Windsor v. Maxwell

121 S.W.3d 42, 2003 WL 22026366

• Court: Court of Appeals of Texas
• Decided: October 9, 2003
• Docket: 2-01-272-CV
• Status: Published

Opinions

OPINION

DAVID L. RICHARDS, Justice (Assigned).

This is an appeal from an order granting John Maxwell, M.D.’s (“Dr.Maxwell”) motion to dismiss the medical malpractice lawsuit filed against him by appellants Beverly Windsor and Morgan Windsor (“the Windsors”). The trial court dismissed the Windsors’ suit on the ground that they failed to provide an expert report meeting the requirements of article 4590i, section 13.01(d) of the Texas Medical Liability and Insurance Improvement Act (“the Act”). See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp.2003). Because we conclude the trial court acted within its discretion in dismissing the case, we will affirm.

Factual and Procedural Background

On January 14, 1998 Beverly Windsor underwent a cerebral arteriogram (also sometimes referred to as an angiogram), a diagnostic procedure in which a catheter was inserted into her cerebral artery. Dr. Maxwell, a neuro-radiologist, was Beverly Windsor’s treating physician. The Windsors alleged in their suit that Ms. Windsor suffered an injury caused by Dr. Maxwell’s negligence when he used a wrong sized catheter during the procedure and when he failed to immediately withdraw the catheter at the onset of her nausea and vomiting. An infarction injury (tissue death) allegedly occurred when the catheter severed Ms. Windsor’s cerebral artery and penetrated her brain. The Windsors’ specific complaints were that Dr. Maxwell was negligent in failing to select an appropriate technique to perform the arteriogram, failing to obtain Ms. Windsor’s informed consent, failing to select an appropriate catheter, improperly positioning the catheter, injecting the catheter through the cerebral artery into her brain, failing to acknowledge and hon- or her withdrawal of consent during the procedure, and failing to assure proper placement of the catheter.

In connection with their claim, the Windsors provided the report of Kendall M. Jones, M.D. (“Dr.Jones”), a board-certified radiologist, pursuant to article 4590i, section 13.01(d) of the Act. We will emphasize in bold those areas of the report we deem pertinent to the causation question at issue in this appeal:

The patient has suffered the complication of an intimal injury to the left vertebral artery origin during a cerebral angiogram on 1/14/98. A subsequent MRI confirms the presence of additional cerebellar infarction (in addition to previously seen postoperative or post-hemorrhagic changes) on the left corresponding to the left vertebral artery injury.

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[T]he post-angiography report states that “multiple catheter exchanges were made to access the left vertebral [artery].” However, the number of catheter exchanges is not given. The risk of vascular injury rises with each new attempt and with prolonged procedure time, particularly after one hour of catheter use. When the vertebral artery cannot be accessed, the subclavian artery can be safely injected.

Finally, it was stated that the patient developed nausea and vomiting, and that the catheter was subsequently removed from the vertebral artery. The patient reports a delay in the removal of the catheter. Removal in such cases should be immediate, since nausea and vomiting are clear warnings of vertebral ischemia. The delay in removing the catheter is below the standard of care. In addition, the patient withdrew consent and requested termination of the procedure, and in this case the procedure should have been terminated immediately. The patient has reported that consent was withdrawn to the procedure and that the procedure continued despite such withdrawal of consent, with subsequent infarction documented above. The fact that the patient withdrew consent and the procedure continued with subsequent complications, is indicative that the actions by Dr. Maxwell did indeed fall below the standard of care.

The appropriate standard of care for a cerebral angiogram would be to immediately remove a cerebral catheter at the onset of nausea and vomiting, which are indicative of vertebral ischemia. In addition, it is the standard of care to discontinue a procedure when the patient has verbally withdrawn consent. It is therefore, my opinion that Dr. Maxwell fell below the standard of care exercised by a reasonable and prudent radiologist in similar circumstances. [Emphasis added.]

At the conclusion of the hearing on Dr. Maxwell’s motion to dismiss, the trial court made the following statement in connection with its order granting the motion: “Plaintiffs’ Expert Report failed to meet the requirements of Art. 4590i, § 13.01(r)(6) by failing to provide the causal relationship between the alleged failure and the injury, harm or damages claimed.”

The Windsors present three issues on appeal: (1) the trial court erred in granting Dr. Maxwell’s motion to dismiss on the basis that their expert report failed to provide the causal relationship between the alleged failure and the injury; (2) the trial court abused its discretion in granting Dr. Maxwell’s motion to dismiss because the expert report correctly informed Dr. Maxwell of the specific conduct the Windsors called into question and because the report provided a basis to conclude the Windsors’ claims have merit; and (3) the trial court erred in granting the motion to dismiss because there was sufficient evidence supporting the Windsors’ claims of assault and battery, which involved matters of common knowledge by laymen, thus removing the requirement of compliance with any medical malpractice statute.

Expert Reports Under The Act

We begin our analysis with a review of the Act’s requirements. Medical-malpractice plaintiffs must provide each defendant physician and health care provider an expert report with the expert’s curriculum vitae. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d); Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). The report must provide “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.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). If a plaintiff timely files an expert report and the defendant moves to dismiss a claim because of the report’s inadequacy, the trial court must grant the motion “only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in subsection (r)(6) of this section.” Id. § 13.01(0.

The supreme court analyzed these statutory requirements in Palacios, 46 S.W.3d at 877-80. There the court explained that, when considering a motion to dismiss under section 13.01(Z), “[t]he issue for the trial court is whether ‘the report’ represents a good-faith effort to comply with the statutory definition of an expert report.” Id. at 878. To constitute a “good-faith effort,” the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Id. at 879.

The trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document’s four corners. Id. at 878. The report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on each of the three elements that the Act identifies: standard of care, breach, and of critical import to the instant appeal, the causal relationship. Id. A report cannot merely state the expert’s conclusions about these elements. Id. at 879. “[Rjather, 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).

We review a trial court’s order dismissing a claim for failure to comply with section 13.01(d)’s expert-report requirements under an abuse of discretion standard. Palacios, 46 S.W.3d at 878. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985) cert. denied, 476 U.S. 1159 (1986). When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989)(orig.proceeding).

The Challenge To The Windsors’ Report

Dr. Maxwell did not dispute that the expert report fairly summarized the alleged standard of care. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). Nor did he dispute that the report fairly summarized how he allegedly breached the standard of care. See id. Dr. Maxwell only contested in the trial court whether the report fairly summarized the causal relationship between his alleged breach and Ms. Windsor’s injury. See id.; Palacios, 46 S.W.3d at 879.

Citing the supreme court’s recent decision in Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002), Dr. Maxwell contends that the trial court acted within its direction in determining that the report faded to reflect the causal link required by the Act.

In Wright, the plaintiff suffered fractures in her right knee and foot in a car accident and sued for damages when the Bowie Memorial Hospital physician’s assistant who took her x-rays either misplaced or misread the foot x-ray and, therefore, did not discover the fracture in the right foot. Id. at 50. The fracture was discovered a month later and required the plaintiff to undergo two surgeries over ten months. Id. The plaintiff complained that if the physician’s assistant had diagnosed her fractured foot earlier she “probably would have had a better outcome.” Id. at 51. To establish a causal relationship between her breach of the standard of care and her injury, the plaintiff relied on one statement in her expert report: “if the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then [plaintiff] would have had the possibility of a better outcome.” Id. at 52-53. The plaintiff contended that this statement “explains why [plaintiffs] damages were caused by [defendant’s] breach.” Id. at 53.

The supreme court held that the report’s conclusory statement that the plaintiff might have had “the possibility of a better outcome” did not constitute a good faith effort to comply with the statute’s causation requirement because it did not provide information linking the expert’s conclusion that the plaintiff might have had a better outcome to the defendant’s failure to correctly read and act upon the x-rays, i.e., the report failed to explain how the defendant’s conduct caused further injury to the plaintiff. Id. The court viewed the report as conclusory and held “[a] conclu-sory report does not meet the Act’s requirements, because it does not satisfy the Palacios test.” Id.

No Causal Link Between The Injury And The Alleged Use Of A Wrong Sized Catheter

The Windsors claim in their pleadings that Dr. Maxwell was negligent in failing to select an appropriate sized catheter for the arteriogram procedure. Nothing in Dr. Jones’ report indicates the catheters used in the procedure were of an inappropriate size or that the size selection in any manner caused Ms. Windsor’s injury. Dr. Jones merely noted that “multiple catheter exchanges were made” and that the “risk of vascular injury rises with each new attempt and with prolonged procedure time.” Dr. Jones also noted that he was unaware of the number of catheter exchanges made during the procedure. Lacking any connection between the inti-mal injury and the Windsors’ pleaded cause of action alleging use of a wrong sized catheter, we cannot say the trial court abused its discretion in granting Dr. Maxwell’s motion. See Wright, 79 S.W.3d at 53.

No Causal Link Between The Injury And The Alleged Failure To Timely Withdraw The Catheter

In addition to claiming Dr. Maxwell used an inappropriate sized catheter, the Windsors also alleged in their pleadings that Dr. Maxwell used an improper “technique” during the arteriogram and that he breached the requisite standard of care when he continued with the procedure after Ms. Windsor withdrew consent.

Dr. Jones stated in his report that arterial injuries, including intimal injury, are known complications of cerebral angiogra-phy, but he never set forth in the report a causal connection between the technique chosen by Dr. Maxwell, his failure to discontinue the procedure immediately upon Ms. Windsor’s request, and the intimal injury she suffered. The Texas Supreme Court has stated that the report’s adequacy does not depend on whether the expert uses any particular “magical words.” Wright, 79 S.W.3d at 53. It is sufficient that the report contains information summarizing and explaining the causal relationship between the doctor’s failure to meet the applicable standards of care and the plaintiffs injury. Id. Here, however, the closest Dr. Jones came to voicing an opinion on the issue of causation is contained in one sentence of the report: “[t]he patient has reported that consent was withdrawn to the procedure and that the procedure continued despite such withdrawal of consent, with subsequent infarction documented above.”

We believe there are at least two reasons why the trial court, in its discretion, could have properly concluded this sentence was insufficient to explain the requisite casual connection between the injury and Dr. Maxwell’s conduct. First, it is not clear from the final clause of the sentence that Dr. Jones was even attempting to insinuate that he believed a casual connection existed between the failure of Dr. Maxwell to immediately end the arteri-ogram and the intimal brain injury. The sentence can reasonably be read as only relating that Ms. Windsor had “reported” two things to Dr. Jones: (1) she withdrew consent during the procedure; and (2) the procedure continued, with subsequent infarction (tissue death). In other words, the sentence could reasonably be interpreted as intending to mean only “the patient told me that she withdrew consent and told me that the infarction occurred after Dr. Maxwell refused to honor that request.” Under this interpretation, it cannot be inferred from the report that Dr. Jones or Ms. Windsor believed the injury was caused by Dr. Maxwell’s failure to immediately withdraw the catheter. A mere statement by the patient that her injury followed the withdrawal of consent does not suffice to establish the explanation of causation requirement for reports under the Act. See Ratliff, 998 S.W.2d at 890 (noting the expert must explain the basis of “his statements” linking “his conclusions” to the facts).¹

The dissent apparently misunderstands the import of this analysis. We do not mean to suggest that when drafting the report a plaintiffs medical expert cannot make logical inferences from statements made to the expert by the plaintiff or that the plaintiff must “prove a fact”here that the infarction occurred after withdrawal of consent; only that the Act requires that the causal connection in the report be set forth and explained by the expert doctor. In other words, a report would not be sufficient under the Act if, on the question of causation, the doctor merely stated “the patient told me that the defendant physician caused her injury,” because the Act requires an explanation linking the basis of the expert’s conclusions to the facts. See Ratliff, 998 S.W.2d at 890. Nor would a report be sufficient if it merely states, as related here, that the injury followed the act. Here, evidence that the infarction occurred after the catheter remained in the artery does not establish that maintaining the catheter in the artery caused the artery to be pierced, much less explain that causation, as required by the Act.²

To the extent the sentence might alternatively be read to infer that what Dr. Jones was really attempting to articulate is a conclusion that there existed a casual connection between the injury and the failure to immediately cease the procedure following withdrawal of consent, we must honor the Texas Supreme Court’s directive that trial court orders granting dismissals under the Act be reviewed under an abuse of discretion standard, under which reviewing courts are not to interpret the report in the light most favorable to the nonmovant (here, the Windsors), but instead look to whether the trial court acted in an unreasonable manner without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52-53; see also Palacios, 46 S.W.3d at 877 (directing reviewing courts not to indulge in reasonable inferences in favor of the nonmovant). Therefore, even if a reasonable inference might be drawn that Dr. Jones was really attempting to articulate in the sentence in question a conclusion on causation, we do not hold the trial court acted unreasonably and without reference to any guiding principles in failing to draw that inference.

Even had the trial court inferred from the report that Dr. Jones believed Ms. Windsor’s intimal injury was caused by Dr. Maxwell’s failure to end the procedure upon withdrawal of her consent, Dr. Jones’ statement “[t]he patient has reported that consent was withdrawn to the procedure and that the procedure continued despite such withdrawal of consent, with subsequent infarction documented above[,]” at best, amounts to only a mere conclusion on causation because it does not explain how continuance of the procedure caused the infarction. In order for his report to establish the requisite casual link, Dr. Jones was required to explain, in some manner, how the failure to immediately withdraw the catheter caused the injury. See Wright, 79 S.W.3d at 52. A conclusory report does not meet the Act’s requirements, because it does not satisfy the Palacios test. Id. (citing Palacios, 46 S.W.3d at 879). We therefore hold the trial court acted within its discretion in dismissing the Windsors’ claim.³

The dissent concludes that Dr. Jones’ report was sufficient to establish a causal link between Dr. Maxwell’s conduct and a general injury to the cerebellum caused by “reduced blood flow through the artery being catheterized.” One problem with this conclusion is that the Windsors have not alleged a general injury caused by reduced blood flow through the artery being catheterized. Instead, the Windsors allege that Ms. Windsor’s brain infarction injury was caused when Dr. Maxwell, using a wrong sized catheter, “pierced her cerebral artery with the catheter during the procedure” and that he “forced the catheter too far severing the cerebral artery” and entering her brain.⁴ Another problem with the dissent’s analysis is that even if the Windsors had pleaded the injury the dissent believes was described in Dr. Jones’ report, the report does not explain, in any manner, a causal link between Dr. Maxwell’s conduct and the injury.

The dissent’s belief that the expert report need not support the specific theory of negligence alleged in a plaintiffs written pleadings is based on a misinterpretation of the language in Palacios providing that “the only information relevant to the [trial court’s] inquiry is within the four corners of the document.” Palacios, 46 S.W.3d at 878. That statement was made by the Texas Supreme Court in connection with its analysis of an argument that the trial court should be required to look to other evidence outside the report in the event it concludes the report does not provide the fair summary required under the Act, an idea the court squarely rejected. The court clearly did not mean to suggest by this language that the trial court was required to ignore the plaintiffs pleadings when conducting its review of the doctor’s report, particularly in light of the court’s subsequent notation in Palacios that “the report must inform the defendant of the specific conduct the plaintiff has called into question.” Id. at 879. To inform the defendant of the specific conduct the plaintiff has called into question, the report must support the cause of action alleged by the plaintiff in its pleadings. To hold otherwise would lead to easily imagined absurd results. Issues one and two are overruled.

The Windsors’ Remaining Theories Of Negligence

To the extent that the Windsors’ remaining pleaded acts of negligence (failure to use an appropriate technique, improperly positioning the catheter, improper penetration of the catheter, and failure to assure proper placement of the catheter) constitute theories of negligence outside the theories discussed above, the trial court’s dismissal for non-compliance with the Act’s causation explanation is wholly supported. Nowhere in the expert report tendered by the Windsors are those theories of negligence addressed.

We do not reach the merits of the Windsors’ argument in issue three that an assault and battery claim need not be supported by an expert report under the Act because, as correctly noted by Dr. Maxwell on appeal, the Windsors did not plead a cause of action for assault and battery. Issue three is overruled and the trial court’s judgment is affirmed.

WALKER, J. filed a dissenting opinion.

1 . The dissent is incorrect in its heavy reliance on certain words it culls from one sentence of Dr. Jones' report, which the dissent then stretches to arrive at a meaning that the trial court, acting within its discretion, was clearly not required to join. The dissent would require the sentence "[t]he fact that the patient withdrew consent and the procedure continued with subsequent complications, is indicative that the actions by Dr. Maxwell did indeed fall below the standard of care [,]” to be interpreted not only as a statement going to the standard of care, but also as a statement that explained the causal connection between alleged mid-procedure withdrawal of consent and the injury suffered by Ms. Windsor. We believe the trial court would have acted within its discretion in concluding that Dr. Jones was describing, in this sentence, the breach of the standard of care requirement, not explaining the issue of causation. The dissent’s analysis of this sentence improperly attempts to review the evidence in the light most favorable to the non-prevailing party, rather than accord the trial court the benefit of its discretion. See Palacios, 46 S.W.3d at 877 (directing reviewing courts not to indulge in reasonable inferences or resolve doubts in the nonmovant’s favor, but instead provide deference to the trial court’s decision).

2 . At one point the dissent declares that Dr. Jones' opinion was that Dr. Maxwell’s negligence in refusing to halt the procedure "caused" a subsequent infarction; at another, the dissent declares that Dr. Jones’ report summarized that "because ” Dr. Maxwell refused to stop the procedure, there was inadequate blood flow through the cerebellum. No such language (nor any similar language) is contained in the report. Only through the use of inferences contrary to the trial court’s ruling can the dissent’s position be maintained.

3 . It is also noteworthy that the trial court provided the Windsors the opportunity to provide an amended report to cure the missing explanation of causation, but that the Windsors filed an amended report that did not do so. After Dr. Maxwell moved for dismissal on several grounds, including the ground that Dr. Jones’ expert report did not adequately explain how Dr. Maxwell’s conduct caused the injury, the trial court gave the Windsors an additional 30 days “to provide a sufficient written report.” Upon the expiration of the 30-day period, with the record still absent an explanation by an expert of how Dr. Maxwell’s conduct caused the injury, the trial court dismissed the suit.

4 . The infarction (tissue death due to inadequate blood supply) the Windsors alleged to have occurred was brain tissue damage they pleaded was caused by the catheter penetrating the brain. In support of that claim, the Windsors' appellate attorney stated during oral argument that the infarction injury noted by Dr. Jones in his review of the MRI "was the result of the catheter ... being pushed through the artery ... into the white matter of her brain.” The attorney further noted that Dr. Jones describes "a left anterior/inferi- or parietal infarct which is the path that the catheter went through into the white brain matter.” The dissent implicitly disagrees with the Windsors' analysis and concludes, without any support in the pleadings, that Dr. Jones was actually describing an injury that occurred when the catheter remained too long in the artery and blocked the necessary blood flow, causing tissue death in the area served by the artery above the blockage.