Michael H. Simpson, M. D., Individually and D/B/A El Paso Dermatology Center v. Maria P. Barton

527 S.W.3d 281, 2016 Tex. App. LEXIS 13112, 2016 WL 7176998
Court of Appeals of Texas·Decided December 9, 2016·No. 08-16-00076-CV·Published·Cited by 4 cases

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

In this interlocutory appeal, Dermatologist Dr. Michael Simpson challenges the adequacy of a Texas Medical Liability Act (TMLA) expert report submitted by patient Maria Barton, who allegedly developed a serious skin infection at the site of a biopsy performed by Dr. Simpson. In two issues, Dr. Simpson contends that Barton’s expert, internist Dr. Louis Rod-dy, is not qualified to opine on the standard of care applicable to dermatologists, and that in any event, Dr. Roddy failed to causally link Dr. Simpson’s failure to administer antibiotics to Barton with a later surgery Barton underwent to excise necrotic tissue from her leg. Because this report is deficient, Dr. Simpson says, the trial court abused its discretion by accepting it and pushing Barton’s case forward into discovery, rather than dismissing her case outright.

We discern no abuse of discretion on this record. We will affirm.

BACKGROUND

Factual History 1

In July 2012, Barton sought treatment for swelling and lower leg pain at the El Paso Dermatology Center. There, Dr. Simpson diagnosed Barton with erythema nodosum, a skin condition marked by red or violet subcutaneous nodules. Erythema nodosum can ordinarily be diagnosed clinically, but biopsies may be ordered in atypical cases. Several months after the initial consult, on March 4, 2013, Dr. Simpson performed a 3-millimeter “punch biopsy” of Barton’s lower left leg. The pathologist’s report showed only “mild nonspecific changes.” Later, on May 20, 2013, Dr, Simpson performed another, deeper 5-mil-limeter biopsy of the lower left leg which revealed an “area of previous fat necrosis with fibrosis and microcalcifications. No inflammation or vasculitis identified.” The level of follow-up care required of, and actually administered by, Dr. Simpson in the wake of these biopsies is the central issue in this appeal.

*284 Two days after the second biopsy, on May 22, 2013, Dr. Simpson changed the bandage over Barton’s biopsy site. On June 15, 2013, Barton sought further treatment from Dr. Simpson, explaining that the biopsy site on her leg had expanded. She complained that she was in extreme pain and that a bad smell was emanating from the biopsy wound. According to Dr. Roddy, the biopsy site’s appearance and bad smell should have alerted Dr. Simpson to the presence of an infection treatable with antibiotics. Dr. Simpson told Barton that this was part of the healing process. He also stated that there was nothing further he could do for her. He referred Barton to the Mayo Clinic, and gave her a copy of her medical records.

Four days later, on June 19, 2013, Barton, still in severe pain with a foul smell coming from the biopsy site sought treatment at Sierra Medical Center. She was admitted, diagnosed with a severe infection, and administered antibiotics. Because the infection was located deep in the skin, Barton ultimately underwent surgery on August 4, 2013, to remove the infected tissue.

Procedural History

Barton filed suit against Dr. Simpson and timely served an expert report and curriculum vitae from Dr. Roddy. Relying on Barton’s medical records and photographs of the biopsy site before and after surgery, Dr.'Roddy in his report faulted Dr. Simpson for failing to administer antibiotics during Barton’s visit on June 15, 2013. Dr. Roddy explained that infections left untreated become harder to treat with antibiotics as time goes on, opining that if Dr. Simpson had administered antibiotics during Barton’s last visit, Barton more likely than not could have avoided surgery. Dr. Roddy also stated that he was board certified in internal medicine, that he had previous experience “diagnosing and treating skin infections with antibiotics under similar circumstances!!,]” and that the standard of care for treating infections was the same for dermatologists and internists.

Dr. Simpson objected to Dr. Roddy’s report, arguing that Dr. Roddy failed to set out his qualifications to opine on the standard of care, and that he failed to establish causation. The trial court overruled the causation objection, but sustained the qualifications objection and permitted Barton to submit an amended report curing the deficiencies in Dr. Rod-dy’s initial report. In response, Dr. Roddy submitted the following one-paragraph supplement to his report:

This is a supplemental report concerning my qualifications. I have education and training for the diagnosis and treatment of skin infections as a result of biopsies, under the same or similar circumstances as in this case. Skin infections as a result of biopsies such as in this case are diagnosed and treated the same by internists and dermatologists. The diagnosis and treatment of skin infections as a result of biopsies under the same or similar circumstances as in this case are equally developed in dermatology and internal medicine.

Dr. Simpson again objected to the sufficiency of Dr. Roddy’s report, and moved to dismiss the case. The trial court found that the supplemental report cured the deficiencies in Dr. Roddy’s initial report, and denied the motion to dismiss. This appeal followed. We have interlocutory jurisdiction. Tex.Civ.Peac. & Rem.Code Ann. § 51.014(a)(8)(West Supp. 2015).

DISCUSSION

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Michael H. Simpson, M. D., Individually and D/B/A El Paso Dermatology Center v. Maria P. Barton, 527 S.W.3d 281, 2016 Tex. App. LEXIS 13112, 2016 WL 7176998 (Tex. Ct. App. 2016).

527 S.W.3d 281 (Michael H. Simpson, M. D., Individually and D/B/A El Paso Dermatology Center v. Maria P. Barton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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