COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-005-CV
W ENDY COLLINI, M.D. APPELLANT
V.
MARTHA PUSTEJOVSKY APPELLEE
------------
FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
OPINION ON REMAND
Appellant W endy Collini, M.D. appeals the trial court’s denial of her motion to
dismiss the health care liability claim of appellee Martha Pustejovsky. W e originally
dismissed this interlocutory appeal for want of jurisdiction. Collini v. Pustejovsky,
253 S.W .3d 292, 294 (Tex. App.—Fort W orth 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). W e reverse and remand.
Background Facts
In June 2006, Martha Pustejovsky asserted a health care liability claim against
W endy 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 monitor 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
1 Tardive dyskinesia is a condition that causes involuntary movement of the limbs, face, or tongue. See State ex rel. F.H., 214 S.W .3d 780, 781 n.1 (Tex. App.—Tyler 2007, no pet.); In re C.S., 208 S.W .3d 77, 79 n.7 (Tex. App.—Fort W orth 2006, pet. denied). The prolonged use of Reglan may cause tardive dyskinesia. See McNeil v. Wyeth, 462 F.3d 364, 366–67 (5th Cir. 2006) (explaining the uses of Reglan and the potential adverse consequences from its prolonged prescription).
2 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 dyskinesia.” 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 Pustejovsky’s
hand tremors began, Dr. Collini should have tapered off Reglan, sought a substitute
medication, and scheduled Pustejovsky for a neurological consultation.
2 The report alleged that the hand tremors began in February 2003.
3 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 Reglan 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 Pustejovsky 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
3 Concluding his report, Dr. Haberer expressed his opinion that “Dr. Collini’s violations of the standard of care were a direct and proximate cause of Mrs. Pustejovsky’s tardive dyskinesia and the worsening of her tardive dyskinesia caused by the Reglan.”
4 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
W orth 2008, pet. filed) (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
5 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 (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, 923 S.W .2d 549, 558 (Tex. 1995).
In a health care liability claim, a claimant must serve an expert report (that
addresses liability and causation) on each defendant no later than the 120th day
after the claim is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (j). If an
expert report has not been served on a defendant within the 120-day period, then
on the motion of the affected defendant, the trial court must dismiss the claim with
prejudice and award the defendant reasonable attorney’s fees and costs. Id.
§ 74.351(b).
A report “has not been served” under the statute when it has physically been
served but it is found deficient by the trial court. Lewis v. Funderburk, 253 S.W .3d
204, 207–08 (Tex. 2008). W hen no report has been served because the report that
was served was found to be deficient, the trial court has discretion to grant one thirty-
day extension to allow the claimant to cure the deficiency. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c).
6 A report is deficient (therefore subjecting a claim to dismissal) when it “does
not represent an objective good faith effort to comply with the [statute’s] definition of
an expert report.” Id. § 74.351(l); see Richburg v. Wolf, 48 S.W .3d 375, 377 (Tex.
App.—Eastland 2001, pet. denied) (adding that it is the defendant’s burden to
demonstrate that the good faith standard has not been satisfied). W hile the expert
report “need not marshal all the plaintiff’s proof,” it must provide a fair summary of
the expert’s opinions as to the 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); Palacios, 46 S.W .3d at
875, 878.
To qualify as a good faith effort, the report must “discuss the standard of care,
breach, and causation with sufficient specificity to inform the defendant of the
conduct the plaintiff has called into question and to provide a basis for the trial court
to conclude that the claims have merit.” Palacios, 46 S.W .3d at 875. A report does
not fulfill this requirement if it merely states the expert’s conclusions or if it omits any
of the statutory requirements. Id. at 879. 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.” Id. W hen reviewing the adequacy of a
report, the only information relevant to our inquiry is the information contained within
the four corners of the document. Id. at 878; see Bowie Mem’l Hosp. v. Wright, 79
7 S.W .3d 48, 52 (Tex. 2002). 4 This requirement precludes a court from filling gaps in
a report by drawing inferences or guessing as to what the expert likely meant or
intended. See Austin Heart, P.A. v. Webb, 228 S.W .3d 276, 279 (Tex. App.—Austin
2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W .3d at 52).
An expert report concerning standards of care for physicians “authored by a
person who is not qualified to testify . . . cannot constitute an adequate report.” In
re Windisch, 138 S.W .3d 507, 511 (Tex. App.—Amarillo 2004, no pet.); see Ehrlich
v. Miles, 144 S.W .3d 620, 624–25 (Tex. App.—Fort W orth 2004, pet. denied). To
be an “expert” on the departure from a physician’s standard of care (therefore
qualifying the submission of an expert report), a person must be a physician who
4 W e recognize that the Beaumont Court of Appeals has held that medical records submitted by a defendant in an objection to an expert report may be considered by the trial court in determining the adequacy of the report. See Baptist Hosps. of Se. Tex. v. Carter, No. 09-08-00067-CV, 2008 W L 2917109, at *3 n.4 (Tex. App.—Beaumont July 31, 2008, no pet.) (mem. op.). Dr. Collini relies on Carter to urge us to review the medical records submitted in her reply at trial, which she claims demonstrate inconsistencies with the factual statements contained in Dr. Haberer’s report. In essence, Dr. Collini asserts that we should consider information outside of the expert report on her behalf while we are prohibited from doing so on behalf of Pustejovsky. W e disagree with the reasoning expressed by our sister court in Carter, and we rely on the language contained in Palacios and Bowie Memorial Hospital to constrain our review of the report’s adequacy at this preliminary stage in the proceedings to the specific information and allegations contained within it. See Bowie Mem’l Hosp., 79 S.W .3d at 53 (limiting review of an expert report to information contained within its four corners); Palacios, 46 S.W .3d at 878 (stating that a court “should look no further than the report”); see also Maris v. Hendricks, 262 S.W .3d 379, 386 (Tex. App.—Fort W orth 2008, pet. denied) (prohibiting a physician from using deposition testimony to attack the adequacy of an expert report served upon him).
8 (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; 5
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(5)(A), § 74.401(a) (Vernon 2005). In
determining the third element of this standard, courts must consider whether the
physician who completed the report (1) is board certified or has other substantial
training or experience in an area of medical practice relevant to the claim and (2) is
actively practicing medicine in rendering medical care services relevant to the claim.
Id. § 74.401(c). In other words,
there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question . . . . [T]he proponent of the testimony has the burden to show that the expert possesses special knowledge as to the very matter on which he proposes to give an opinion.
Ehrlich, 144 S.W .3d at 625 (quoting Broders v. Heise, 924 S.W .2d 148, 152–53
(Tex. 1996)). For this reason, the offered report must generally demonstrate that the
expert has “knowledge, skill, experience, training, or education regarding the specific
issue before the court which would qualify the expert to give an opinion on that
5 Dr. Collini has not challenged that Dr. Haberer was practicing medicine at the time he submitted his report or when Pustejovsky's claim arose. Therefore, we will limit our analysis to the second and third statutory prongs related to expert qualifications on the standard of care issue. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(2)–(3).
9 particular subject.” Id. (quoting Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex.
2003)).
However, there are certain standards of medical care that apply to multiple
schools of practice and any medical doctor. See McKowen v. Ragston, 263 S.W .3d
157, 165 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Blan v. Ali, 7 S.W .3d 741,
745–46 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Therefore, a physician
“who is not of the same school of medicine [as the defendant] is competent [to
submit a report] if he has practical knowledge of what is usually and customarily
done by a practitioner under circumstances similar to those confronting the
defendant.” Ehrlich, 144 S.W .3d at 625; see Marling v. Maillard, 826 S.W .2d 735,
740 (Tex. App.—Houston [14th Dist.] 1992, no writ).
Dr. Haberer’s Expert Qualifications
Dr. Collini contends that Dr. Haberer failed to qualify himself as an expert
because his report does not demonstrate any expertise or experience in prescribing
Reglan or diagnosing or treating drug-induced tardive dyskinesia. Pustejovsky
asserts that Dr. Haberer was not required to address his experience with Reglan or
tardive dyskinesia because the specific issue in this case concerns a physician’s
duty to comply with a drug manufacturer’s expressed instructions and warnings,
which is a common standard known by all physicians.
Was Dr. Haberer’s Report Required to Demonstrate His Knowledge of and Experience Related to the Accepted Standards of Medical Care Specifically Concerning the Prescription of Reglan?
10 Dr. Collini first contends that because Dr. Haberer’s current area of practice
is emergency medicine, he cannot address the standard of care that applies to her,
because she is an internist. However, the proper inquiry in assessing Dr. Haberer’s
qualifications to submit an expert report is not his area of practice, but his familiarity
with the issues involved in the claim before the court. See Blan, 7 S.W .3d at 745.
Next, Dr. Collini asserts that Dr. Haberer’s report is insufficient to establish his
qualifications because it does not establish that he has any specific experience
“regarding the prescription of Reglan.” To establish his qualifications, Dr. Haberer
was required to demonstrate experience with the specific issues raised by
Pustejovsky’s claim. See Ehrlich, 144 S.W .3d at 625.
Pustejovsky's original petition indicated that the specific factual issue she was
raising in her claim concerned the lengthy, ongoing prescription of Reglan. Dr.
Haberer's report describes that
[t]he standard of care pertaining to Reglan is to limit the time prescribed to no more than 12 weeks and the lowest dose needed to provide therapeutic relief. For gastrointestinal problems, Reglan's manufacturer specifies that this drug should be prescribed for no more than 4–12 weeks and this is the standard of care applicable to this case. Tardive dyskinesia (TD) is a known complication of metoclopramide, which is also disclosed by Reglan's manufacturer.
There are minimum, general standards of prescribing medication that are
common to all physicians and all schools of practice. See Patel v. Williams ex rel.
Estate of Mitchell, 237 S.W .3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007, no
11 pet.) (approving of an expert report’s explanation of the breach of the standard of
care for prescribing Risperdal because its use for treating dementia had not been
approved by the FDA and concluding that a “reasonable physician should not, as a
general proposition, prescribe the wrong drug for his patients”); Puempel v. Lopez,
No. 05-07-00371-CV, 2007 W L 3173405, at *3–4 (Tex. App.—Dallas Oct. 31, 2007,
no pet.) (mem. op.) (affirming the use of FDA and PDR guidelines to define the
standard of care for prescribing weight loss medication); Metot v. Danielson, 780
S.W .2d 283, 286–87 (Tex. App.—Tyler 1989, writ denied), overruled on other
grounds by Cecil v. Smith, 790 S.W .2d 709, 716 (Tex. App.—Tyler 1990) (op. on
reh’g), rev’d, 804 S.W .2d 509 (Tex. 1991) (holding that the trial court abused its
discretion when it decided that a board-certified doctor was not qualified to testify
about a neurosurgeon’s “general minimum standards” for the prescription of drugs
that are “applicable to all physicians”). Dr. Haberer’s report indicates that he
certainly has experience with the general standards related to prescribing
medications. For instance, it demonstrates that he is board certified in family
practice, that he has “personal knowledge of the standard of care applicable to . . .
family medicine,” that he has experience in practicing in hospitals and in family
practice, and that, as explained above, his undergraduate degree and post-graduate
employment and research activities concerned pharmaceutical matters. Based on
this experience, his report demonstrates his qualifications to opine on the duties to
follow a manufacturer’s instructions about the length of time a drug should be
12 prescribed, heed warnings specifically given by the manufacturer related to that
drug, and monitor a patient’s conditions that may be connected to those warnings.
Because Dr. Haberer’s report indicates that he had knowledge of the accepted
standards of medical care related to prescribing medication and acting on such
medication’s related instructions and warnings and that he has experience and
training in doing so, we conclude that he was qualified to submit a report establishing
Dr. Collini’s standards of care in this case. 6 See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.401(a)(2), (3).
Was Dr. Haberer’s Report Required to Demonstrate His Knowledge of and Experience Related to the Causal Relationship of Reglan with Tardive Dyskinesia?
Next, Dr. Collini asserts that Dr. Haberer has not qualified himself as an expert
on causation because he has not recited experience or expertise in the diagnosis
and treatment of drug-induced tardive dyskinesia. Along with the standards of care
and a description of a physician’s inability to satisfy those standards, an expert report
served under section 74.351 must address the causal relationship to the damages
6 If Dr. Haberer had submitted no details regarding the manufacturer’s warnings related to Reglan, he likely would have been required to demonstrate his specific experience with the drug and its effects related to his standard of care assertion, because he would have been assessing blame on Dr. Collini for prescribing the drug based on his independent knowledge of it. However, Dr. Haberer’s report relies on the manufacturer’s instructions and warnings to assert that when presented with such instructions, a physician has a duty to follow them, and when presented with such warnings, a physician has a duty to monitor conditions related to them. W e conclude that these asserted duties do not require specialized understanding. See Blan, 7 S.W .3d at 745.
13 the plaintiff has claimed. Id. § 74.351(j), (r)(6). A physician is qualified to submit an
expert report on the causal relationship between a departure from a standard of care
and an injury when he would otherwise be qualified to address causation under rule
702 of the Texas rules of evidence. Id. § 74.351(r)(5)(C); see Tex. R. Evid. 702; 7
Thomas v. Alford, 230 S.W .3d 853, 857 (Tex. App.—Houston [14th Dist.] 2007, no
pet.). The party offering the witness as an expert on causation must establish that
the witness is qualified to testify under rule 702. Mem’l Hermann Healthcare Sys.
v. Burrell, 230 S.W .3d 755, 762–63 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(deciding that a doctor was qualified to opine about causation because his report
demonstrated direct experience with treating decubitus ulcers, which was the
condition at issue). To be so qualified, “an expert must have knowledge, skill,
experience, training, or education regarding the specific issue before the court that
would qualify the expert to give an opinion on that particular subject.” Thomas, 230
S.W .3d at 857, 860 (citing Broders, 924 S.W .2d at 153) (holding that because the
doctor who submitted an expert report did not demonstrate knowledge of cancer
treatment, he was not qualified to offer an opinion that an earlier diagnosis could
have produced a better outcome for the plaintiff). Further, to justify the submission
of an opinion under the rules of evidence, the proponent of the opinion must show
7 Rule 702 states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702.
14 that the opinion is reliable. See Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 578
(Tex. 2006).
W hile Dr. Haberer’s curriculum vitae does establish a background in
pharmaceutical matters, his report does not indicate that he has any specific
knowledge, experience, education, or training in assessing the causal relationship
between the prolonged use of Reglan and tardive dyskinesia. In fact, his report does
not state that he has any experience or training regarding Reglan or tardive
dyskinesia at all; rather, it only generally states that he has knowledge applicable to
“primary care and family medicine.” The report does not indicate that the diagnosis
of tardive dyskinesia resulting from prolonged Reglan use is a matter that is
developed in various fields to the extent that any physician would be qualified to
report about it. Dr. Haberer, therefore, has not demonstrated his qualifications,
under the standards set forth above, to support his attempt to causally link the
alleged breach of Dr. Collini’s duty to follow manufacturer’s instructions and
warnings to Pustejovsky’s deteriorating condition starting in December 2004.
Pustejovsky contends that Dr. Haberer’s qualifications to assess causation
may be established by the facts that Reglan’s manufacturer disclosed tardive
dyskinesia as a known complication and that the report details that three physicians
diagnosed her with dyskinesia related to her Reglan use. Courts have held that in
addressing causation, a reporting physician may rely on the opinions of other
individuals who have rendered reports or diagnoses. See Kelly v. Rendon, 255
15 S.W .3d 665, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (noting that
“nothing in the health care liability statute prohibits an otherwise qualified physician
from relying on [another opinion] in the formation of the physician’s own opinion”);
Cresthaven Nursing Residence v. Freeman, 134 S.W .3d 214, 234 (Tex.
App.—Amarillo 2003, no pet.) (holding that a testifying physician properly relied, in
part, on the opinions of other doctors in establishing causation); see also Tex. R.
Evid. 703 (stating that an expert can base an opinion on reasonably reliable data).
However, in both Kelly and Freeman, the reporting physicians also demonstrated
their own qualifications related to their specific experience with conditions involved
in those claims. See Kelly, 255 S.W .3d at 673–75; Freeman, 134 S.W .3d at 232.
Also, while Dr. Haberer’s report briefly states the conclusions of the three physicians
who examined Pustejovsky, it does not provide any background on the experience
or training of those physicians that would signal to the trial court that those opinions
were reliable. See Tex. R. Evid. 703 (requiring reasonable reliance in the formation
of an expert opinion); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W .2d 713, 728
(Tex. 1998) (noting that a trial court must determine whether the analysis used to
reach an expert’s conclusions is reliable).
Finally, Dr. Haberer’s report contains several statements regarding Reglan or
tardive dyskinesia that are unrelated to either the other physicians’ opinions or the
manufacturer’s instructions and warnings. For instance, Dr. Haberer states that
Reglan can “help mask the symptoms of dyskinesia” and that the “risk of [tardive
16 dyskinesia] is greater in women, the elderly, 8 and increases with duration of use.”
As demonstrated, while Dr. Haberer may be well qualified to make these assertions,
the four corners of his report simply do not provide any details regarding such
qualifications.
W e hold that Dr. Haberer has not adequately demonstrated his qualifications
to submit an expert report on the issue of causation; therefore, his report is deficient
and does not comply with section 74.351. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l), (r)(5)–(6); Palacios, 46 S.W .3d at 877; Windisch, 138 S.W .3d at 511
(noting that a report authored by an unqualified doctor cannot be adequate).
Therefore, Dr. Haberer’s report is insufficient; we sustain Dr. Collini’s sole issue. W e
now turn to the issue of causation to provide the trial court with guidance on the
retrial of this issue should the trial court grant Pustejovsky an extension. See
Edinburg Hosp. Auth. v. Trevino, 941 S.W .2d 76, 81 (Tex. 1997).
The Adequacy of Dr. Haberer’s Causation Explanation
Finally, Dr. Collini asserts that apart from the issues regarding qualifications,
Dr. Haberer’s report contains an insufficient explanation of the causal relationship
between Dr. Collini’s prescriptions of Reglan and Pustejovsky’s conditions. As we
have described, an expert report must provide a fair summary of the expert’s
opinions on the causal relationship of a breach from a standard of care to the harm
claimed in the case, with enough specificity to allow the trial court to conclude that
8 Pustejovsky was 76 years old when Dr. Haberer filed his report.
17 the plaintiff’s claims have merit. Palacios, 46 S.W .3d at 875, 878; see Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(6). Applying this standard, an expert report is
insufficient when it contains only a series of repetitious, conclusory statements
regarding causation. See Jones v. King, 255 S.W .3d 156, 159 (Tex. App.—San
Antonio 2008, pet. denied) (mem. op.) (adding that an expert must “explain the basis
of his statements to link his conclusions to the facts”).
W e hold that Dr. Haberer’s report addresses causation in a conclusory fashion
and is therefore insufficient. W hile the report adequately describes Pustejovsky’s
alleged physical harm (including her sleep disturbances, hand tremors, and leg
restlessness) and states the conclusions of four doctors (including Dr. Haberer) 9 that
such harm was related to Reglan use, it does not provide any medical detail as to
how the Reglan caused Pustejovsky’s conditions or, more importantly, how Dr.
Collini’s specific prescriptions of Reglan (beyond the taking of Reglan generally)
attributed to the harm. 10 And while the manufacturer’s warning (that Reglan should
9 As described above, Dr. Haberer’s opinion on causation is limited to one conclusory sentence at the end of his report. 10 Dr. Haberer’s report indicates that the three physicians’ respective conclusions were that Pustejovsky’s tardive dyskinesia was “attributed to the use of Reglan,” “secondary to [Reglan],” and “due to Reglan.” However, as explained above, Pustejovsky’s petition did not fault Dr. Collini with prescribing Reglan generally; rather, it focused on “ongoing Reglan prescriptions.” Therefore, the conclusions on causation of those three physicians, to the extent that they are revealed in Dr. Haberer’s report, do not relate to a causal relationship with Dr. Collini’s alleged breach of the specific standard of care at issue—the prolonged prescription of Reglan to Pustejovsky.
18 not be prescribed for more than twelve weeks) coupled with the causation opinions
of the four doctors (though conclusory) may create a reasonable inference that Dr.
Collini’s prolonged prescription of Reglan caused Pustejovsky’s condition, we are not
permitted to rely on that inference in reviewing Dr. Haberer’s report. 11 See Webb,
228 S.W .3d at 279 (noting that courts are precluded “from filling gaps in a report by
drawing inferences”); see also Castillo v. August, 248 S.W .3d 874, 883 (Tex.
App.—El Paso 2008, no pet.) (explaining that courts are not permitted to infer
causation). Because Dr. Haberer’s report does not adequately address the link
between Dr. Collini’s alleged breach of her standard of care and Pustejovsky’s
tardive dyskinesia that allegedly resulted, the report is insufficient.
Proper Disposition Following Reversal
In her brief, Dr. Collini contends that upon reversal, we should render a
judgment dismissing Pustejovsky’s claims with prejudice. Pustejovsky asserts that
if we hold Dr. Haberer’s report to be insufficient, we should remand this case to the
11 W hile it seems to us that we should be able to determine that the explanation on causation is adequate when three physicians’ diagnoses of tardive dyskinesia have been expressed in the report, we simply are constrained from doing so here because we are limited to the report’s four corners, which do not contain a specific link of the diagnoses to Dr. Collini’s actions or those three physicians’ qualifications and the documentation they relied on to form their opinions. See Palacios, 46 S.W .3d at 878; Jones, 255 S.W .3d at 159– 60.
19 trial court to allow it to consider granting thirty additional days to cure the
deficiency. 12
The Texas Supreme Court has held that section “74.351’s plain language
permits one thirty-day extension when the court of appeals finds deficient a report
that the trial court considered adequate.” Leland v. Brandal, 257 S.W .3d 204, 207
(Tex. 2008). Accordingly, the trial court should have an opportunity to consider
granting Pustejovsky an extension to cure the deficiencies detailed in this opinion.
Conclusion
Having sustained Dr. Collini’s only issue, we reverse the trial court’s decision
regarding the sufficiency of Dr. Haberer’s report and remand this case to that court
to consider the issue of whether to grant Pustejovsky a thirty-day extension to file an
adequate expert report.
TERRIE LIVINGSTON JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DAUPHINOT, J. filed a dissenting and concurring opinion.
DELIVERED: February 12, 2008
12 Pustejovsky also sought such an extension as alternative relief from the trial court in the event that it found the expert report to be deficient.
20 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
APPELLEE MARTHA PUSTEJOVSKY ------------
DISSENTING AND CONCURRING OPINION ON REMAND
I concur with the result reached by the majority. But I write separately to
emphasize that this opinion should be limited to the specific facts at issue and also
to caution that we as judges must guard against the idea that it is better to toss out
legitimate medical claims than to let a frivolous claim proceed.
An expert report under section 74.351 of the Texas Civil Practice and
Remedies Code does not need to rise to the level of proof sufficient to win at trial;
1 it need only assure the trial court that the plaintiff’s claim is not frivolous. 1 The report
must, of course, demonstrate that the expert is qualified to render the opinions given
in the report. 2 As the majority points out, Dr. Haberer’s report did not demonstrate
any personal expert knowledge, gained either from experience or training, about the
effects of the overprescription of Reglan. His assertions about causation were
based on the warnings of the drug manufacturer and the diagnoses of other doctors
whose qualifications do not appear in his report.
A layperson can determine that if a drug manufacturer warns that
overprescribing a drug could cause certain injuries—in this case tardive dyskinesia
(“TDk”)—then it is a possibility that a doctor’s overprescription of the drug could
indeed cause such injuries. But Texas law requires that, in medical malpractice
actions, a medical expert give an opinion about whether a doctor’s act in fact did
cause the alleged injuries. 3 To qualify as an expert, a person must demonstrate
1 Jernigan v. Langley, 195 S.W .3d 91, 93 (Tex. 2006) (stating that expert report “need not marshal every bit of the plaintiff’s evidence” but must provide a “fair summary” of expert’s opinion on standard of care, breach of that standard of care, causation, and harm). 2 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(5)(A) (Vernon Supp. 2008), § 74.401(a)(4) (Vernon 2005) (defining “expert” to mean someone qualified on the basis of training or experience to offer an expert opinion). 3 See id. § 74.351(a), (r)(6) (requiring plaintiff alleging medical malpractice claim to provide an expert report and defining “expert report” to mean a report by an expert that provides, among other things, the expert’s opinion regarding causation).
2 some knowledge beyond what a layperson would have. 4 Thus, in this case, the
expert must demonstrate some basis for knowledge about causation beyond stating
that if Reglan’s manufacturer warned that overprescription of the drug could cause
TDk, then ipso facto Dr. Collini’s overprescription of Reglan did cause Mrs.
Pustejovsky‘s TDk. 5
I agree with the majority that Dr. Haberer’s report does not show that in this
specific area, he had any knowledge beyond that of a layperson. He did not, for
example, show that he had conducted research on TDk or on Reglan. 6 Although Dr.
Haberer had knowledge that failing to heed a drug manufacturer’s warning can
cause injury, nothing in his report shows the basis for his assertion that the
4 See id. § 74.351(r)(5)(C) (“‘expert’ means . . . a physician who is otherwise qualified to render opinions on [causation] under the Texas Rules of Evidence”); Tex. R. Evid. 702 (stating that a witness may be qualified as an expert “by knowledge, skill, experience, training, or education”). 5 See Leland v. Brandal, 217 S.W .3d 60, 62–63 (Tex. App.—San Antonio 2006) (holding that anesthesiologist’s report showed he was qualified to render opinion that cessation of medicines taken by plaintiff may cause stroke but did not show his qualification to give opinion that cessation of medication did cause plaintiff’s stroke), aff’d, 257 S.W .3d 204 (Tex. 2008). 6 See, e.g., Salvato v. Angelo, No. 14-07-00784-CV, 2008 W L 961772, at *6–7 (Tex. App.—Houston [14th Dist.] Apr. 08, 2008, no pet.) (mem. op.) (holding doctor qualified to opine on negligence of defendant in prescribing anabolic steroids and causation of plaintiff’s injuries even though expert doctor was not an endocrinologist when her report provided sufficient evidence of her knowledge in connection with clinical studies prescribing and monitoring hormones in patients).
3 overprescription of the drug at issue here actually caused the alleged injuries in this
case.7
But I emphasize that the law is also clear that a medical expert is not uniformly
required to be specialized in an area to be qualified to opine on it. And an expert
need not necessarily have personal professional experience with a drug or
procedure to be qualified to give an opinion that the drug or procedure caused a
plaintiff’s alleged injuries. The expert is qualified to give an opinion on causation so
long as the expert demonstrates some “knowledge, skill, experience, training, or
education” sufficient to support the opinion. 8
The legislature did not intend to make it impossible or unjustly burdensome
for legitimate medical malpractice claims to proceed to and succeed at trial. In this
case, for example, a doctor failed to heed warnings by Reglan’s manufacturer that
its overuse can cause TDk. Three different doctors examined Mrs. Pustejovsky and
concluded that she developed TDk because of the use of Reglan. On the face of it,
this case is an excellent example of a nonfrivolous claim. Yet we are constrained
to hold that evidence of these facts alone is not good enough to allow Mrs.
Pustejovsky her day in court.
7 See Leland, 217 S.W .3d at 62–63. 8 See Tex. R. Evid. 702.
4 Statutes such as section 74.351 must be read in light of the open courts
provision of our Texas constitution. 9 The legislature did not abrogate that
constitutional protection in passing section 74.351. W e must not with our opinions
indicate a zeal to scrutinize expert reports more closely than we are required to
under the law, nor an apathy toward whether even legitimate claims are tossed out
of court; we must always remember our obligation to preserve, protect, and defend
the constitution of this state. I believe that in fulfilling that obligation, we must
explicitly limit our holding to this case to prevent its broad misapplication in other
cases.
Because the majority does not explicitly so limit the holding, I respectfully
dissent.
LEE ANN DAUPHINOT JUSTICE
DELIVERED: February 12, 2009
9 Tex. Const. art. I, § 13.