Michael Wierschem, M.D. v. William Bourgeois and Carolyn Bourgeois

Opinion

AFFIRMED; Opinion Filed April 2, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00866-CV

MICHAEL WIERSCHEM, M.D., Appellant V. WILLIAM BOURGEOIS AND CAROLYN BOURGEOIS, Appellees

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-02281-2018

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Evans Opinion by Justice Nowell William Bourgeois and Carolyn Bourgeois1 sued Michael Wierschem, M.D.2

for negligence. Appellees timely filed an expert report pursuant to Chapter 74 of the

Texas Civil Practice and Remedies Code. Wierschem filed a motion to dismiss the

suit pursuant to section 74.351, which the trial court denied. In four issues,

Wierschem argues the trial court erred by denying his motion to dismiss because

1 Because William and Carolyn Bourgeois have the same surname, we will refer to them individually by their first names and collectively as “appellees.” 2 Appellees also sued Frisco Medical Center LLP d/b/a Baylor Scott & White Medical Center-Frisco (“Baylor Frisco”). Baylor Frisco is not a party to this appeal. appellees did not serve an expert report that meets the requirements of section

74.351. Specifically, Wierschem asserts appellees’ expert fails to establish he is

qualified to opine on causation, does not clearly describe the standard of care

Wierschem allegedly violated, and does not provide the requisite causal connection.

We affirm the trial court’s order and remand this cause to the trial court for further

proceedings.

FACTUAL BACKGROUND

A. Allegations in the Original Petition

According to appellees’ live pleading, William sought treatment from

Wierschem, a urologist and surgeon. On March 8, 2016, Wierschem performed two

procedures on William: a laser thulium ablation of the prostate and a circumcision.

On the morning of surgery, William was in good mental health.

Following the day surgery, William was discharged from Baylor Frisco. In

the evening while at home, William began acting strangely and showing signs of

mental deterioration; Carolyn called the paramedics. William was taken to Medical

Center of McKinney Hospital where tests showed his sodium level was 119.

Appellees allege: “This reading is significantly lower than what would be a normal

reading. This kind of a reading is a classic sign indicative of brain injury with mental

impairment.” Since then, William has suffered mental impairment and is unable to

perform normal day-to-day activities.

–2– Appellees allege Wierschem negligently administered too many liters of

lactated ringers during the procedures, which depleted William’s sodium reserves.

They also allege Wierschem was negligent because he failed to perform a blood test

after the procedure to determine William’s sodium level, which he should have done

because of the large quantity of lactated ringers administered; failed to keep William

for observation following the procedure, which he should have done because of

William’s age and the quantity of lactated ringers administered; and failed to

administer or order the administration of saline solutions to William.

As required by section 74.351 of the Texas Civil Practice and Remedies Code,

appellees timely served an expert report from Robert Kessler, M.D. Wierschem

objected to the report and moved to dismiss. The trial court gave appellees thirty

days to file an amended report “that provides a fair summary of Dr. Kessler’s opinion

describing the causal relationship between Dr. Wierschem’s failure to meet the

applicable standard of care and the injury, harm or damages claimed” by appellees.

Appellees did so. Wierschem again objected to the report and filed a second motion

to dismiss arguing the revised report also did not satisfy the requirements of section

74.351. The trial court denied the motion, and this appeal followed.

B. Amended Expert Report from Robert Kessler

Kessler is a medical doctor who practiced urology for approximately forty-

five years until he retired on July 1, 2018; from 1988 until his retirement, he was a

–3– Professor of Urology at Stanford University Medical Center.3 He performed

numerous procedures involving the prostate, including procedures similar to those

Wierschem performed on William. Kessler also chaired the Quality Assurance

Programs at Stanford University Medical Center; in that role, he reviewed claims to

determine whether medical practitioners, hospitals, clinics, and nursing personnel

breached the standard of care. As Chair, he also studied many areas of urology

practice, including prostate ablation. From his service as Chair and from many years

of practice, he is familiar with the standards of care applicable to a practicing

urologist. Kessler is familiar with the condition known at hyponatremia, which is

defined as a sodium reading less than 134.

Kessler’s amended report states William’s sodium level was 139 when it was

tested approximately one month before the surgery. The pre-surgery records

indicate no issues with William’s mental functioning; “he was alert, oriented to place

and time, and functioned quite well.”

Wierschem performed a laser thulium ablation of the prostate, a procedure

that involves a “high-energy device vaporizing the prostate and opening up the

channel for urine flow.” The procedure evaporates the tissue on the prostate, opens

vessels, allows the vessels to absorb fluids, and depletes sodium. Normally water

irrigation is done during and after a thulium ablation of the prostate.

3 Kessler’s curriculum vitae is attached to and incorporated into his amended report.

–4– Kessler’s amended report states William was given at least six liters of

lactated ringers, he took water orally, and he was administered irrigation fluids.

“The combination of these fluids should have alerted the nurses and the doctor that

there was a probability of sodium depletion.” Even though the lactated ringers

contain sodium, “the amount of lactated ringers used plus the bladder irrigation plus

the oral consumption of fluids were too much and were the only cause of the sodium

depletion. . . . Again, surgeons and nursing staff should know of and be aware of the

possibility of abnormal electrolytes which could include hyponatremia.”

The large amount of fluid administered to William, which was not recorded,

should have alerted Wierschem and the nurses that blood tests for hematocrit, CBC,

and electrolytes should have been performed. Given Mr. Bourgeois’ age and the

combination of procedures done, the standard of care would dictate that a simple

blood test be done after the procedure. Sodium depletion would show up almost

immediately in the blood work. However, no blood test was performed after the

procedure. Not performing the test was a deviation from the standard of care, was

negligent, and caused damage to William. Kessler states: “The failure to address

fluid issues during Mr. Bourgeois’ stay at Baylor Frisco under the direction of Dr.

Wierschem meets the definition of negligence, ordinary care [sic], and proximate

causation.”

Kessler’s amended report states there should have been a record of the full

amount of fluids William excreted; the standard of care dictates “that the amount of –5– fluids expelled by Mr. Bourgeois [sic] so that the nurses and doctors would be

informed of the amount of fluids excreted and this would tell them that this should

be performed.” Such information “could have given the nurse or doctor an

indication of the amount of fluids that had gone through his body. Whether those

fluids would have been urine or irrigation fluids, the amount is important to know.”

No record of the amount of fluid excreted by William exists.

The standard of care for this procedure also “would include close monitoring

of the patient.” However, the medical records include few notes about monitoring

William after he left the recovery area. Given William’s age and the procedures

done, “[m]ost physicians would keep the patient overnight . . . . This would have

allowed for earlier monitoring and a quicker response had the test been done to

determine whether he suffered from hyponatremia.”

Kessler’s amended report states: “The day of admission to Medical Center of

McKinney, Mr. Bourgeois’ sodium was 119. This is a critical finding which could

be a cause of cell damage in the brain.” Based on his knowledge about what occurs

when one does not have an adequate sodium level and his review of the notes from

a neurologist, Kessler determined William had cell damage to his brain but did not

have a stroke. His amended report states: “Readings as low as 119 are very serious

and can lead to, and in this case, did lead to brain damage for Mr. Bourgeois.” He

continues: “In the practice of urology, a practitioner must be aware of this condition

happening when fluids are used.” –6– LAW & ANALYSIS

Chapter 74 of the Texas Civil Practice and Remedies Code requires claimants

in health care liability cases to serve an expert report on each defendant. TEX. CIV.

PRAC. & REM. CODE § 74.351. The report must fairly 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.” Id. § 74.351(r)(6). 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 v. Christus Health Se. Tex., 563

S.W.3d 219, 223 (Tex. 2018).

“Importantly, the trial court need only find that the report constitutes a ‘good

faith effort’ to comply with the statutory requirements.” Id. (citing TEX. CIV. PRAC.

& REM. CODE § 74.351(l)). The Texas Supreme Court has “held that an expert report

demonstrates a ‘good faith effort’ when it ‘(1) inform[s] the defendant of the specific

conduct called into question and (2) provid[es] a basis for the trial court to conclude

the claims have merit.’” Id. (quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex.

2018)). A report “need not marshal all the claimant’s proof,” but “a report that

merely states the expert’s conclusions about the standard of care, breach, and

causation” is insufficient. Id. The “court’s job at this stage of the litigation is not to

–7– weigh the report’s credibility; that is, the court’s disagreement with the expert’s

opinion does not render the expert report conclusory.” Id. at 226.

We review a trial court’s order on a motion to dismiss a health care liability

claim based on the sufficiency of an expert’s report for an abuse of discretion. Id.

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner

without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,

539 (Tex. 2010).

A. Qualifications

Wierschem argues Kessler is not qualified to offer an expert opinion on

causation because Kessler is not a neurologist or blood chemist and, thus, lacks the

qualifications to draw a connection between low sodium levels and brain damage.

In a suit involving a health care liability claim against a physician, a person may

qualify as an expert witness on the issue of the causal relationship between the

alleged departure from accepted standards of care and the injury, harm, or damages

claimed “only if the person is a physician and is otherwise qualified to render

opinions on that causal relationship under the Texas Rules of Evidence.” TEX. CIV.

PRAC. & REM. CODE § 74.403(a). Texas Rule of Evidence 702 provides that a

witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion if the expert’s scientific, technical,

or other specialized knowledge will help the trier of fact to understand the evidence

or determine a fact issue. TEX. R. EVID. 702. –8– Kessler’s amended report addresses his “knowledge, skill, experience,

training, and education” regarding the subject of this lawsuit: how a urologist’s

alleged failure to monitor fluids administered to and excreted by a patient as well as

the failure to order a blood test to measure sodium levels caused the patient’s sodium

levels to become depleted without being detected and caused cell damage to the

brain. Not only is Kessler a licensed physician, he practiced urology for

approximately forty-five years. For approximately thirty years of his career, he was

a Professor of Urology at Stanford University Medical Center. He performed

numerous procedures involving the prostate, including procedures similar to those

Wierschem performed on William. He is familiar with the standard of care as a

practicing urologist. Kessler also chaired the Quality Assurance Programs at

Stanford University Medical Center; in that role, he reviewed claims to determine

whether medical practitioners performing urology services breached the standard of

care applicable to a practicing urologist. As Chair, he saw and studied many areas

of urology practice, including prostate ablation.

Based on Kessler’s extensive career as a urologist who performed procedures

similar to those performed in this case and who reviewed claims at Stanford

University Medical Center to determine whether urologists breached standards of

care in other cases, we cannot conclude the trial court abused its discretion by

determining he was qualified to opine about whether Wierschem, a urologist,

allegedly failed to properly monitor the fluids placed into and excreted from –9– Williams’ body and to conduct testing to determine William’s sodium levels, and

whether those failures caused William to experience low sodium levels leading to

cell damage in the brain.

B. Standard of Care

Wierschem asserts Kessler does not clearly describe the standards of care

Wierschem allegedly violated as distinct from the standards of care Baylor Frisco

allegedly violated. To adequately identify the standard of care, an expert report must

set forth “specific information about what the defendant should have done

differently.” Abshire, 563 S.W.3d at 226. While the Act requires only a “fair

summary” of the standard of care and how it was breached, “even a fair summary

must set out what care was expected, but not given.” Id.

Kessler’s amended report sets forth what Wierschem should have done and

what he did not do. Kessler’s amended report states a urologist performing the

relevant surgery should record the amount of fluid given to and excreted by the

patient, but Wierschem did not do so. The report further states Wierschem should

have been aware of the possibility of abnormal electrolytes, which could cause

hyponatremia. In this instance, based on the large amounts of fluid given, the

standard of care required Wierschem to order a blood test for William, which was

not done; Wierschem’s “failure to do a serum electrolyte was a deviation of the

standard of care.” Finally, according to the report, the standard of care required

–10– Wierschem to closely monitor the patient, which was not done; rather, William was

sent home shortly after the surgery.

Having reviewed the report, we cannot conclude the trial court abused its

discretion by determining Kessler’s amended report offers more than conclusory

statements about the standard of care. Acting within its discretion, the trial court

could have determined Kessler identifies specific actions that Wierschem should

have taken, but did not. The amended report adequately provides the applicable

standard of care for a urologist performing a laser thulium ablation of the prostate

and a circumcision on an older patient such as William.

C. Causation

Finally, Wierschem argues Kessler does not explain the cause of low sodium

as it relates to the procedures he performed. Kessler’s amended report states that

before surgery, William was in good mental health and his sodium reading was 139.

While William was at Baylor Frisco, he received at least six liters of lactated ringers,

orally consumed water, and had irrigation fluids added to his body. These fluids,

taken together, “were too much and were the only cause of the sodium depletion.”

The sodium depletion caused by excessive fluids left William’s sodium level at 119

by the time William arrived at Medical Center of McKinney. Kessler’s amended

report states: “Readings as low as 119 are very serious and can lead to, and in this

case, did lead to brain damage for Mr. Bourgeois.” Had Wierschem not breached

the standard of care, Wierschem would have monitored the fluid administered to and –11– excreted by William, ordered a blood test to measure sodium depletion, and

monitored William more closely. Doing so, “would have allowed for earlier

monitoring and a quicker response . . . to determine whether [William] suffered from

hyponatremia.”

Kessler’s amended report clearly sets forth the standards of care Wierschem

allegedly violated and how those breaches caused William’s injuries. Within hours

of the surgery during which excessive fluids allegedly were administered, William’s

sodium level fell to 119. Kessler explains that 119 is “very serious and . . . in this

case, did lead to brain damage for Mr. Bourgeois.” Monitoring the fluids put into

and excreted from William’s body, as the standard of care required, would have

allowed for earlier monitoring and a quicker response . . . to determine whether

[William] suffered from hyponatremia.”

We conclude the trial court did not abuse its discretion by determining

Kessler’s amended report represents an objective good faith effort to comply with

the statute. Acting within its discretion, the trial court could have determined

Kessler’s amended report contains sufficient information to inform Wierschem of

the specific conduct at issue and the trial court that appellees’ claims have merit.

That is, the trial court could have determined Kessler’s amended report adequately

explained the link between Wierschem’s alleged failures to properly monitor fluids

and administer a blood test, the sodium depletion in William’s body caused by the

excess fluids, and damage to the brain cells caused by depleted sodium levels. –12– Applying the relevant standard of review, we conclude the trial court properly found

Kessler’s amended report met the requirements of Chapter 74 of the civil practice

and remedies code.

CONCLUSION

We affirm the trial court’s order denying Wierschem’s motion to dismiss

pursuant to section 74.351. We remand this cause to the trial court for further

/Erin A. Nowell/ ERIN A. NOWELL JUSTICE

190866F.P05

Evans, J., dissenting

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

MICHAEL WIERSCHEM, M.D., On Appeal from the 429th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 429-02281- No. 05-19-00866-CV V. 2018. Opinion delivered by Justice Nowell. WILLIAM BOURGEOIS AND Justices Partida-Kipness and Evans CAROLYN BOURGEOIS, participating. Appellees

In accordance with this Court’s opinion of this date, the trial court’s order denying the motion to dismiss filed by appellant Michael Wierschem, M.D. is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 2nd day of April, 2020.

–14–