Sheila Bailey v. Amaya Clinic, Inc and Dr. David W. Powell

402 S.W.3d 355, 2013 WL 2360121
CourtCourt of Appeals of Texas
DecidedMay 30, 2013
Docket14-12-00333-CV, 14-12-00335-CV, 14-12-00354-CV
StatusPublished
Cited by20 cases

This text of 402 S.W.3d 355 (Sheila Bailey v. Amaya Clinic, Inc and Dr. David W. Powell) 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
Sheila Bailey v. Amaya Clinic, Inc and Dr. David W. Powell, 402 S.W.3d 355, 2013 WL 2360121 (Tex. Ct. App. 2013).

Opinions

MAJORITY OPINION

MARTHA HILL JAMISON, Justice.

This is a health care liability case governed by the Texas Medical Liability Act.1 Each party has separately appealed from the trial court’s order sustaining in part and overruling in part Amaya Clinic, Inc. and Dr. David W. Powell’s objections to three expert reports served by Sheila Bailey. We affirm.

Background

Powell, a dermatologist, treated Bailey at Amaya Clinic for weight loss; this treatment included a Zerona Laser liposuction procedure.2 As alleged, after Bailey received the laser treatment, an employee at Amaya Clinic directed Bailey to stand on a vibrating exercise machine, the Vibratrim VT300. After Bailey mounted the machine, the employee allegedly started it, but then asked Bailey to step down and straddle the base of the machine. As Bailey attempted to step down, she allegedly fell, fracturing one ankle and spraining the other.3

Bailey filed suit against Powell and Amaya Clinic on November 10, 2010, bringing claims for negligence and gross negligence. Bailey served Powell and Amaya Clinic with the expert report of Dr. William Francis, Jr. on February 2, 2011. Powell and Amaya Clinic objected to Francis’s report and moved to dismiss the case. See Tex. Civ. Prac. & Rem.Code § 74.351(b). The trial court sustained the objections and granted Bailey 30 days to amend the report. See id. § 74.351(c). Bailey served Powell and Amaya Clinic with Francis’s amended expert report and [360]*360the expert reports of Drs. Robert L. Bell and Seth J. Orlow on May 10, 2011.

Powell and Amaya Clinic again objected and moved to dismiss the case. They contended the reports were inadequate because the experts (1) did not establish their qualifications to opine regarding the standards of care for a dermatologist like Powell or a clinic like Amaya Clinic or for using the Vibratrim machine or the Zerona Lipo Laser machine; (2) failed to articulate a fair summary of the experts’ opinions regarding the applicable standards of care, the manner in which those standards were breached by Powell and Amaya Clinic, and the causal relationship between any breach and the injury and damages claimed; and (3) attempted to apply a single standard of care to Powell and Ama-ya Clinic. The trial court overruled the objections in part but sustained the objections to Orlow’s report in toto, to “Bell’s opinions that ... [’jPowell’s actions in requiring ... Bailey to use the Vibratrim machine caused and/or contributed to ... Bailey’s injuries,’” and to “Francis’ opinions ... regarding the effectiveness of the Vibratrim machine and that ... [’jPowell and Amaya Clinic used a machine that is not designed for commercial use.’ ”4 The trial court did not dismiss the case. The parties agree that the effect of the order was a denial of the motion to dismiss.5

[361]*361Discussion

Powell and Amaya Clinic bring four issues, asserting the trial court erred in denying the motion to dismiss while acknowledging deficiencies in the expert reports and because Francis and Bell (1) did not articulate a fair summary of their opinions regarding the applicable standards of care and the causal relationship between any breach of the standards of care and the injury and damages claimed; (2) did not establish their qualifications to opine regarding the standards of care applicable to Powell or Amaya Clinic; and (3) applied a single standard of care to Powell and Amaya Clinic. In four issues, Bailey argues Francis, Bell, and Orlow are qualified experts and the expert reports represent a good faith effort to comply with the statutory requirements for an expert report.

The Act entitles a defendant to dismissal of a health care liability claim if he is not served, within 120 days of the date suit was filed, with an expert report showing that the claim has merit. Tex. Civ. Prac. & Rem.Code § 74.351(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.2011). The trial court’s refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem.Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. The trial court’s granting of relief sought under a motion challenging the adequacy of an expert report also may be immediately appealed.6 Tex. Civ. Prac. & Rem.Code § 51.014(a)(10). We review a trial court’s denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex.2001); Group v. Vicenta, 164 S.W.3d 724, 727 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Similarly, we review a trial court’s determination of whether a physician is qualified to opine in a health care liability case under an abuse of discretion standard. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex.2006) (per curiam); Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] 2007, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Larson, 197 S.W.3d at 304-05; see also Jelinek, 328 S.W.3d at 539.

The Act specifies requirements for an adequate report and mandates “an objective good faith effort to comply” with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(0, (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem.Code § 74.351(c); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 878.

An expert must establish that he is qualified to provide an acceptable report. Tex. Civ. Prac. & Rem.Code § 74.351(r)(5)(B). Qualifications must appear in the expert report and cannot be inferred. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Additionally, an expert report must provide a fair summary of the expert’s opinions regarding (1) [362]*362the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem.Code § 74.351(r)(6); Palacios, 46 S.W.3d at 879. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Patel v. Williams, 237 S.W.3d 901

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Cite This Page — Counsel Stack

Bluebook (online)
402 S.W.3d 355, 2013 WL 2360121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheila-bailey-v-amaya-clinic-inc-and-dr-david-w-powell-texapp-2013.