Jacksons filed and served a one-page document titled

“Plaintiff’s Expert Report Addendum.” The addendum provided general information

about the causes of pulmonary embolisms. It also explained—with a quote from

“Uptodate.com”—that, although the prognosis for a patient with a pulmonary

embolism is variable, “in general, if left untreated, PE is associated with an overall

mortality of up to 30 percent compared with 2 to 11 percent in those treated with

anticoagulation.”

With respect to treatment options, the addendum noted that it depends on the

patient’s stability. Unstable patients either receive a drug that dissolves the clot or

undergo a procedure to remove it. Stable patients, in contrast, receive “systemic anti-

coagulation,” which does not remove the clot but prevents it from growing while the

–5– body eventually absorbs it. This treatment involves either “intravenous or

subcutaneous heparin, subcutaneous low-molecular weight heparin, oral warfarin or

oral novel anti-coagulants.” The choice of anti-coagulant is “individualized based

on factors such as kidney function, acuity of illness, risk of bleeding and cost.”

Treatment generally continues for at least 3 months, although some patients require

life-long treatment based on their continuing risk factors.

The addendum concludes by stating: “In this case, the failure of the treating

physician to diagnose pulmonary embolism denied the patient the significant

mortality reduction provided by systemic anti-coagulation.”

After the Jacksons filed their addendum, Dr. McKerley amended his motion

to dismiss, contending the addendum did not address the initial report’s deficiencies

with respect to causation. The trial court held a hearing, after which it denied the

motion, and Dr. McKerley timely appealed.

We review the trial court’s decision to deny a motion to dismiss challenging

the adequacy of a Chapter 74 expert report for abuse of discretion. Abshire v.

Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018). Under Chapter 74,

claimants in health care liability cases must serve an expert report on each defendant.

TEX. CIV. PRAC. & REM. CODE § 74.351. The purpose of this “requirement is to weed

out frivolous malpractice claims in the early stages of litigation, not to dispose of

potentially meritorious claims.” Abshire, 563 S.W.3d at 223. The report must fairly

–6– summarize “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.

§ 74.351(r)(6).

A report is adequate under the statute if it contains sufficient information to

inform the defendant of the specific conduct at issue and provide a basis for the trial

court to conclude the claims have merit. Abshire, 563 S.W.3d at 223. It “need not

marshal all of the claimant’s proof,” nor must it meet the same standards as the

evidence offered at summary judgment or trial. Methodist Hosps. of Dallas v. Nieto,

No. 05-18-01073-CV, 2019 WL 6044550, at *7 (Tex. App.—Dallas Nov. 15, 2019,

no pet. h.) (mem. op.). But it must offer more than an expert’s conclusory statements

about the standard of care, breach, and damages. Abshire, 563 S.W.3d at 223. Thus,

“the expert must explain the basis of his statements to link his or her conclusions to

the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A trial court may grant a motion to dismiss based on the inadequacy of an

expert report only “if it appears to the court, after hearing, that the report does not

represent an objective good faith effort to comply” with the statute. TEX. CIV. PRAC.

& REM. CODE § 74.351(l). When reviewing a report’s adequacy, we consider only

the information contained within the four corners of the report. Abshire, 563 S.W.3d

–7– at 223. And although we “may not ‘fill gaps’ in an expert report by drawing

inferences or guessing what the expert likely meant or intended,” “we do not

abandon common sense” when reviewing these reports. Id.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY CONSIDERING THE ADDENDUM

Dr. McKerley first contends the trial court abused its discretion to the extent

it considered the addendum, arguing that, because the addendum does not identify

Dr. Jones as its author, it does not qualify as an expert report under Chapter 74. For

support, Dr. McKerley points to cases holding that expert reports were deficient for

failing to identify and establish the qualifications of opining physicians. See, e.g.,

Mimari v. Johnson, No. 04-06-00454-CV, 2006 WL 3206068, at * 2 (Tex. App.—

San Antonio Nov. 8, 2006, no pet.); Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d

727, 730–32 (Tex. App.—San Antonio 1999, no pet.). Those cases are inapposite,

however, because they did not involve an addendum to a previously served report in

which the opining physician is identified. The relevant inquiry here is not whether

the addendum itself qualifies as an expert report; it is whether the addendum, when

considered in combination with Dr. Jones’s initial report, satisfies the statute’s

requirements.

To the extent Dr. McKerley complains that Dr. Jones did not sign the

addendum, nothing in the statute requires a signature on an expert report, much less

on an addendum to a report that was signed by the physician. See Carreras v.

–8– Marroquin, No. 13-05-082-CV, 2005 WL 2461744, at * 1 (Tex. App.—Corpus

Christi–Edinburg Oct. 6, 2005, pet. denied) (mem. op.) (“[W]e reject Carreras’s

contention that the statute requires an expert report to bear the expert’s signature.

Nothing in the statute provides for such a requirement.”). The Jacksons served a

single report from a single expert. They then served a document, in response to a

court order requiring an amendment to their expert report, identifying itself as the

plaintiffs’ “Expert Report Addendum.” There is no ambiguity as to whose opinions

are supplemented by the addendum. And absent a genuine dispute about the

addendum’s authenticity,1 the trial court did not abuse its discretion by considering

it.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE MOTION TO DISMISS

Dr. McKerley next contends Dr. Jones’s opinions are conclusory and thus do

not constitute a good faith effort to comply with the statute as to breach or causation.

To constitute a good faith effort, the report need only inform Dr. McKerley of the

specific conduct at issue and provide a basis for the trial court to conclude the

plaintiffs’ claims are not meritless. Abshire, 563 S.W.3d at 223. Dr. Jones’s report

clears this low bar. See Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht,

1 We note that Dr. McKerley did not challenge the addendum’s authenticity in advance of the hearing on his amended motion to dismiss. Had he done so, the Jacksons might have been able to present evidence establishing that Dr. Jones provided the opinions in the addendum. –9– J., concurring in part and dissenting in part) (“An expert report, as we have

interpreted it, is a low threshold a person claiming against a health care provider

must cross merely to show that his claim is not frivolous.”).

Dr. Jones specifies the conduct at issue—Dr. McKerley’s alleged failure to

follow the standard protocol for evaluating patients with dyspnea to rule out

potentially fatal conditions like pulmonary embolism. Dr. Jones explains that the

standard of care requires emergency physicians like Dr. McKerley to rule out a

pulmonary embolism whenever a patient like Merlenia presents with dyspnea that

cannot be attributed to another source after an exam, x-ray, and blood work. Dr.

Jones explained that Merlenia’s treating physician should have performed a “D-

dimer” blood test to rule out a pulmonary embolism, with a chest CT scan used to

confirm any positive result. Yet, according to Dr. Jones, Dr. McKerley did not fully

evaluate whether Merlenia had a pulmonary embolism, and he discharged her

without discovering the root cause of her dyspnea, both of which breached the

standard of care.

With respect to causation, Dr. Jones explained that the treating physician’s

failure to follow standard protocol for evaluating patients with dyspnea resulted in

Merlenia being discharged without receiving treatment for her pulmonary embolism.

Dr. Jones stated that, according to recent studies, the mortality rate for patients

treated for pulmonary embolisms is lower than four percent, while the mortality rate

–10– for patients with untreated pulmonary embolisms is thirty percent. By failing to

diagnose Merlenia’s pulmonary embolism, Dr. Jones opined, the treating physician

deprived her of the “significant mortality reduction provided by systemic anti-

coagulation.” Thus, she opined, the treating physician’s breach of the standard of

care led to Merlenia’s “death to a reasonable degree of medical certainty.”

In our view, Dr. Jones’s report provides a straightforward link between Dr.

McKerley’s alleged breach of the standard of care—failing to follow established

protocol for treating patients with dyspnea—and Merlenia’s death from an

undiagnosed pulmonary embolism. See Abshire, 563 S.W.3d at 223. We affirm the

trial court’s order denying Dr. McKerley’s motion to dismiss.

/Cory L. Carlyle/ 210050f.p05 CORY L. CARLYLE JUSTICE

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MATTHEW MCKERLEY, D.O., On Appeal from the 68th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-19-10884. No. 05-21-00050-CV V. Opinion delivered by Justice Carlyle. Justices Myers and Partida-Kipness DANISHA JACKSON AND DEVIN participating. JACKSON, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF MERLENIA JACKSON, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Danisha Jackson and Devin Jackson, individually and as representatives of the Estate of Merlenia Jackson recover their costs of this appeal from appellant Matthew McKerley, D.O.

Judgment entered this 17th day of February, 2022.

–12–