Steward Medical Group D/B/A Permian Premier Health Services and John Lee v. Michelle Armstrong, Individually and as Representative of the Estate of Bobby Fosha, and Peggy Fosha

• Court: Court of Appeals of Texas
• Decided: April 22, 2021
• Docket: 09-20-00243-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00243-CV __________________

STEWARD MEDICAL GROUP D/B/A PERMIAN PREMIER HEALTH SERVICES AND JOHN LEE, Appellants

V.

MICHELLE ARMSTRONG, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BOBBY FOSHA, AND PEGGY FOSHA, Appellees __________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-205,748 __________________________________________________________________

MEMORANDUM OPINION

The Texas Medical Liability Act requires trial courts to dismiss lawsuits

alleging a healthcare liability claim unless the plaintiffs, shortly after they file the

suit, serve the defendants with a report that is “an objective good faith effort to

comply” with the expert-report requirements in Chapter 74 of the Act. 1 In this

1 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l). 1 interlocutory appeal, we must decide whether the trial court abused its discretion by

denying the objections the defendants lodged to the plaintiffs’ Chapter 74 reports

claiming the plaintiffs’ reports did not represent a good faith effort to provide the

reports required by the Act. We conclude that since no abuse of discretion occurred,

the trial court’s order denying the defendants’ motion to dismiss should be affirmed.

Background

Michelle Armstrong (as the executor of the Estate of Bobby Fosha) and Peggy

Fosha (Bobby Fosha’s widow) sued Dr. John Lee and Steward Medical Group under

the Texas Wrongful Death and Survival Act and alleged they negligently caused

Bobby Fosha’s death. 2 According to the Plaintiffs’ Original Petition, Bobby died

from an adverse side reaction to Celexa, an antidepressant prescribed by Dr. Lee

during an office visit on October 23, 2018. In their suit, the plaintiffs alleged that Dr.

Lee failed to warn Bobby about the increased risk of suicide they claimed is

associated with antidepressants like Celexa. They also alleged that several days after

Bobby started taking the medication, Dr. Lee learned from one of Bobby’s family

members that Bobby was confused after starting the Celexa. According to the motion

2 See id. § 71.002(b) (under the Texas Wrongful Death Statute, a person is liable “for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default”); id. § 71.021(a) (under the Texas Survival Act, a “cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person”). 2 to dismiss and the plaintiffs’ response, Celexa comes with warnings, including one

stating: “Patients of all ages who are started on antidepressant therapy should be

monitored appropriately and observed closely for clinical worsening, suicidality, or

unusual changes in behavior.” In the lawsuit, the plaintiffs alleged Dr. Lee

negligently

• failed to prescribe Bobby an appropriate starting dose of Celexa and instead, gave him four times the recommended starting dose under FDA dosing guidelines,

• failed to assess and account for Bobby’s past medical history in prescribing a treatment plan that involved Celexa,

• failed to properly screen Bobby for depression and assess his risk of suicide before prescribing Celexa,

• failed to warn Bobby about the increased risk of suicide associated with Celexa during the office visit and after learning several days later from one of Bobby’s family members that he seemed confused,

• failed to closely monitor Bobby’s Celexa at a reduced dose after being told by a member of Bobby’s family that Bobby was suffering from symptoms Dr. Lee should have recognized as associated with “Celexa- induced delirium[,]” and

• failed to discontinue Bobby’s Celexa and instead instructed Bobby’s family to have Bobby take Celexa at a reduced dose after Dr. Lee learned Bobby appeared manic and confused after he started taking Celexa.

The plaintiffs also alleged the above acts and omissions proximately caused Bobby’s

death.

3 Shortly after filing suit, the plaintiffs served Dr. Lee and Steward Medical

with two reports, signed by doctors, to meet the requirements of Chapter 74. One

report, written by Dr. Michael Dominguez, reflects that he is a board-certified family

physician with experience practicing in the field of family medicine, the same area

of medicine as Dr. Lee. The other report, signed by Dr. Thomas Kosten, reflects that

he is a board-certified psychiatrist and neurologist who has published over 750

papers and books in his field as a psychiatrist, an area that includes the diagnosis and

treatment of anxiety disorders, the risk of suicide associated with such disorders, and

treating these patients who have these disorders with medications like Celexa.

In Dominguez’s report, he criticized Dr. Lee for failing to obtain a complete

medical history after seeing Bobby in his office on October 23, failing to use

screening tools that he claims are required to diagnose and document the severity of

a patient’s anxiety before prescribing an antidepressant, prescribing Celexa at a

higher dose than the one the FDA recommends for patients as old as Bobby, and

failing to instruct Bobby’s daughter to take Bobby to an emergency room after

learning that Bobby had suffered an adverse reaction after he started the Celexa at

the dosage Dr. Lee prescribed. According to Dr. Dominguez, had Dr. Lee not

negligently prescribed the medication at too high a dose and had he monitored

Bobby based on the standard that applies to starting patients on Celexa, Bobby “more

4 likely than not and to a reasonable degree of medical probability” would not have

shot himself and died.

Dr. Kosten’s report also criticizes Dr. Lee for (1) giving Bobby a prescription

for Celexa at a strength higher than the FDA-recommended starting dose; (2) failing

to review Bobby’s medical records to assess his risks of taking Celexa given

Bobby’s family history, which includes a history showing that Bobby’s father

committed suicide; (3) failing to screen Bobby properly to evaluate the severity of

Bobby’s depression; (4) failing to warn Bobby about the adverse side-effects of

Celexa as related to the medication’s increased risk of suicide; and (5) failing to

advise Bobby on October 25 to discontinue the Celexa after Dr. Lee learned from

Bobby’s daughter that Bobby appeared to be confused and anxious after he started

taking Celexa. As to causation, Dr. Kosten’s report states the above acts and

omissions breached the standard of care that applied to treating patients like Bobby.

The report concludes the violations he identified in “the standards of care most likely

caused [Bobby’s] prescribed overdose of Celexa [and] his suicide . . . within a

reasonable degree of medical probability.”

In October 2020, the defendants moved to dismiss the plaintiffs’ suit. In their

joint motion, they argued that Dr. Dominguez’s and Dr. Kosten’s reports “are

woefully deficient” because they do not sufficiently explain how Dr. Lee’s alleged

acts and omissions caused Bobby’s death. The defendants also argued the two

5 reports of the plaintiffs’ experts did not link the experts’ respective conclusions to

the actual facts relevant to Bobby’s case when compared with what the defendants

assert is Bobby’s actual history based on the medical records that documents the

treatment he received during several months before he died. When the defendants

moved to dismiss the suit, they also suggested that Dr. Kosten’s report misrepresents

the results of Bobby’s autopsy by stating that Bobby shot himself in the mouth rather

than under his chin, as stated in the report from Bobby’s autopsy. The defendants

conclude that these discrepancies required the trial court to find the plaintiffs failed

to serve them with good-faith reports that represent a fair summary explaining what

Dr. Lee did or failed to do and how his alleged acts and omissions caused Bobby’s

death.3

After considering the defendants’ motion, together with the plaintiffs’

response and the defendants’ reply, the trial court denied the defendants’ joint

motion to dismiss. This interlocutory appeal followed. 4

3 The only medical record the defendants attached to their motion to dismiss and reply were a copy of the autopsy report, signed by Dr. John Ralston in January 2019. Other than the autopsy report, the defendants failed to provide the trial court with any of the other medical records they referred to in their pleadings. 4 Id. § 51.014(a)(9) (authorizing interlocutory appeals form rulings granting or denying a party’s objection to Chapter 74 reports). 6 Standard of Review

We discuss the standard of review that applies in light of the defendants’

arguments claiming the plaintiffs’ Chapter 74 reports do not accurately and fairly

summarize the information in the medical records the experts reviewed when

forming their respective opinions. First, the defendants argue the trial court abused

its discretion when it refused to agree with them that the expert reports from Dr.

Dominguez and Dr. Kosten did not constitute the good-faith efforts that apply to

compliant reports under Chapter 74.5 Second, Dr. Lee and Steward Medical argue

that Dr. Dominguez’s and Dr. Kosten’s reports fail to adequately explain how Dr.

Lee’s negligent acts and omissions caused Bobby’s death.

Under Chapter 74, “[a]n expert report is sufficient . . . if it ‘provides a fair

summary of the expert’s opinion . . . regarding the applicable standards of care, the

manner in which the care rendered . . . failed to meet the standards, and the causal

relationship between the failure and the injury.’” 6 A report represents 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.’”7 We review rulings by trial courts that rule on objections to Chapter 74

5 Id. § 74.351(l). 6 Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6)). 7 Id. (quoting Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018)). 7 reports for abuse of discretion. 8 Under Chapter 74, an expert report “need not

marshal all the plaintiff’s proof,” but it must do more than a bare conclusion stating

the defendant breached the applicable standard of care that applied to the patient and

that the breach caused the patient’s injury.9 When deciding if the trial court abused

its discretion, the question is “not whether, in the opinion of the reviewing court, the

facts present an appropriate case for the trial court’s action.” 10 Instead, the question

is “whether the court acted without reference to any guiding rules and principles”

that apply to its ruling. 11

When evaluating challenges to Chapter 74 reports, “[t]he trial court should

look no further than the report itself, because all the information relevant to the

inquiry is contained within the document’s four corners.”12 On appeal, we examine

the Chapter 74 reports as a whole. 13 That is, when the record in the appeal includes

more than one Chapter 74 report, the reports are read together to decide whether the

trial court abused its discretion when ruling on a defendant’s motion to dismiss.14 To

8 See Abshire, 563 S.W.3d at 223; Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). 9 Palacios, 46 S.W.3d at 878-79. 10 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985); see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). 11 Id. 12 Wright, 79 S.W.3d at 52. 13 See Baty, 543 S.W.3d at 694. 14 Abshire, 563 S.W.3d at 223. 8 be sure, (1) if a party argued in the trial court and argues in the appeal the Chapter

74 report misstates the facts in medical records the expert relied upon when writing

the report, and (2) the record shows the trial court reviewed those records in ruling

on a motion to dismiss, the appellate court may look to the same records the trial

court had before it in deciding the motion to resolve an argument in the appeal that

claims the trial court abused its discretion by finding the reports represented good-

faith efforts to comply with Chapter 74. 15

As to causation, Chapter 74 reports, when read together, must explain how the

plaintiff’s intend to prove the defendant’s negligence caused the patient’s injury.16

That said, “[n]o particular words or formality are required” to explain how the

healthcare provider’s negligence caused the patient’s injury, but the report must

contain more than a conclusory statement explaining the expert’s theory of causation

to comply with the good-faith-report requirements of Chapter 74. 17 Nonetheless, to

be adequate under Chapter 74, an expert’s report need not meet the evidentiary

15 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(5)-(6); Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934 (Tex. App.—Beaumont 2010, no pet.); Baptist Hospitals of Se. Tex. v. Carter, No. 09-08-067 CV, 2008 Tex. App. LEXIS 2917109, at *3 n.4 (Tex. App.—Beaumont July 31, 2008, no pet.) (mem. op.). 16 Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459- 60 (Tex. 2017). 17 Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). 9 requirements needed to make an expert’s opinion relevant and admissible in a

summary judgment proceeding or a trial. 18

Analysis

We turn first to Dr. Lee’s and Steward Medical’s arguments that Dr. Kosten’s

report is not a good-faith report because his opinion, they say, hinged on his view

that Bobby killed himself after placing the gun in his mouth. To be fair, Dr. Ralston’s

autopsy report does show that Dr. Kosten apparently failed to appreciate the fact that

the autopsy report shows the bullet that entered Bobby’s head entered his body from

“[b]eneath the chin[.]” And nothing in the autopsy report suggests that Bobby placed

the gun in his mouth. But even if Dr. Kosten’s report is inaccurate about the exact

point on Bobby’s body that he shot himself, the report still shows that Dr. Ralston

concluded the manner of Bobby’s death was “suicide.”

Dr. Kosten’s report also explains why he thinks Bobby committed suicide.

The report states “[t]he most likely cause of [Bobby’s] suicide was the loss of frontal

brain control over an impulsive action” after Bobby took Celexa. Thus, both the

autopsy report and Dr. Kosten’s report are consistent as to the manner of Bobby’s

death—suicide. And here, the question is whether the trial court abused its discretion

by finding Dr. Kosten’s report represented a good-faith effort to comply with

18 Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 516 (Tex. 2017) (per curiam). 10 Chapter 74. As to that question, we think the trial court could have viewed the

manner of death, suicide, as the crucial issue and viewed the discrepancy that exists

in the reports over where the bullet entered Bobby’s body as immaterial to Dr.

Kosten’s ultimate conclusion Bobby’s lack of ability to control his impulses led him

to take his own life based on the Celexa prescription he was given by Dr. Lee. For

that reason, the trial court could reasonably reject the defendants’ argument claiming

that Dr. Kosten’s report fails to include information that is sufficient to (1) inform

them of the conduct the plaintiffs’ petition questioned and (2) demonstrate why the

plaintiffs’ claims have merit. 19

The defendants also claim there are other inconsistencies between the facts in

Dr. Kosten’s and Dr. Dominguez’s reports describing Bobby’s medical history and

the facts the defendants found in Bobby’s medical records. But except for the

autopsy report, none of the other records the defendants pointed to in their motion

were filed as exhibits to their motion. For that reason, Bobby’s other records are

outside the scope of review that applies to our review of the trial court’s ruling that

the defendants elected to appeal. Simply put, these alleged inconsistencies between

19 See Palacios, 46 S.W.3d at 879. At this early stage of the proceedings, we note the question is not whether the plaintiffs will end up prevailing on their claims at trial. 11 the reports of the plaintiffs’ experts and the information they say is in Bobby’s

medical records were not properly preserved for our review in the appeal.20

Next, we address whether, when reading the two reports together, the trial

court could reasonably find the reports sufficient to explain how Dr. Lee’s alleged

acts and omissions violated the standards of care that applied to Bobby and caused

his death. In our opinion, the trial court could reasonably find the reports of both

experts informed the defendants of the conduct the plaintiffs questioned. Both

reports describe the standard of care that applies to treating patients of Bobby’s age

with an antidepressant like Celexa and state that Dr. Lee breached the standard of

care in starting Bobby at a higher than recommended dose. Both reports trace how

Dr. Lee’s alleged errors led to the adverse side effects that Dr. Dominguez and Dr.

Lee opine prevented Bobby from controlling his urge to commit suicide, which they

say is a known risk in patients prescribed antidepressants. In other words, both

reports explain what Dr. Lee did, what he failed to do, and what the plaintiffs’

experts claim he should have done to treat Bobby for anxiety. Read together, both

reports also tie Dr. Lee’s alleged negligence to Bobby’s death.

The trial court could also reasonably reject the defendants’ argument claiming

the reports by the plaintiffs’ experts are overly conclusory on the issue of causation.

As to causation, Dr. Dominguez’s report contains a paragraph stating:

20 Tex. R. App. P. 33.1(a)(2). 12 A reasonable and prudent physician would have known that the maximum dose for a patient Mr. Fosha’s age was 20 mg per day and would not have prescribed a 40 mg dose . . . . Dr. Lee prescribed citalopram at a dose higher than recommended for his age and higher than recommended for someone who was essentially treatment naive. He also failed to refer Mr. Fosha for immediate care when called by Mrs. Armstrong about her father’s condition. Had Dr. Lee not prescribed Mr. Fosha an inappropriate dose of citalopram, it is more likely than not and to a reasonable degree of medical probability that Mr. Fosha would not have experienced the adverse effects of delirium and shot himself resulting in his death. Further, if Dr. Lee had responded to the concerns of Mr. Fosha’s family appropriately by referring him for psychiatric evaluation when they were reported, it is also more likely than not and to a reasonable degree of medical probability that Mr. Fosha would not have had the opportunity to shoot himself resulting in his death.21

Likewise, the trial court could have reasonably rejected the defendants’ arguments

that Dr. Kosten’s report failed to inform them of the conduct the plaintiffs questioned

or to explain the plaintiffs’ theory of causation. Dr. Kosten’s report summarizes his

findings as to causation as follows:

Dr. Lee committed two major negligent behaviors leading to Mr. Fosha’s suicide from what was clearly a serotonin syndrome and delirium induced by the high dose of Celexa. Most importantly among the negligent behaviors and the proximal cause of Mr. Fosha’s death was restarting Celexa 40mg after discontinuing this medication about eight months previously . . . Furthermore, when after a single dose of 40 mg clear signs of a serotonin syndrome were evident to even layman, the Celexa should have been immediately stopped. Mr. Fosha then should have been sent to the emergency department . . . The most likely cause of [Mr. Fosha’s] suicide was the loss of frontal brain control over

21 In his report, Dr. Dominguez identified the drug that Bobby took as “citalopram.” Citalopram is the generic name for Celexa. WebMD, https://www. webmd.com/drugs/2/drug-1701/citalopram-oral/details (last visited April 12, 2021). 13 an impulsive action that had otherwise been controlled before this severe serotonin syndrome occurred.

The defendants also assert the reports focus on the conduct of Dr. Lee, not

Steward Medical. But the plaintiffs’ suit alleges that Dr. Lee is an employee of

Steward Medical and that Steward Medical is legally responsible for Dr. Lee’s acts

as his employer. When healthcare liability claims include claims alleging a theory

of vicarious liability against the physician’s employer, “a report that adequately

implicates the actions of that party’s agents or employees is sufficient.”22 For this

reason, the trial court could also reasonably find the reports sufficient as to Steward

Medical.

Conclusion

We hold the defendants’ issues lack merit. For that reason, the trial court’s

order denying Dr. Lee’s and Steward Medical’s joint motion to dismiss is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on January 5, 2021 Opinion Delivered April 22, 2021

Before Kreger, Horton, and Johnson, JJ.

22 Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008); see Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 587 (Tex. App.— Beaumont 2011, no pet.). 14