Valley Regional Medical Center, Inc. v. Lidia Gonzalez as Next of Friend of Santiago Guerrero, a Minor Child

• Court: Court of Appeals of Texas
• Decided: May 23, 2013
• Docket: 13-12-00572-CV
• Status: Published

Opinion

NUMBER 13-12-00572-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

VALLEY REGIONAL MEDICAL CENTER, INC., Appellant,

v.

LIDIA GONZALEZ AS NEXT FRIEND OF SANTIAGO GUERRERO, A MINOR CHILD, Appellee.

On appeal from the 444th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Valdez

By two issues, appellant, Valley Regional Medical Center, Inc. (“Valley”),

challenges the denial of its motion to dismiss appellee Lidia Gonzalez’s medical liability

claim. In its first issue, Valley contends that the expert reports introduced by Gonzalez

failed to provide an adequate explanation of how Valley’s conduct caused the injuries alleged in appellee’s complaint. In its second, related, issue, Valley asserts that the

expert reports were required and failed to provide a statement on the foreseeability of

the injuries alleged in appellee’s complaint. We affirm.

I. BACKGROUND

A minor child was born prematurely on May 8, 2008 at Valley. The child’s mother

had been diagnosed with hypertension. The child was diagnosed with hypoglycemia

after birth. The staff at Valley ordered that he receive an IV bolus of 10% dextrose in

water.

Gonzalez contends that during the first night of the child’s life, Valley’s staff

pumped sugar water into his veins which caused his blood sugar to increase to 2735

mg/dl, almost thirty times the normal level. The child began suffering seizures. A brain

topography revealed that the child was suffering from hemorrhages in his brain. Later

that night, it was discovered that the child suffered from brain damage. Further tests,

performed later that week and in the following months, revealed even greater brain

damage. Gonzalez sued the hospital under Texas Civil Practice and Remedies Code

section 74.351(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2008).

Gonzalez filed her original petition as next of friend of the child on July 15, 2011,

asserting a health care liability claim against Valley. To fulfill her requirement under

section 74.351, Gonzalez filed three expert reports by Jerry Tomasovic, M.D., Robert

Zimmerman, M.D., and Diane Ginsberg, M.S., R.Ph., FASHP. See Id. Valley filed

objections to Gonzalez’s expert reports and motion to dismiss arguing, in relevant part,

that they did not explain the “causal relationship between any breach of the standard of

care and [the child’s] injuries.” After a hearing held on April 11, 2012, the trial court

2 issued an order granting Valley’s objections but permitting Gonzalez thirty days to

produce reports that complied with the statute. See id. § 74.351(c) (providing that if

“elements of the report are found deficient, the court may grant one thirty-day extension

to the claimant in order to cure the deficiency”). Gonzalez submitted a supplemental

report of Dr. Tomasovic and an amended report replacing Ginsburg’s previous report.

Subsequently, Valley filed its second motion to dismiss and objections to appellee’s

expert reports. On August 29, 2012, the court held a hearing on the motion to dismiss,

after which it issued an order overruling Valley’s objections to the expert reports and

denying its motion to dismiss. Valley now files this interlocutory appeal. See id. at §

51.014(a)(9) (West 2011). Valley challenges the expert reports on the basis that they

did not, individually or collectively, satisfy the requirements of section 74.351. Gonzalez

counters that Valley failed to preserve objection to Ginsberg’s report and that the trial

court did not abuse its discretion in finding that, under the requirements of the statute,

Dr. Tomasovic’s report adequately explained causation.

In relevant part, Dr. Tomasovic’s original report stated the following:

I have received a neuroradiologic report from Dr. Robert A. Zimmerman from November 2009 . . . . I concur with Dr. Zimmerman’s opinion that these findings were consistent with neuroimaging sequlae from hyperglycemia and hypernatromia . . . . Given the past history of hypersomular/hyperglycemic exposure over a prolonged time, [the child] remains at a significant risk for developing a seizure disorder. It is reasonable that the second set of seizure activity occurring beyond the age for onset of febrile seizures and the absence of family history for such disorder places the seizure event to fall within a reasonable medical probability as a sequelae from the hyperglycemia and hyperosmolar exposure during the [indecipherable] time frame. The condition of the infant at birth with subsequent presentation of intraventricular hemorrhage documented in the medical records supported by Dr. Zimmerman’s review suggests that this complication is a probable sequelae from the inappropriate administration of a hyperosmolar/hyperglycemic solution in the first days of life.

3 In his supplemental report Dr. Tomasovic stated, in relevant part:

The pathogenisis for neurologic sequelae to include seizures and encephalopathy is felt to represent an increase in tissue lactic acid as a consequence of the iatrogenic administration of hyperosmolar fluids. In addition, the pattern of changes confirmed by Dr. Robert A. Zimmerman of abnormal signal intensity in the posterior cerebral region has been documented previously from alterations in glucose levels. This pattern is seen in both hypoglycemia and hyperglycemia which implicates a distinctive regional vulnerability to that area to increase in tissue lactic acid. II. PRESERVATION

As an initial matter, Gonzalez argues that Valley failed to preserve error for Diane

Ginsburg’s expert report. She contends that, as a result, Ginsburg’s report satisfies all

expert report requirements under section 74.351. However, footnote one of Valley’s

second motion to dismiss and objections to Gonzalez’s expert reports1 states: “Ms.

Ginsb[u]rg’s initial and supplemental reports offer no opinion on proximate cause. Even

if they did, they would be inadequate because as a pharmacist, Ms. Ginsburg is

unqualified to opine on proximate cause in a healthcare liability claim.” (Citations

omitted). We conclude that Valley’s written objections to Ginsburg’s report preserved

error. See id. 74.351(b) (requiring a health care provider to raise any objections to

expert reports within 21 days after they are served, or any complaints are waived); see

also Renaissance Surgical Ctrs.—South Tex., L.L.P. v. Jimenez, No. 13-12-00101-CV,

2008 Tex. App. LEXIS 6857, **8–9 (Tex. App.—Corpus Christi, Aug. 28, 2008, no pet.)

(mem. op.) (finding that objections in a motion to dismiss preserve error on appeal of

the adequacy of expert reports). Accordingly, we must reach the merits of this appeal

1 We note that this motion was titled “Defendant Valley Regional Medical Center’s Objections to Plaintiff’s Supplemental Expert Report of Jerry Tomasovic, MD., and Motion to Dismiss.” Despite the title of the motion, Valley objected to all three expert reports presented by Gonzalez in the motion.

4 and consider whether the expert report of Dr. Tomasovic provided a fair summary of the

causal relationship between Valley’s conduct and the alleged injury.

III. FORESEEABILITY

We address Valley’s second issue first because it establishes the standard for

causation which must be explained in the reports; thus, our analysis of the first issue is

dependent on our resolution of the second. Valley argues that, in the present case, the

expert reports’ failure to include a statement on foreseeability renders them inadequate

under the statute. Valley implores us to reconsider our decision in Rio Grande Regional

Hospital v. Ayala, No. 13-11-00686-CV, 2012 Tex. App. LEXIS 7175 (Tex. App.—

Corpus Christi Aug. 24 2012, pet. filed) (mem. op.) in which we found that an expert

report did not have to explain how the breach of standards of care proximately caused

the alleged injury and thus did not have to provide a statement on foreseeability. See

Kingston v. Helm, 82 S.W.3d 755, 760 (Tex. App.—Corpus Christi 2002, pet. denied)

(reasoning that “although considerations of stare decisis normally counsel against

overruling an opinion of this court after such a short time, a clearly erroneous decision

should be corrected”).

Section 74.351 of the Texas Civil Practice and Remedies Code defines an expert

report as “a written report by an expert that provides a fair summary of 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (emphasis added).

5 In Ayala we agreed with the Dallas Court of Appeals in determining that

“[a]ppellants cite no authority and we have found none to support their contention that

an expert report must opine on whether the specific injuries sustained by the claimant

could have been foreseen by the healthcare defendants.” Ayala, 2012 Tex. App. LEXIS

7175, at *51; See Adeyemi v. Guerrero, 329 S.W.3d 241, 246 (Tex. App.—Dallas 2010,

no pet.) ("Finally, [defendant] argues that [plaintiff's] expert report is insufficient because

it never addresses foreseeability . . . . [Defendant] cites no authority, however, and we

have found none, to support her contention that an expert report must opine on whether

the specific injuries sustained by the claimant could have been foreseen by the

defendant physician.") (internal citations omitted). Valley has cited no authority

indicating that our previous opinion was clearly erroneous, and we decline to find so.

See Kingston, 82 S.W.3d at 760.

Valley claims that our decision in Ayala does not comply with In re Jorden, which

requires us to interpret section 74.351 in accordance with its plain language. See 249

S.W.3d 416, 420–22 (Tex. 2008). However, in Ayala, we concluded that requiring

foreseeability in an expert report imposes a new requirement not contemplated by the

statute. Ayala, 2012 Tex. App. LEXIS 7175, at *51. Valley then cites cases

demonstrating that plaintiffs must show proximate cause at trial to succeed in a health

care liability claim. See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d

851, 860 (Tex. 2009); Grider v. Mike Obrien, P.C., 260 S.W.3d 49, 57 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied). However, Valley fails to explain how the

requirements for proving causation at trial affect the plain meaning of “causal

relationship” in the statute. Instead, we will continue to apply our holding in Ayala that

6 an expert report need not contain a statement on foreseeability to be adequate for the

claim to survive dismissal. See Ayala, 2012 Tex. App. LEXIS 7175, at *51. This

holding is consistent with both the plain language of the statute and its intent to limit

frivolous claims.2 There is no mention in the statute of foreseeability or proximate

cause, and Texas law does not impose a requirement to establish the elements that

must be proved at trial at this stage in the proceedings. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879

(Tex. 2001) (reasoning that, to avoid dismissal, a plaintiff need not present evidence in

the report as if it were actually litigating the merits).

Therefore, we decline to depart from stare decisis and the precedent we

established in Ayala, and find that the trial court did not abuse its discretion by denying

Valley’s motion to dismiss for the expert reports’ failure to provide a statement on

foreseeability. See Ayala, 2012 Tex. App. LEXIS 7175, at *51; see also Jelinek v.

Casas, 328 S.W.3d 526, 539 (Tex. 2010) (stating that a trial court’s denial of a motion to

dismiss is reviewed for abuse of discretion); see also Weiner v. Wasson, 900 S.W.2d

316, 320 (Tex. 1995) (reasoning that adhering to precedent fosters efficiency, fairness,

and legitimacy). We overrule Valley’s second issue.

2 Recently, in Certified EMS, Inc. v. Potts, the Supreme Court reasoned that the purpose of the expert report requirement is to limit the

“excessive frequency and severity of . . . claims,” but to “do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis.” (quoting Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847). In accordance with this goal, we have opined that one purpose of the report requirement is to expeditiously weed out claims that have no merit. We have also stated that the purpose of evaluating expert reports is “to deter frivolous claims, not to dispose of claims regardless of their merits.” (quoting Scoresby, 346 S.W.3d at 554; citing Loaisiga, 379 S.W.3d at 258 (recognizing that the expert report “requirements are meant to identify frivolous claims and reduce the expense and time to dispose of any that are filed”); In re Jorden, 249 S.W.3d at 421).

Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

7 IV. ADEQUACY OF EXPERT REPORTS’ EXPLANATION OF CAUSATION

Valley claims that the three expert reports did not, individually or collectively,

satisfy the requirement to provide a fair summary of the causal relationship between the

injury and the breach of the standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351. Specifically, it asserts that Dr. Tomasovic, in his report, which it claims was the

only report explaining the element of causation, merely “opines that the improper

administration of fluid caused Plaintiff’s injuries, including an increased risk of seizure

disorder and cognitive and language impairment. But he never explains how and why

the former resulted in the latter.”3 At oral arguments, the attorney for Valley clarified

that Dr. Tomasovic’s report did not explain how the hospital’s improper administration of

fluid caused lactic acid build-up and how that increase in lactic acid caused the specific

injuries in this case.4

3 In its reply brief, Valley argues that the reports contained gaps in its explanation in the following areas:

i. How hyperglycemia and hypernatremia caused plaintiffs risks of developing a seizure disorder or cognitive language impairment. ii. How and why seizure activity occurring after age 4 and in the absence of family history for the disorder means that the injuries were caused by hyperglycemia and hypersomolar exposure.

iii. The significance of increased lactic acid and how and why this combined with hyposomular exposure and increased lactic acid caused an increased risk of seizures and cognitive and learning impairment.

iv. What a regional vulnerability to lactic acid is, how and why it manifested itself as an injury, and how and why it caused an increased risk of seizure disorders and cognitive and language impairment.

v. The link between abnormal signal intensity being “documented previously” from alterations in glucose levels and his opinion that an increase in glucose levels in this case caused seizure disorders and cognitive and language impairment. 4 Valley also argues that the trial court’s denial of the motion to dismiss is improper because Gonzalez failed to remedy Dr. Zimmerman’s report after Valley’s first objections to the expert reports were filed. However, under section 74.351, Gonzalez may satisfy the requirement by serving any number of different reports from separate experts, which when construed together, are adequate to meet the requirements of the statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i). Valley only objects to the

8 A. Applicable Law

The denial of a motion to dismiss is reviewed for abuse of discretion. Jelinek,

328 S.W.3d at 539. To satisfy the requirement of section 74.351, an expert report must

provide a fair summary of the expert's opinions as of the date of the report regarding:

(1) applicable standards of care; (2) the manner in which the care rendered by the

healthcare provider failed to meet the standard of care; and (3) the causal relationship

between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6).

A report's adequacy does not depend on whether the expert uses any particular

“magical words.” See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). The

report can be informal in that the information in the report does not have to meet the

same requirements as the evidence offered in a summary-judgment proceeding or at

trial. Palacios, 46 S.W.3d at 879.

To avoid dismissal, the report must present an objective good faith effort to

comply with these requirements. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i). A

“good faith effort” in this context simply means a report that does not contain a material

deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409–10 (Tex. 2011). To constitute

a good faith effort, the report must provide enough information to: (1) inform the

defendant of the specific conduct the plaintiff has called into question; and (2) provide a

basis for the trial court to conclude that the claims have merit. Bowie, 79 S.W.3d at 53.

At this stage of the proceedings, a plaintiff is not required to present evidence in

the report as if it were actually litigating the merits. Palacios, 46 S.W.3d at 879. The

expert reports’ cumulative failure to explain causation. Because we find that Dr. Tomasovic’s report is sufficient to explain causation, we find that it is unnecessary to consider the adequacy of Dr. Zimmerman’s report.

9 report need not marshal all of the plaintiff's proof, but it must include the expert's opinion

on each of the three elements: (1) standard of care; (2) breach; and (3) causal

relationship. Bowie, 79 S.W.3d at 53. A report cannot merely state the expert's

conclusions about these elements. Id. “Rather, the expert must explain the basis of his

statements to link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex. 1999). A claimant is not required to satisfy the expert report requirement by

serving a single expert report, but may satisfy the requirement by serving any number of

different reports from separate experts, which when construed together, are adequate to

meet the requirement of providing non-conclusory expert opinions on the elements of

(1) standard of care; (2) breach; and (3) causal relationship. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(i).

To demonstrate to the trial court that the complaint has merit, an expert cannot

simply opine that the breach caused the injury. Jelinek, 328 S.W.3d at 539–40. It thus

follows that an expert's conclusion that "in medical probability" one event caused

another is generally insufficient to satisfy the statute. See City of San Antonio v.

Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v. Arce, 997 S.W.2d 229,

235 (Tex. 1999); Earle, 998 S.W.2d at 890) (reasoning that “[a]n expert's simple ipse

dixit is insufficient to establish a matter”). Instead, the expert must explain, to a

reasonable degree, how and why the breach caused the injury based on the facts

presented. See Jelinek, 328 S.W.3d at 539–40. While, as noted above, no "magical

words" need be used to meet the good-faith requirement, mere invocation of the phrase

“medical probability” is no guarantee that the report will be found adequate. See Bowie,

79 S.W.3d at 53.

10 B. Discussion

Valley cites multiple cases it claims supports its assertion that the type of

explanation offered by Tomasovic in his report is too conclusory to be adequate under

the statute.

In Jelinek, the court found that an expert’s explanation that a hospital’s failure to

provide antibiotics to a patient “within a reasonable medical probability” caused

increased pain and suffering and a prolonged hospital stay did “not give the trial court

any reasonable basis for concluding that the lawsuit has merit” because the statement

provided by the expert was “conclusory on causation.” 328 S.W.3d at 539–40. The

court reasoned that the expert report “offer[ed] no more than a bare assertion that [the

hospital’s] breach resulted in increased pain and suffering and a prolonged hospital

stay. Beyond that statement, the report offers no explanation of how the breach caused

the injury.” Id. at 540. The Jelinek court suggested that the explanation provided by the

report is hardly more than an ipse dixit. Id. at 539–40 (citing Pollock, 284 S.W.3d at 818

(quoting Burrow, 997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (reasoning that “[a]n

expert's simple ipse dixit is insufficient to establish a matter”).

Valley also cites Shanoy v. Jean as a leading case in support of its argument.

Shenoy v. Jean, No. 01-10-01116-CV, 2011 Tex. App. LEXIS 10212, at *7 (Tex. App.—

Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem op.). Notably, this case is from the

Houston court of appeals and is unpublished. In Shanoy, the plaintiff alleged that a

hospital improperly cleared a patient for surgery and that the administration of

anesthesia to a patient with that plaintiff’s specific medical history caused her to

experience respiratory arrest. Id. The Houston court reversed the trial court’s denial of

11 a motion to dismiss the case holding that while the expert report stated that the

administration of anesthesia may have caused respiratory arrest, it did not explain and

did not even “state that [the patient’s] history of heart problems or other conditions

somehow made her more likely to suffer respiratory arrest after premature extubation

than a person without those medical conditions.” Id. at *18. In Shenoy, the alleged

breach was the hospital clearing the patient with a specific medical history for surgery,

and the court held that the report failed to explain how or even state that the patient’s

medical history caused her injury. Id. Notably, while Valley contends that the present

case is factually analogous, the court in Shenoy did not hold that the expert failed to

describe the different biological processes involved in plaintiff’s injury.

Under the circumstances in the present case, we find our recent opinion in the

Ayala case instructive. The appellants in Ayala made a similar claim that an expert

report was merely “conclusory” in its explanation of how a nurse’s conduct caused

oxygen deprivation resulting in severe brain damage. Ayala, 2012 Tex. App. LEXIS

7175, at *47. The report stated that “the injuries . . . were a direct result of the oxygen

deprivation caused by the breaches as set out herein and in [the nurses] expert report.”

The report continued that “the [] nurse and [hospital] had [not] acted reasonably and

prudently as set out in the above standard of care, or as set out in [the nurse’s] report.”

Id. at *51. The doctor concluded that that "if the nurse and [hospital] had acted

reasonably and prudently as set out in the above standard of care, or as set out in [the

nurse’s] report, would not have suffered the cardiopulmonary arrest, ischemic brain

injury, and neurologic impairment.” Id. We found in Ayala that the doctor’s “report

exceed[ed] a good faith effort to establish the element of causation, arguably

12 approaching the type of evidence marshalling that is not required at this stage of the

proceedings.” Id. at *52 (citing Bowie, 79 S.W.3d at 53).

Here, Dr. Tomasovic’s report provided much more than a bare assertion that

Valley’s conduct caused the alleged injury. See Jelinek, 328 S.W.3d at 540. His report

explains how and why Valley’s administration of fluid caused the injuries to a greater

degree than even the report in Ayala, which we found “exceeded a good faith effort to

establish the element of causation.” Ayala, 2012 Tex. App. LEXIS 7175, at *52. While

we agree with Valley’s assertion that expert reports must explain how and why conduct

caused injury, we conclude they need not describe all biological processes involved in

the onset of the injury. See Jelinek, 328 S.W.3d at 540; Palacios, 46 S.W.3d at 879;

Bowie, 79 S.W.3d at 53; see also Shanoy, 2011 Tex. App. LEXIS 10212, at *18. Dr.

Tomasovic, therefore, did not need to detail the way that lactic acid or abnormal signal

intensity allegedly resulting from the hospital’s administration of fluids acted or

progressed within the child’s body to result in seizure disorder and cognitive and

language impairment.

Indeed, Dr. Tomasovic’s report provided an adequate explanation on causation.

He directly stated why the injury occurred, reasoning that the medical reports “suggest[]

that this complication is a probable sequelae from the inappropriate administration of a

hypersomular/hyperglycemic solution in the first days of life.” Therefore, unlike Shanoy,

Dr. Tomasovic specifically linked Valley’s breach to Gonzalez’s injuries. See Shanoy,

2011 Tex. App. LEXIS 10212, at *18. Furthermore, he provided multiple statements

explaining how the alleged injury occurred: “The pathogenesis for neurologic sequelae

to include seizures and encephalopathy is felt to represent an increase in tissue lactic

13 acid as a consequence of the iatrogenic administration of hypersomular fluids.” He also

explained that “in addition, the pattern of changes confirmed by Dr. Robert A.

Zimmerman of abnormal signal intensity in the posterior cerebral region has been

documented previously from alterations in glucose levels.” Dr. Tomasovic even

discussed how the specific facts of the case led him to this conclusion, mentioning the

brain hemorrhaging discovered in Dr. Zimmerman’s report and the child’s medical

history. Given the depth and specificity of Dr. Tomasovic’s report, we find that he

clearly linked the basis of Gonzalez’s lawsuit to the facts in this case and hold that the

trial court did not abuse its discretion in finding that he provided an adequate

explanation of how and why the hospital’s conduct caused the child’s injury. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351. We overrule Valley’s first issue.

V. CONCLUSION

We affirm the trial court’s denial of Valley’s motion to dismiss.

____________________ ROGELIO VALDEZ Chief Justice

Delivered and filed the 23rd day of May, 2013.