Wooten v. Samlowski

282 S.W.3d 82, 2008 Tex. App. LEXIS 5086, 2008 WL 2133072
Court of Appeals of Texas·Decided July 9, 2008·No. 10-07-00305-CV·Published·Cited by 12 cases

Opinions

OPINION

BILL VANCE, Justice.

This is a medical-negligence case pertaining to the expert report requirements of section 74.351 of the Civil Practice and Remedies Code. See Tex. Civ. PraC. & Rem. Code Ann. § 74.351 (Vernon Supp.2007). Appellant Carol Wooten sued Appellee Eberhard Samlowski, M.D., for medical negligence. Within 120 days of filing suit, Wooten served the statutorily required expert report on Dr. Samlowski. See id. § 74.351(a). Dr. Samlowski filed an objection and then a motion to dismiss, each contending that Wooten’s expert report was deficient regarding how Dr. Samlow-ski’s alleged standard-of-care breaches (negligent acts and omissions) proximately caused injury to Wooten. The trial court granted Dr. Samlowski’s motion to dismiss, but it did not expressly rule on Wooten’s alternative request for a thirty-day extension to cure any deficiencies in the report. See id. § 74.351(c). However, the order granting the motion to dismiss denied all relief not granted. We will reverse and remand.

Adequacy of Report

Applicable Law

In her first issue, Wooten asserts that the trial court erred in dismissing her suit because her report represented a good-faith effort to comply with the statutory requirement for an expert report.

When considering a motion to dismiss under section 74.351, the issue is whether the filed report represents a good-faith effort to comply with the statutory definition of an expert report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert report” is “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. PüAC. & Rem.Code Ann. § 74.351(r)(6).

In determining whether the report represents a good-faith effort, the inquiry is limited to the four corners of the report. Palacios, 46 S.W.3d at 878. We review the trial court’s decision to dismiss by the abuse-of-discretion standard. Id. at 877. “However, a trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279-80 (Tex.App.-Austin 2007, no pet.); see also In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex.2001) (“A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court’s failure to analyze or apply the law correctly is an [85] abuse of discretion.”).1

The report need only represent a good-faith effort to provide a fair summary of the expert’s opinions. Palacios, 46 S.W.3d at 878. The report does not have to marshal all of the plaintiffs proof and the plaintiff need not present evidence in the report as if it were actually litigating the merits. Id. at 879. Rather, to constitute a good-faith effort, the report must address the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff calls into question and to provide a basis for the trial court to conclude that the claims have merit. Id. at 875.

Discussion

Wooten’s expert, R. Don Patman, M.D., a Texas-licensed physician, is a 1958 graduate of the University of Texas Southwestern Medical School, where he ranked second in his class. He was board-certified in general surgery in 1966 by the American Board of Surgery and was board-certified in vascular surgery in 1983 by the American Board of Surgery. He presently is Clinical Assistant Professor of Surgery at the University of Texas Southwestern Medical School and Attending Surgeon at Baylor University Medical Center in Dallas.

After setting forth the factual basis for his knowledge of the applicable standards of care, Dr. Patman’s single-spaced, nine-page report states:

The following represents the pivotal medical facts in this case expressed in an abbreviated yet still lengthy chronological history of the care and circumstances reflected in the records that I have reviewed. Also included is a summary of my opinions regarding the applicable standard of care, the manner in which the care deviated from these standards and the causal relationship between that failure and the harm and injuries incurred by Carol Wooten.

The report then sets forth Wooten’s chronological medical history from the records that Dr. Patman had reviewed. We summarize the pertinent parts:

• On November 17, 2004, Wooten, a 31-year-old female, presented to the Walls Regional Hospital complaining of abdominal pain described as “cram-py” with increasing severity with nausea, belching, abdominal bloating, and loose stools. Dr. Samlowski, a surgeon, was consulted and assumed Wooten’s primary care. He documented that her pain was located in the right upper quadrant with radiation into the back.
•Wooten’s history revealed a prior abdominal hysterectomy and two exploratory abdominal procedures for “abdominal tumors.” She also had a history of sarcoidosis and diabetes mellitus, and she was overweight and a smoker and complained of occasional wheezing and productive cough. [86] Her physical exam did not include vital signs. Pelvic and rectal exams were not performed, and the presence or character of bowel sounds were not described. Wooten’s admitting lab studies showed a normal WBC (white blood cell) count, but her glucose was abnormal, her sodium was low, and her alkaline phosphatase was elevated. Dr. Samlowski’s impression from the history, physical exam, and lab work was “biliary colic, cholecystitis” (gallstones). His plan was to await results from an ultrasound, but he thought Wooten most likely would need a “lap-chole” (lapar-ascopic cholecystectomy, or gallbladder removal).

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Wooten v. Samlowski, 282 S.W.3d 82, 2008 Tex. App. LEXIS 5086, 2008 WL 2133072 (Tex. Ct. App. 2008).

282 S.W.3d 82 (Wooten v. Samlowski) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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