Olveda v. Sepulveda

141 S.W.3d 679, 2004 WL 1159319
CourtCourt of Appeals of Texas
DecidedJune 24, 2004
Docket04-03-00319-CV
StatusPublished
Cited by54 cases

This text of 141 S.W.3d 679 (Olveda v. Sepulveda) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olveda v. Sepulveda, 141 S.W.3d 679, 2004 WL 1159319 (Tex. Ct. App. 2004).

Opinions

OPINION

KAREN ANGELINI, Justice.

Gilbert H. Olveda, Jr., and Brendalee Olveda-North (“the Olvedas”), individually and as representatives of the estate of Freída Hernandez, appeal the trial court’s dismissal of their claims against Rene A. Sepulveda, M.D., and Baptist Health System (“Hospital”). According to the trial court, the expert reports filed by the Olve-das do not comply with the statutory requirements of the Texas Medical and Insurance Improvement Act (“Act”). The Olvedas disagree. They present three issues on appeal, arguing that: (1) the obstetric anesthesiologist who provided an expert report for the Olvedas is qualified to testify on the standard of care for urologists because the urologist in this case deviated from a standard of care common to all physicians; (2) a nurse’s expert report coupled with a physician’s expert report constitutes a good-faith effort to fairly summarize the nursing malpractice claim; and (3) the trial court prematurely dismissed the Olvedas’ claims because the parties’ docket control order modified the deadline for providing expert reports. We affirm the judgment of the trial court.

Background

On November 20, 2001, Frieda Hernandez went to the Hospital. Hernandez was approximately thirty weeks into her pregnancy and had been experiencing severe abdominal pain off and on for four days. Peter V. Kuhl, M.D., Hernandez’s obstetrician, consulted with Sepulveda, a urologist, [681]*681regarding the performance of a surgical procedure. Kuhl, Sepulveda, and Ricardo A. Ramirez, M.D., an anesthesiologist, were present during the procedure. During the course of the procedure, the fetus died, and doctors performed a cesarean section to deliver the fetus. Three days later, Hernandez died due to multiple organ failure caused by HELLP syndrome.2

The Olvedas, Hernandez’s adult children, bought suit against Kuhl, Sepulveda, Ramirez, and the Hospital for negligence relating to the improper care and monitoring of Hernandez’s fetus and the improper care and treatment of Hernandez. Se-pulveda and the Hospital moved to dismiss, arguing that the expert reports filed by the Olvedas do not comply with the Act. The trial court granted the motions and severed the claims against Sepulveda and the Hospital from the remainder of the suit. The Olvedas timely appealed.

The Olvedas have filed a motion to vacate the portion of the judgment and dismiss the portion of the appeal relating to the Hospital. We grant the Olvedas’ motion. Accordingly, the only issue before us is the trial court’s dismissal of the Olvedas’ claims against Sepulveda.

STANDARD OF REVIEW

We review a trial court’s decision to dismiss a claim under section 13.01(e) of the Act under an abuse of discretion standard. Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, without reference to guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). When reviewing matters committed to a trial court’s sound discretion, a court of appeals may not substitute its own judgment for that of the trial court’s. Id.

Expert Reports under 4590i

Article 4590i of the Act requires a medical malpractice plaintiff to furnish each defendant physician or health care provider with one or more expert reports no later than the 180th day after the lawsuit is filed. Tex.Rev.Civ. Stat. ANN. art. 4590i, § 13.01(d) (Vernon Supp.2003). The written report must provide a fair summary of the expert’s opinions regarding the applicable standard of care, the breach of that standard by the physician or health care provider, and the causal relationship between the breach and the injury. See id. at § 13.01(r)(6). If the plaintiff fails to furnish a suitable expert report to a medical malpractice defendant within the 180-day time period, upon the fifing of a motion challenging the existence or adequacy of such a report, the statute directs the trial court to enter an order dismissing the lawsuit. See id. at § 13.01(e)(3).

Additionally, the party offering the expert’s testimony bears the burden of proving that the witness is qualified under Texas Rule of Evidence 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). The rule requires that experts be qualified “by knowledge, skill, experience, training, or education,” and that their testimony “assist the trier of fact” regarding the specific issue before the court. Id. at 153; see also Tex.R. Evid. 702.

Here, the Olvedas offered the expert opinion of Maya S. Suresh, M.D., an obstetric anesthesiologist. According to Sur-esh, Hernandez received substandard medical care from Sepulveda, a urologist. Specifically, Suresh states:

[682]*682[T]here was no evidence of documentation of history and physical examination, assessment^] or plan of action by Dr. Sepulveda. A reasonable expectation of any physician/surgeon who is planning a nonobstetrie operative procedure on a parturient in the third trimester is to evaluate, assess[,] and document a history [and] physical examination [and to] rationalize the plan of action. Further, it is the responsibility of all physicians involved in the intraoperative care of the parturient to ensure both maternal and fetal well[-]being during the entire [in-traoperative] procedure.
... Dr. Sepulveda’s lack of documentation, failure to obtain laboratory work[,] i.e., CBC (especially with the history of blood in the urine), and ignoring fetal well[-]being ... demonstrates substandard medical care. Failure to make the initial critical diagnosis of preeclampsia and HELLP impacted all subsequent management. Further failure on the part of Dr. Kuhl, Dr. Ramirez, and Dr. Sepulveda to appropriately monitor the uterine contractions and the FHR resulted in adverse fetal outcome....
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In summary, it is my opinion that the physicians involved in Ms. Frieda Hernandez’s care on November 21st, i.e., Dr. Kuhl, Dr. Ramirez, and Dr. Sepulve-da, failed to follow the standard of care in the management of both Ms. Frieda Hernandez and the baby....
Had the obstetrician, anesthesiologist, and urologist followed the standard of care — i.e., obtained appropriate laboratory tests [and] evaluated and assessed the patient in a timely manner, it would have resulted in making the correct diagnosis of preeclampsia/HELLP syn-dromef, and] the plan of action and management would have been the standard of care that is routinely rendered to a preeclampsia patient, which would have resulted in a positive outcome and survival of both mother and baby.

The Olvedas argue that this report is sufficient. According to the Olvedas, the report demonstrates that Suresh is amply qualified to testify because the urologist in this case deviated from a standard of care common to all physicians. It is not enough, however, for Suresh to state that all physicians should be able to diagnose preeclampsia. Under Broders,

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Bluebook (online)
141 S.W.3d 679, 2004 WL 1159319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olveda-v-sepulveda-texapp-2004.