ACCEPTED 03-14-00717-CV 3909543 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/27/2015 10:06:49 AM JEFFREY D. KYLE CLERK No. 03-14-00717-CV
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 1/27/2015 10:06:49 AM JEFFREY D. KYLE Clerk
VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC,
Appellants,
vs.
NANCY JO RODRIGUEZ,
Appellee
On Appeal from the 419th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-14-GN-000903 The Honorable Gus J. Strauss, Judge Presiding
BRIEF FOR APPELLEE
L. Todd Kelly Texas Bar No. 24035049 The Carlson Law Firm, P.C. 11606 N. IH-35 Austin, Texas 78753 Tel. 512-346-5688 Fax 512-719-4362 Tkelly@carlsonattorneys.com
Counsel for Nancy Jo Rodriguez
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................................................... 3
ISSUE PRESENTED ................................................................................................. 4
STATEMENT OF FACTS ........................................................................................ 4
SUMMARY OF THE ARGUMENT ........................................................................ 6
ARGUMENT ............................................................................................................. 6
I. The Trial Court Did Not Abuse its Discretion in Denying Defendants’ Motion to Dismiss Based on Dr. Breall’s Report ....................... 8
A. The Trial Court’s Decision was Well Within the Discretion Afforded it by the Texas Legislature ................................... 8
B. The Court Must Look Only at the Facts Provided in the Four Corners of Dr. Breall’s Report ........................................... 9
C. Dr. Breall’s Report Sets Forth a Good-Faith Effort to Opine on Each Element of Plaintiff’s Claims ..................................... 12
II. Even if the Court Determines Dr. Breall’s Report is Deficient, the Court Should Remand so the Trial Court can Consider Granting a 30-day Extension to Cure ............................................................ 16
PRAYER .................................................................................................................. 17
CERTIFICATE OF COMPLIANCE ....................................................................... 18
CERTIFICATE OF SERVICE ................................................................................ 19
2 INDEX OF AUTHORITIES
CASE LAW
Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 737, 878-879 (Tex. 2001) ..................................................7, 9, 10, 11, 13
Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002) ....................8, 9, 10
Hebert v. Hopkins, 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.)....... 8, 9, 10
Hollingsworth v. Springs, 353 S.W.3d 506, 524 (Tex. App.—Dallas 2011, pet. denied) .............................................................................................................. 17
Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) ...................................... 16-17
Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) ....................................... 17
Saudi v. Brieven, 176 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ................................................................................................................. 8
Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) ................................................ 9
Whisenant v. Arnett, 339 S.W.3d 920, 923 (Tex. App.—Dallas 2011, no pet.)...................................................................................................................... 13
RULES AND STATUTES
TEX. CIV. PRAC. REM. CODE § 74.351............................................................7, 15, 16
TEX. R. APP. P. 38.1...................................................................................................8
3 ISSUE PRESENTED
Whether the trial court abused its discretion in determining that the expert
report of Dr. Jeffrey Breall is adequate pursuant to Chapter 74 of the Texas Civil
Practice and Remedies Code.
STATEMENT OF FACTS
On February 10, 2012, 53-year-old Nancy Jo Rodriguez is sent by her
psychiatrist to Seton Northwest Hospital Emergency Center (Seton) for evaluation
of confusion. Although Nancy suffers from bipolar disorder and has a history of
confusion, she is able live independently at this time (CR 44). While at Seton,
Nancy is referred to Vivek Goswami, M.D. (Dr. Goswami), a cardiologist with
Austin Heart, PLLC (Austin Heart). Dr. Goswami treats her for atrial fibrillation
by placing Nancy on Pradaxa (CR 330). Pradaxa is an anticoagulant, or “blood
thinner”. Pursuant to the medical records relied on by Dr. Breall, Nancy is
discharged home from Seton with instructions to follow-up with David Kessler,
M.D. (Dr. Kessler), who also practices with Austin Heart.
Following Nancy’s next visit, Dr. Kessler notes that her Pradaxa therapy
should be stopped. According to the records upon which Dr. Breall relied in
formulating his opinions, a copy of Dr. Kessler’s instructions from this visit is sent
to Dr. Goswami, Nancy’s primary cardiologist. Despite this – and despite having
authorized Nancy’s Pradaxa for 5 refills – Dr. Goswami takes no action to 4 discontinue Nancy’s Pradaxa therapy (CR 330-331). In other words, Dr. Goswami
makes no effort to protect his patient, who has a history of confusion and mental
illness, from a potentially dangerous drug known to have an array of severe side
effects (CR 43-44). Because of Dr. Goswami’s omissions, Nancy continues to take
Pradaxa over the course of the next 4 months, as prescribed by Dr. Goswami.
On July 2, 2012, Nancy’s son and daughter-in-law find Nancy in her
apartment, covered in bruises, blood, and feces. Her medical records from Seton
Northwest indicate she is admitted to the ICU at Seton and diagnosed with severe
coagulopathy, or a severe impairment of her blood’s ability to clot. She is treated
for gastrointestinal bleeding, hypotension, and kidney injury (CR 44). Only on July
5, 2012 – after 4 months of ignoring his mentally ill patient for whom he has
authorized 5 refills of Pradaxa – does Dr. Goswami finally learn, and dictate in
Nancy’s medical records, that “[s]he had continued to be compliant with Pradaxa.”
At that point, he ironically notes that “I think it is best to hold her Pradaxa
indefinitely.”
Nancy is eventually discharged and cared for at Ashwood Assisted Living,
an extended-care facility (CR 43). Her discharge summary from Seton Northwest
indicates her primary discharge diagnosis is “1. Acute blood loss anemia secondary
to acute gastrointestinal bleed secondary to hypercoagulable state while on
Pradaxa.” 5 SUMMARY OF THE ARGUMENT
The trial court’s decision to deny Defendants’ motion to dismiss based on
the expert report of Dr. Breall was well within the discretion afforded it by the
Texas Legislature. Dr. Breall’s report sets forth the requisite good-faith effort to
provide a fair summary of each element of Nancy’s claims against Defendants.
Furthermore, Dr. Breall sets out the requisite facts upon which he bases his
opinions. Because Defendants do not agree with Dr. Breall’s opinion, they attempt
to make summary judgment-like arguments against Nancy’s claims by referencing
facts and information not contained in Dr. Breall’s report. This is not only outside
the analysis of whether a Chapter 74 report is adequate, but also an attempt to
persuade the appellate court to second-guess the decision of the trial court by
introducing evidence that is not properly before the court at this preliminary
juncture. Dr. Breall provides the necessary factual background for his opinions in
his expert report. Because the trial court had ample grounds to conclude that Dr.
Breall’s report was sufficient under Chapter 74, the trial court’s decision does not
constitute an abuse of discretion.
ARGUMENT
Because this is a case involving permanent, devastating damages resulting
from medical neglect, Plaintiff must meet the procedural requirements of Texas
Civil Practice and Remedies Code §§ 74.351 – 74.403. One of the procedural 6 hurdles placed before plaintiffs in medical neglect cases is the requirement that the
plaintiff provide an expert report and the expert’s curriculum vitae to the defendant
healthcare provider no later than 120 days after the date suit is filed. TEX. CIV.
PRAC. REM. CODE 74.351(A). The Texas Supreme Court has ruled that:
“...the expert report must represent only a good-faith effort to provide a fair summary of the expert’s opinions. A report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in the statute. (citing Hart v. Wright, 16 S.W.3d 872, 877 (Tex. App.—Fort Worth 2000, pet. denied)). In setting out the expert’s opinions on each of those elements the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.” Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 737, 878-879 (Tex. 2001) (emphasis added).
Thus, the only requirements of the statute with regard to expert reports are that the
report(s) (1) give the defendant notice of what conduct upon which Plaintiff is
basing her claim, and (2) give the Court sufficient information to determine that
the Plaintiff’s claim has merit. Id.
Although Defendants initially objected to the report of Dr. Breall based on
his alleged lack of qualifications, Defendants have chosen not to pursue this issue
on appeal (See CR 119-127). As a result, Defendants have waived any argument
that Dr. Breall, a board-certified cardiologist with over 20 years of experience, is
somehow not qualified to opine on the issues relevant to this case (CR 43). See
7 TEX. R. APP. P. 38.1; Saudi v. Brieven, 176 S.W.3d 108 (Tex. App.—Houston [1st
Dist.] 2004, pet. denied). Thus, Plaintiff will respond only to Defendants’
arguments regarding the substantive content of Dr. Breall’s expert report.
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANTS’ MOTION TO DISMISS BASED ON DR. BREALL’S REPORT.
A. The Trial Court’s Decision was Well Within the Discretion Afforded it by the Texas Legislature.
The trial court’s decision to deny Defendants’ Motion to Dismiss in this case
was well within the broad discretion afforded it by the Texas Legislature. Because
the determination of whether an expert report is adequate “has been committed to
the trial court’s sound discretion by the Legislature”, a trial court’s decision on
whether a report is adequate is reviewed only for an abuse of discretion. Hebert v.
Hopkins, 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) (emphasis added).
Not only does this review standard serve to “insulate the trial judge’s reasonable
choice from appellate second guessing”, but it permits reversal only when the trial
court acts without reference to guiding rules and principles when making its
decision. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); Bowie Mem.
Hosp. v. Wright, 79 S.W.3d 48, 51-52 (Tex. 2002). Because the “dividing line
between a sufficient and an inadequate report is impossible to draw precisely”, an
analysis of that decision under this standard of review “asks not how an appellate
court would have resolved that issue, but instead whether the trial court abused its 8 discretion.” Hebert, 395 S.W.3d 884 at 891. The appellate court “may not
substitute its own judgment for the trial court’s judgment.” Wright, 79 S.W.3d at
52. Furthermore, a trial court does not abuse its discretion simply because the
reviewing court would have decided an issue differently. Walker v. Gutierrez, 111
S.W.3d 56, 62 (Tex. 2003).
The trial court’s decision to deny Defendants’ Motion to Dismiss was well
within its discretion and should be affirmed pursuant to the abuse of discretion
standard. As demonstrated by the arguments set forth below, the trial court
reasonably determined that the expert reports in this case were adequate. In looking
only to what is contained within the 4 corners of Dr. Breall’s report – as we must
in determining the adequacy of a Chapter 74 expert report – Dr. Breall’s report
provides a sufficient “good faith effort” to opine on each element of Plaintiff’s
negligence claims. See Palacios, 46 S.W.3d at 878. Texas case law has protected
trial court decisions on Chapter 74 expert reports from second-guessing by
appellate courts, and the judgment of the trial court in this case should not be
supplanted on appeal.
B. The Court Must Look Only at the Facts Provided in the Four Corners of Dr. Breall’s Report.
In his report, Dr. Breall sets forth the facts upon which his opinions are
based. When evaluating the adequacy of a Chapter 74 report, a court may consider
9 only the contents of the report. By requiring a report to “stand or fall on the
contents within its ‘four corners’”, a court is precluded from “filling gaps in a
report by drawing inferences...” Palacios, 46 S.W.3d at 878; Wright, 79 S.W.3d at
53. In addition, neither the trial court or the appellate court may “infer additional
opinions or underlying facts to fill in gaps that the report itself leaves open.”
Hebert, 395 S.W.3d at 890. As a result, the only facts the trial and appellate courts
in this case can consider in evaluating the adequacy of Dr. Breall’s report are the
facts that are actually provided in his report, as discussed below.
Defendants acknowledge this long-established rule in their Brief, but then
proceed to disregard it entirely by basing their arguments regarding the report on
information external to its four corners. In an apparent attempt to excuse this
disregard for the four-corners rule, Defendants nonsensically accuse Dr. Breall of
“concealing” certain information because he did include it in his report.
Defendants provide no credible basis for this accusation. Dr. Breall is entitled to
formulate his medical opinions based on the facts he deems relevant based on his
years of experience and training. Defendants may disagree with the opinions of Dr.
Breall and the facts he chose to reference in his report. However, these arguments
are not proper objections to a Chapter 74 report, which must be based only on the
information provided in the report. Defendants attempt to persuade the court to
10 “infer additional facts or underlying facts” in direct contradiction to Chapter 74
case law. Palacios, 46 S.W.3d at 878.
Defendants are attempting to defend the case on grounds that simply cannot
be considered at this threshold stage of the case. They are attempting to litigate
issues of the case beyond those contained in the expert report in a strained attempt
to bolster together a stronger argument and overcome the abuse of discretion
standard. Plaintiff’s arguments are restricted to the four corners of Dr. Breall’s
report, and Defendants’ arguments must be similarly restricted. Yet, had Dr. Breall
made reference to the exact date that Nancy was prescribed Pradaxa and the dates
she refilled her authorized prescriptions, this information is hardly as unfavorable
to Plaintiff’s case as Defendant seems to suggest. Even if Dr. Goswami authorized
5 refills of Pradaxa before Dr. Kessler ordered it be discontinued, and before the
standard of care required it be discontinued – he did nothing to abide by his duty to
his confused, bipolar patient to ensure her Pradaxa therapy was actually
discontinued. At the very least, this is an issue that should be resolved by the fact
finder rather than in a Motion to Dismiss based on the adequacy of a Chapter 74
expert report.
In his report, Dr. Breall sets forth the relevant facts upon which his opinions
are based. In their attempt to disregard these facts and the sufficiency of Dr.
Breall’s report, Defendants incorrectly allege that Dr. Breall failed to identify the 11 records he reviewed to support his opinions. In fact, the very first paragraph of Dr.
Breall’s expert report states that he:
“...had the opportunity to review, in detail, all of the materials which you sent to me including Ms. Rodriguez’s various in-patient hospital records at Seton Northwest, outpatient cardiology records from Austin Heart, extended care facility records at Ashwood Assited Living, and her outpatient counseling records.”
Yet, Defendants disregard these facts entirely and instead allege several times
throughout their brief that Dr. Breall failed to state what records he reviewed to
reach the opinions in his report.
Dr. Breall then sets forth the additional, relevant facts upon which his
opinions are based. Nancy suffers from bipolar disorder as well as a history of
confusion (CR 44). Dr. Breall explains that Nancy was under the care and
treatment of Austin Heart, PLLC and two of its doctors, Dr. David Kessler and Dr.
Vivek Goswami. Id. Both Dr. Kessler and Dr. Goswami were Nancy’s
cardiologists, and Dr. Goswami was her primary cardiologist. Id. Dr. Kessler
orders that Nancy’s Pradaxa therapy be stopped. Id. However, this order was not
“appreciated” by Dr. Goswami, who instead continued to authorize Nancy’s
Pradaxa refills. Id. This is despite the fact that the standard of care required that
Pradaxa therapy be stopped. Id. Because Defendants failed to discontinue Nancy’s
Pradaxa therapy, she was hospitalized with hypotension, acute kidney injury, and
gastrointestinal bleeding. Id. These “known side effects of the over-use of 12 Pradaxa” were attributable to Defendants’ failure to discontinue Nancy’s Pradaxa
therapy, despite the fact it was required by the standard of care and recognized by
another doctor at Austin Heart. Id. It is clear that Dr. Breall’s report provides the
facts necessary for him to set forth a good-faith effort to opine on each element of
Nancy’s claims.
C. Dr. Breall’s Report Sets Forth a Good-Faith Effort to Opine on Each Element of Plaintiff’s Claims.
The requirements of Chapter 74 mandate only a good-faith effort to opine on
the standard of care, Defendants’ breach of that standard, and the causal
relationship between Defendants’ breach of the standard of care and Nancy’s
injuries. Plaintiff is not required to marshal all of her proof against Defendants in
her expert report. Palacios, 46 S.W.3d 873 at 878. An expert report may be
“informal and the information presented need not meet the same requirements as
evidence offered in summary judgment proceedings or in a trial.” Whisenant v.
Arnett, 339 S.W.3d 920, 923 (Tex. App.—Dallas 2011, no pet.). Dr. Breall’s report
demonstrates a good-faith effort to set forth his opinion on each element as well as
a fair summary of his opinion. In doing so, the report satisfies the requirements of
Chapter 74. Dr. Breall’s report may be concise and his criticism of Defendants may
be plainly stated. However, Defendants cannot credibly claim that they do not
understand the conduct upon which Rodriguez’s claim is based, and the report
13 provides sufficient insight for the court to conclude her claim is meritorious. His
report makes it clear that Dr. Goswami failed to discontinue the administration of
this drug to a confused, mentally ill patient after Nancy’s follow-up visit to another
doctor in Dr. Goswami’s same heart group. These are not the types of claims that
should tossed out as “frivolous”, as Defendants argue.
Dr. Breall’s report meets the expert report requirements because it clearly
identifies the standard of care applicable to Defendants, the breach of that standard
of care, and the causal relationship between the breach and Rodriguez’s injuries.
Defendants claim that “Dr. Breall completely fails to identify the standard of care”.
However, Dr. Breall states in his report that the “standard of care would have been
to follow the orders of Dr. Kessler to stop the administration of Pradaxa.” As he
explains, one of Rodriguez’s cardiologists, Dr. Kessler, requested that she
discontinue Pradaxa therapy. Dr. Breall further provides that the standard of care
would have been to follow these directions because the overuse of Pradaxa can
result in well-known side effects and injuries such as those eventually suffered by
Nancy in this case.
In his report, Dr. Breall clearly delineates the standard of care applicable to
Defendants. The effect of overuse of Pradaxa, Dr. Kessler’s order to stop its
administration to Rodriguez, and Defendants’ disregard for Dr. Kessler’s request
are all set forth in Dr. Breall’s report. The report concisely provides a “good faith 14 effort to set forth the standard of care”. The report (1) informs defendants of the
conduct called into question – the failure to adhere to Dr. Kessler’s order to
discontinue the drug; and (2) provides a basis for the trial court to conclude the
claims have merit by describing the known effects of failing to adhere to
discontinue Pradaxa that were eventually suffered by Rodriguez. The expert report
more than satisfies the minimum requirements set forth by TEX. CIV. PRAC. & REM.
CODE § 74.351.
Next, Dr. Breall opines on Defendants’ breach of the standard of care. In his
report, Dr. Breall explains that Dr. Goswami failed to adhere to Dr. Kessler’s order
for Nancy to discontinue Pradaxa, which was required by the standard of care. As a
result of this failure, Rodriguez continued to obtain refills of Pradaxa under Dr.
Goswami’s authorization. Dr. Breall clearly provides that the standard of care was
for Pradaxa to be discontinued but that in a clearly delineated breach of that
standard, Pradaxa was not discontinued due to the acts or omissions of Dr.
Goswami and Austin Heart. The report thus constitutes a good-faith effort to set
forth the breach of the applicable standard of care. It does exactly what is required
by Chapter 74 – it informs Defendants of the conduct called into question, and
provides a meritorious basis for the claims against Defendants.
Defendants further allege that Dr. Breall’s report does not adequately
address causation. Dr. Breall sets forth recognized side effects of overuse of 15 Pradaxa, and provides that these side effects were precisely the ones suffered by
Rodriguez. Dr. Breall opines that these injuries and Rodriguez’s acute admission to
the hospital in July were directly caused by Defendants’ failure to discontinue her
Pradaxa therapy. Dr. Breall provides that Nancy was admitted to the hospital with
“acute kidney injury, gastrointestinal bleeding, and hypotension.” He provides that
these injuries resulted from Defendants’ failure to discontinue Pradaxa and
therefore act according to the standard of care applicable to them. An expert is not
required to delve into a detailed analysis of the nature of a plaintiff’s injuries in a
Chapter 74 expert report. Rather, an expert is required only to opine on the “causal
relationship between that failure and the injury, harm, or damages claimed” – and
this is precisely what Dr. Breall has done. TEX. CIV. PRAC. & REM. CODE §
74.351(r)(6).
II. EVEN IF THE COURT DETERMINES DR. BREALL’S REPORT IS DEFICIENT, THE COURT SHOULD REMAND SO THE TRIAL COURT CAN CONSIDER GRANTING A 30- DAY EXTENSION TO CURE.
Although Plaintiff does not feel that an amendment is necessary for the
reasons stated above, if the Court determines Dr. Breall’s report is deficient as
alleged by Defendants, Plaintiff should be permitted to serve an amended expert
report to cure the alleged deficiencies. An appellate court should remand to allow a
trial court to consider granting a 30-day extension to amend a deficient report if the
trial court concluded the report was adequate. Leland v. Brandal, 257 S.W.3d 204, 16 207 (Tex. 2008). This is because the purpose of an expert report requirement is to
deter frivolous claims and not to dispose of claims regardless of their merits.
Hollingsworth v. Springs, 353 S.W.3d 506, 524 (Tex. App.—Dallas 2011, pet.
denied). Defendants would certainly prefer to have Nancy’s medical neglect claims
disposed on Chapter 74 formal requirements rather than the actual merits of this
case. However, case law makes it clear that an inadequate report does not indicate
a claim is frivolous if the alleged deficiencies are readily curable – as they are here.
Id. Defendants allege Dr. Breall’s report is conclusory in that it lacks sufficient
facts to support Dr. Breall’s opinions. Yet, a 30-day extension is proper even if the
report is deficient for these reasons based on the plain language of Chapter 74 and
also because the deficiency is readily curable. See id; Leland, 257 S.W.3d at 207.
In the event the Court finds that Dr. Breall’s report is deficient, the Court should
remand the case to the trial court to permit the trial court to grant a 30-day
extension to cure.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee Nancy Jo Rodriguez
respectfully requests that the Court affirm the decision of the trial court denying
Appellants’ Chapter 74 Motion to Dismiss. Appellee further requests that she be
awarded her reasonable attorney’s fees and costs as allowed by Chapter 74 of the
Texas Civil Practice and Remedies Code. In the event the Court finds Dr. Breall’s 17 Report deficient, Appellee prays that the Court remand to allow the trial court to
determine whether to grant a 30-day extension to cure the alleged deficiencies.
Appellee further prays for such other relief to which she may be justly entitled.
Respectfully submitted,
L. Todd Kelly Tkelly@carlsonattorneys.com State Bar No. 24035049 THE CARLSON LAW FIRM, P.C. 11606 N. IH-35 Austin, Texas 78753 (512) 346-5688 (512) 719-4362 (Fax)
/s/ L. Todd Kelly L. Todd Kelly
ATTORNEY FOR NANCY JO RODRIGUEZ
CERTIFICATE OF COMPLIANCE
I hereby certify that Appelle’s Brief contains 3,456 words, based on Microsoft Word’s word-count function.
/s/ L. Todd Kelly L. Todd Kelly 18 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been forwarded to the following in accordance with the Texas Rules on the 27th day of January, 2015.
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Cynthia Day Grimes Cynthia.Grimes@strasburger.com Strasburger & Price, LLP 2301 Broadway San Antonio, Texas 78215
Missy Atwood Matwood@germer-austin.com Germer, Beaman & Brown, PLLC 301 Congress Avenue, Suite 1700 Austin, Texas 78701