Affirmed and Opinion filed June 28, 2007.
In The
Fourteenth Court of
Appeals
____________
NO. 14-05-01028-CV
MEMORIAL HERMANN HEALTHCARE SYSTEM
d/b/a MEMORIAL HERMANN SOUTHWEST HOSPITAL and DOMINIC GREGORY SRESHTA, M.D.,
Appellants
V.
VINCENT BURRELL a/n/f of KATIE
WHITFIELD, Appellee
On Appeal from the 11th District
Court
Harris County, Texas
Trial Court Cause No. 04-45729
O P I N I O
N
This is an interlocutory appeal in a
health care liability case. Appellee Vincent Burrell, as next friend of
Katie Whitefield, sued appellants, Memorial Hermann Healthcare System and Dr.
Dominic Gregory Sreshta, for medical malpractice. In two issues,
appellants challenge the trial court’s denial of their objection to appellee’s
expert witness report and
class=Section2>
motion to dismiss under section
74.351 of the Texas Civil Practices and Remedies Code. We affirm.
Factual
and Procedural Background
On November 19, 2002, Katie
Whitfield, an obese woman suffering from Alzheimer’s, was brought to the
Memorial Hermann Southwest Hospital emergency room and admitted to the
hospital. While in the hospital, she was treated by Dr. Dominic
Sreshta. Whitfield was discharged from the hospital on November 25.
Whitfield alleges she developed decubitus ulcers (bedsores) in her sacral area
because of substandard care received at the hospital. After filing suit,
appellee filed an expert report by Dr. Thomas Winters pursuant to Chapter 74 of
the Texas Civil Practice and Remedies Code. Appellants filed a motion to
dismiss for failure to comply with section 74.351. The trial court denied appellants’ motion and found Dr. Winters
qualified to provide an expert report in this case. In its order, the
trial court ruled, alternatively, “that [appellee] has made an objective good
faith effort to comply with the definition of an expert report as required by
relevant statute such that this Court would grant an extension for [appellee] to
comply with the statute if it found or if a reviewing Court were to find that
Dr. Winters’ report does not comply with the statute.” Appellants filed
this interlocutory appeal pursuant to section 51.014(a)(9) of the Texas
Civil Practice and Remedies Code.
Discussion
I.
Issues Presented
Appellants present two issues on appeal: (1) whether appellee’s expert is
qualified to file an expert report under section 74.351 of the Texas Civil
Practices and Remedies Code; and (2) if not, whether appellee is entitled to an
extension of time to cure the expert report.
II.
Standard of Review
We review a trial
court’s determination that an expert is qualified under an abuse of discretion
standard. Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996);
Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.]
2005, pet. filed). Appellee, as the proponent of the expert, has the
burden to show that the expert is qualified and the expert report satisfies the
statutory requirements. See Olveda v. Sepulveda, 141 S.W.3d 679,
682–83 (Tex. App.—San Antonio 2004, pet. denied). The trial court abuses
its discretion if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004). We may not reverse a trial court’s
discretionary ruling simply because we might have decided it differently.
See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (construing former
statute).
III.
Is Dr. Winters Qualified As An Expert?
In appellants’ first issue, they
contend appellee failed to comply with section 74.351 of the Texas Civil
Practice and Remedies Code because (1) Dr. Winters is not qualified as an expert
under section 74.402, and (2) Dr. Winters is not qualified to testify about
causation under Rule 702 of the Texas Rules of Evidence.
A. What evidence
may this court consider when determining if a party complied with Section
74.351?
Before addressing the merits of
appellants’ argument that Dr. Winters is not qualified as an expert, we must
determine what evidence we may consider in our analysis. In support of
their argument, appellants refer us to excerpts from Dr. Winters’ depositions in
other cases, the affidavit of Dr. Vartian, and standards promulgated by the
Infectious Diseases Society of America. However, our analysis of the
qualifications of an expert under section 74.351 is limited to the four corners
of the expert’s report and curriculum vitae. See Am. Transitional
Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (holding
issue of compliance of an expert report with the substantive requirements of
former article 4590i
class=Section3>
is determined on the basis of
information contained within the four corners of the report); Randalls Food
& Drugs, L.P. v. Kocurek, No. 14-05-01184-CV, 2006 WL 2771872, at *2–3
(Tex. App.—Houston [14th Dist.] Sept. 28, 2006, no pet.) (mem op.) (applying
four corners rule in determining the qualifications of an expert under section
74.351); Fontenot Enter., Inc. v. Kronick, No. 14-05-01256-CV, 2006 WL
2827415, at *4 (Tex. App.—Houston [14th Dist.] Oct. 5, 2006, no pet.) (mem op.)
(applying four corners rule in determining the qualifications of an expert under
section 74.351). Therefore, we consider only Dr. Winters’ report and
curriculum vitae to determine whether he is qualified as an expert under section
74.351. (We have attached a complete copy of Dr. Winters’ expert report as
an appendix to this opinion.)
B.
Section 74.402
Appellants contend Dr. Winters is not
qualified as an expert under the requirements set forth in section 74.402 of the
Texas Civil Practice and Remedies Code. An expert providing opinion
testimony regarding whether a health care provider departed from the accepted
standards of health care must satisfy the requirements set forth in section
74.402. Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(5)(B) (Vernon Supp. 2005). Section 74.402
provides:
(b) In a suit involving a health care liability claim
against a health care provider, a person may qualify as an expert witness on the
issue of whether the health care provider departed from accepted standards of
care only if the person:
(1) is practicing health care in a field of practice
that involves the same type of care or treatment as that delivered by the
defendant health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that type of
health care at the time the claim arose;
(2) has knowledge of accepted standards of care for
health care providers for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim; and
class=Section4>
(3) is qualified on the basis of training or experience
to offer an expert opinion regarding those accepted standards of health
care.
Tex. Civ.
Prac. & Rem. Code Ann. § 74.402(b) (Vernon
2005). In determining whether a witness is qualified “on the basis
of training or experience,” the court shall consider whether, at the time the
claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more
states of the United States or a national professional certifying agency, or has
other substantial training or experience, in the area of health care relevant to
the claim; and
(2) is actively practicing health
care in rendering health care services relevant to the claim.
Tex. Civ.
Prac. & Rem. Code Ann. § 74.402(c)(1)–(2).
Appellants specifically challenge Dr. Winters’ qualifications under sections
74.402(b)(2) and (b)(3). Appellants first argue Dr. Winters’ expert report
does not set forth his experience; rather, the report contains only conclusory
statements that he is “familiar” or has “experience” with the prevention and
treatment of decubitus ulcers. See Methodist Health Care Sys. of San Antonio, Ltd. v.
Rangel, No. 04-05-00500-CV, 2005 WL
3445994, at *2–3 (Tex. App.—San Antonio Dec. 14, 2005, pet. denied) (mem.
op.) (holding doctor was not qualified under section 74.402 where expert
report failed to state how the doctor’s experience on a peer review committee and as an administrative director
constituted training or experience which qualified him to opine about the
standard of care at issue); In re Windisch, 138 S.W.3d 507, 513–14
& n.11 (Tex. App.—Amarillo 2004, orig. proceeding) (holding conclusory
statements referencing an expert’s qualifications are insufficient to show the
expert is qualified on the particular subject matter at hand when the expert
report only tracks the language of the statute and does not bridge the gap
between his experience and the medical procedure at issue). Contrary to
appellants’ contention, Dr. Winters’ expert report provides the following
description of his experience with decubitus ulcers: “I am familiar with the
standard of care as it pertains to prevention and treatment of decubitus
ulcers. I have
class=Section5>
experience in instructing nurses and
other personnel in the proper techniques to prevent decubitus ulcers and I have
treated patients with decubitus ulcers over the course of my practice as an
infectious disease internist and occupational doctor.” Dr. Winters’ report
provides that he has completed a fellowship and practiced for more than
twenty-five years in the field of infectious disease. In his curriculum
vitae, Dr. Winters indicates he has been board certified in occupational
medicine since 1992 and board eligible in infectious disease since
1977. We reject appellants’ argument that Dr. Winters’ expert report is
conclusory and fails to set forth his experience.
Appellants also argue Dr. Winters’ expert report does not show his requisite
knowledge of decubitus ulcers. They first cite Forrest v.
Danielson, 77 S.W.3d 842, 848 (Tex. App.—Tyler 2002, no pet.), a case in
which the Tyler court of appeals held that a medical doctor was not qualified to
render an expert opinion because the doctor’s expert’s report did not
demonstrate experience with the medical procedure at issue or familiarity with
the applicable standard of care. The proffered expert in Forrest
was an orthopedic surgeon, and the procedure at issue was spinal surgery.
Id. at 846–47. The expert did not link his experience as an
orthopedic surgeon to the patient’s spinal surgery, and his expert report
consisted of a one page letter describing the patient’s medical history and
opining that surgery was unnecessary. Id. Appellants next
cite Tomasi v. Liao, 63 S.W.3d 62, 65 (Tex. App.—San Antonio 2001, no
pet.), in which a medical doctor specializing in psychiatry submitted an expert
report regarding a patient’s post-operative care following neurosurgery.
The San Antonio court of appeals rejected the expert’s report because his only
link to the illness at issue was his service on a peer review committee and his
status as a diplomat of the American Board of Psychiatry and Neurology.
Id. at 66. The doctor did not adequately link his experience on the
peer review committee with the medical treatment at issue by describing his
committee or diplomat service or why it was relevant. Id.; see
also In re Samonte, 163 S.W.3d 229, 237–38 (Tex. App.—El Paso 2005,
orig. proceeding) (holding proffered expert was not qualified because his expert
report did not describe his
class=Section6>
qualifications or experience in the
field of medicine at issue). Unlike the experts in the cases
cited by appellants, Dr. Winters does link his experience in his medical
specialities (internal medicine, occupational medicine, and infectious disease)
to decubitus ulcers by stating in his report that, over the course of his career
in each of these three specialities, he has treated patients with decubitus
ulcers and trained nurses and other personnel in the proper techniques to
prevent decubitus ulcers.
Under section 74.402(b)(2), appellee must demonstrate that Dr. Winters has
knowledge of the accepted standards of care for the diagnosis, care, or
treatment of Ms. Whitfield’s injury or condition. See Tex. Civ. Prac. & Rem. Code Ann. §
74.402(b)(2). In his expert report, Dr. Winters states that he is familiar
with the standard of care as it pertains to the prevention and treatment of
decubitus ulcers. Dr. Winters’ expert report contains a section titled
“Standard of Care,” which provides clear, fact-based explanations of the
standards of care applicable to both Memorial Hermann Southwest Hospital and Dr.
Sreshta. As it pertains to Memorial Hermann Southwest Hospital, Dr.
Winters states that the standard of care requires the use of pressure reducing
mattresses, repositioning of the patient every two hours, and impeccable skin
care in order to prevent the formation of decubitus ulcers. As it pertains
to Dr. Sreshta, Dr. Winters states that the standard of care requires timely and
appropriate interventions to medically treat decubitus ulcers; specifically,
upon being informed of a brown, necrotic ulcer
with odor, the standard of care requires prompt medical evaluation along with a
CBC, culture of the ulcer, and antibiotic treatment. Accordingly,
Dr. Winters’ expert report satisfies the requirements of section
74.402(b)(2). See Group v. Vicento, 164 S.W.3d 724, 734
(Tex. App.—Houston [14th Dist.] 2005, pet. filed) (holding a doctor’s statement
that he has knowledge of the accepted standard of care for the injury or illness
at issue satisfies section 74.402(b)(2)).
Under section 74.402(b)(3), appellee must demonstrate Dr. Winters is qualified
on the basis of training or experience to offer an expert opinion regarding the
accepted standards of health care. See Tex. Civ. Prac. & Rem. Code Ann. §
74.402(b)(3). To determine whether Dr. Winters is qualified under section
74.402(b)(3), we consider whether Dr. Winters is (1) certified by a licensing
agency or has substantial training or experience relevant to the claim, and (2)
whether he is actively practicing health care relevant to the claim.
See Id. §
74.402(c)(1)–(2).
Regarding the first prong of 74.402(c), appellants argue Dr. Winters is not
board certified in infectious diseases. A plain reading of the statute
does not disqualify Dr. Winters because he lacks board certification.
See id. § 74.402(c)(1). Dr. Winters may also be qualified under
section 74.402(c)(1) if he has substantial training or experience in an area of
health care relevant to the claim. Id. Thus, we must
decide whether, over the more than twenty-five years of practicing medicine, Dr.
Winters has obtained substantial training or experience relevant to the
prevention and treatment of decubitus ulcers. In his report, Dr. Winters
explains he has trained personnel on the prevention and treatment of decubitus
ulcers and treated patients with decubitus ulcers over the course of his practice as a
doctor of internal medicine, occupational medicine, and infectious
disease. We know from his curriculum vitae that Dr. Winters is board
eligible in infectious disease, a fellow in infectious disease, and has relevant
teaching experience (Primary Care Practice Teaching, Medical Ward Attending,
Attending Infectious Disease Service, and Occupational Medicine Clinic
Attending). Based on information about his past and present experience
relevant to infectious diseases, and particularly decubitus ulcers, we conclude
Dr. Winters has substantial training or experience in an area of health care
relevant to appellee’s claim. Therefore, Dr. Winters is qualified under
section 74.402(c)(1).
Regarding the second prong of section 74.402(c), appellants contend Dr. Winters
is not actively practicing health care in an area relevant to appellee’s
claim. Appellants argue that because Dr. Winters currently practices
occupational medicine, he is not qualified to render an opinion about the
diagnosis and treatment of decubitus ulcers. Appellants cite a sampling of
cases in which occupational doctors testified about exposure to hazardous
chemicals, lead, or silica dust, or an individual’s ability to return to work
after injury.
Appellants argue that Dr. Winters, as a doctor of occupational medicine, would
be qualified as an expert only on similar topics. Appellants’ argument is
unpersuasive.
The cases cited by appellants do not hold that a doctor practicing occupational
medicine cannot testify about decubitus ulcers. Moreover, our analysis is
not based on the types of cases in which occupational doctors have testified or
even whether Dr. Winters is in the same field of practice as appellants; rather,
our analysis under section 74.402(c)(2) focuses on the issue of whether Dr.
Winters is actively practicing health care in rendering health care services
relevant to decubitus ulcers. See id. § 74.402(c)(2).
Section 74.402
broadly defines “practicing health care” as including “(1) training health care providers in the
same field as the defendant health care provider at an accredited educational
institution; or (2) serving as a consulting health care provider and being
licensed, certified, or registered in the same field as the defendant health
care provider.” Id. §
74.402(a)(1)–(2). In his expert report, Dr. Winters states that he has
treated patients with decubitus ulcers in his practice as an occupational
doctor. Dr. Winter’s curriculum vitae indicates he is currently employed
as medical director of occupational and environmental health at both Quincy
Hospital and Milton Hospital. He is the current chief of
occupational medicine at New England Baptist Hospital, and the medical director
of occupational and employee health for Cape Cod Health Care Systems. Dr.
Winters is also currently training health care providers in the field of
occupational and environmental health in his capacity as a guest lecturer at the
Harvard School of Public Health. Based on Dr. Winters’ expert report and
curriculum vitae, we conclude that Dr. Winters is actively practicing health
care in rendering health care services relevant to appellee’s claim. See id. §
74.402(c)(2). Accordingly, appellee has satisfied the
requirements of 74.402(b)(3).
We hold the trial court did not abuse its discretion in determining that Dr.
Winters’ expert report and curriculum vitae satisfy the requirements of sections
74.402(b)(2) and (b)(3).
C.
Texas Rule of Evidence 702
Appellants next argue Dr.
Winters is not qualified to render an expert opinion on the issue of causation
because he does not have sufficient expertise in the prevention and treatment of
decubitus ulcers. Section 74.351(r)(5)(C) of the Texas Civil Practice and
Remedies Code requires “a person giving opinion testimony about the causal
relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care in any health care liability
claim” to be qualified under the Texas Rules of Evidence. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(5)(C). Texas Rule of Evidence 702 states: “If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. The
trial court makes the initial determination about whether the expert and the
proffered testimony meet these requirements. E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The trial
court has broad discretion to determine admissibility, and we will reverse only
if there is a clear abuse of discretion shown. Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 718–19 (Tex. 1998).
There are no definitive guidelines
for determining whether a witness’s education, experience, skill, or training
qualify him as an expert. State v. Northborough Ctr., Inc., 987
S.W.2d 187, 193 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The
party offering the witness as an expert must establish that the witness is
qualified to testify under Rule 702 by demonstrating the witness has expertise
concerning the actual subject matter about which the party is offering an
opinion. Helena Chem. Co. v. Wilkins, 47 S.W.2d 486, 498 (Tex.
2001); Broders, 924 S.W.2d at 153.
Dr. Winters is board certified
in internal medicine and occupational medicine. He has twenty-five years
of experience as a medical doctor, including direct experience in treating
patients with decubitus ulcers and instructing nurses and other personnel in the
proper techniques to prevent decubitus ulcers. Based on Dr. Winters’
education, training, and experience, as set forth in his expert report and
curriculum vitae, we conclude that Dr. Winters satisfies the requirements of
Rule 702 and is qualified to render an expert opinion on causation in this case
pursuant to section 74.351(r)(5)(C). We overrule appellants’ argument
pertaining to Rule 702.
Appellants’ first issue is overruled.
IV.
Extension of Time
In their second issue, appellants
contend appellee should not be entitled to an extension of time because filing a
deficient expert report is the equivalent of filing no report at all.
Because we affirm the judgment of the trial court denying appellants’ motion to
dismiss, find appellee’s expert qualified, and his expert report satisfies all
requisite criteria, we need not reach appellants’ second issue. See Tex. R. App. P. 47.1.
Conclusion
We overrule appellants’ first issue
and hold the trial court did not abuse its discretion in finding Dr. Winters
qualified to provide an expert report in this case. We do not consider
appellants’ second issue as to whether appellee is entitled to an extension of time to cure the allegedly deficient
expert report. We affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Opinion filed
June 28, 2007.
Panel consists of Justices Anderson,
Edelman, and Frost.
APPENDIX