Wendy Collini, M.D. v. Martha Pustejovsky

280 S.W.3d 456, 2009 Tex. App. LEXIS 1071
CourtCourt of Appeals of Texas
DecidedFebruary 12, 2009
Docket02-07-00005-CV
StatusPublished
Cited by63 cases

This text of 280 S.W.3d 456 (Wendy Collini, M.D. v. Martha Pustejovsky) 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
Wendy Collini, M.D. v. Martha Pustejovsky, 280 S.W.3d 456, 2009 Tex. App. LEXIS 1071 (Tex. Ct. App. 2009).

Opinions

OPINION ON REMAND

TERRIE LIVINGSTON, Justice.

Appellant Wendy Collini, M.D. appeals the trial court’s denial of her motion to dismiss the health care liability claim of appellee Martha Pustejovsky. We originally dismissed this interlocutory appeal for want of jurisdiction. Collini v. Pustejovsky, 253 S.W.3d 292, 294 (Tex.App.-Fort Worth 2007), rev’d, 253 S.W.3d 216 (Tex. 2008). Because the Texas Supreme Court has held that we have jurisdiction, we now consider the appeal on the merits. Collini, 253 S.W.3d at 216. In one issue, appellant contends that the trial court abused its discretion in denying her motion to dismiss by concluding that the expert report served upon her satisfied the requirements of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2008). We reverse and remand.

Background Facts

In June 2006, Martha Pustejovsky asserted a health care liability claim against Wendy Collini, M.D. Her original petition alleged that in 2002, another doctor prescribed Reglan to her and that Dr. Collini continued this prescription for three years. Pustejovsky claimed that the prolonged prescription and use of Reglan caused her to develop tardive dyskinesia.1 She asserted that Dr. Collini was negligent and grossly negligent because Dr. Collini failed to inform her of the known dangers associated with Reglan and failed to adequately [460]*460monitor the proper prescription of the drug and her condition while using it. Pustejovsky’s petition sought actual and punitive damages related to her alleged physical pain, suffering, and impairment along with further damages for mental anguish. In July 2006, Dr. Collini filed her original answer, generally denying Pustejovsky’s allegations.

In September 2006, in accordance with section 74.351, Pustejovsky served on Dr. Collini an expert report prepared by Paul Haberer, D.O. Dr. Haberer’s report indicates that he is a practicing physician, that he has been licensed in Texas since 1976, and that he has been board certified in family practice since 1989. It then recites that he has personal knowledge of the standard of care for primary care and family medicine physicians and that he has reviewed Pustejovsky’s medical records that he has acquired from various sources.

The report then alleges the following facts. A physician originally prescribed Reglan to Pustejovsky in 2002 to assist with abdominal and gastroesophageal issues, and Dr. Collini continued the prescription for almost three years. In December 2004, Pustejovsky began suffering from sleep disturbances and restlessness, and she also had tremors in her right hand.2 Dr. Collini ended the Reglan prescription in January 2005. As the Reglan left Pustejovsky’s system, the effects of its overuse were unmasked, and by the next month, she was diagnosed by Asher Imam, D.O. with “uncontrolled oral buccal dys-kinesia.” Over the next several months, two other doctors diagnosed Pustejovsky with tardive dyskinesia.

Dr. Haberer’s report then relates that because tardive dyskinesia is a known risk of taking Reglan, as has been disclosed by the drug’s manufacturer, the standard of care requires that a prescription for the drug must be limited to no more than twelve weeks and that those taking the drug should be closely monitored for symptoms of any moving disorder. The report also asserts that when Pustejov-sky’s hand tremors began, Dr. Collini should have tapered off Reglan, sought a substitute medication, and scheduled Pus-tejovsky for a neurological consultation.

Dr. Haberer also submitted his curriculum vitae with the report. The vitae indicates that Dr. Haberer is currently on an emergency room staff at a hospital in Eastland, Texas and that he has served in such a capacity at fourteen hospitals over the last thirty years. It further relates (among other things) that he received a bachelor’s degree in the field of pharmacy, that he attended a four-year pharmacy specialist course in the early 1960s while he was in the air force, and that he was an associate professor of medicine at the Texas College of Osteopathic Medicine from 1976 to 1988.

In October 2006, Dr. Collini filed a motion to dismiss Pustejovsky’s claim with prejudice, contending that she failed to make a good faith effort to serve an adequate expert report as required by section 74.351. Specifically, Dr. Collini argued that (1) Dr. Haberer did not qualify himself as an expert on liability and causation because his report failed to explain that he had any familiarity with prescribing Re-glan or any experience in assessing the causal relationship between Reglan and tardive dyskinesia and (2) Dr. Haberer’s report addressed causation only through conclusory statements.3 After Pustejov-[461]*461sky filed a response to Dr. Collini’s motion, Dr. Collini filed a reply. The reply incorporated Dr. Collini’s complete medical file on Pustejovsky, spanning more than seven hundred pages, in an attempt to discredit the factual information and resulting conclusions contained in Dr. Haberer’s report.

On December 18, 2006, the trial court held a hearing on Dr. Collini’s motion to dismiss. After Dr. Collini’s counsel briefly argued the motion, the trial court denied it. Dr. Collini timely perfected this interlocutory appeal.

The Sufficiency of Dr. Haberer’s Report

In her sole issue, Dr. Collini contends that the trial court abused its discretion by refusing to dismiss Pustejovsky’s claim because Dr. Haberer’s report fails to demonstrate his expert qualifications through experience with Reglan or the causal relationship between that drug and tardive dyskinesia and also fails to provide a specific factual explanation of such a causal relationship.

Texas courts agree that review of a trial court’s denial of a motion to dismiss under section 74.351 is subject to an abuse of discretion standard. See, e.g., Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex.App.-Houston [14th Dist.] 2008, no pet.); Moore v. Gatica, 269 S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied) (op. on remand). Also, a trial court’s decision on whether a physician is qualified to offer an expert opinion in a health care liability claim is reviewed under an abuse of discretion standard. Moore, 269 S.W.3d at 139.

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. A trial court does not abuse its discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours & Co. v. Robinson,

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Bluebook (online)
280 S.W.3d 456, 2009 Tex. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wendy-collini-md-v-martha-pustejovsky-texapp-2009.