Ching-Chiang Chu, M.D. Thomas Jackson Cartwright, M.D. And K.S.F. Orthopaedic Center, P.A. v. Jerry Robert Fields, Myrna Fields, Individually and A/N/F of Brittain Taylor Fields and Emily Brooks Fields

Opinion issued January 8, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00417-CV ____________ CHING-CHIANG CHU, M.D.; THOMAS JACKSON CARTWRIGHT, M.D.; AND K.S.F. ORTHOPAEDIC CENTER, P.A., Appellants V. JERRY ROBERT FIELDS, MYRNA FIELDS, INDIVIDUALLY AND A/N/F OF BRITTAIN TAYLOR FIELDS AND EMILY BROOKS FIELDS, Appellees On Appeal from the 215th Judicial District Court of Harris County, Texas Trial Court Cause No. 2007-46354 MEMORANDUM OPINION This is an interlocutory appeal from the trial court’s refusal to dismiss a lawsuit after it determined a medical expert report was adequate. Dr. Thomas Jackson Cartwright and K.S.F. Orthopaedic Center, P.A. (collectively “Cartwright”) and Dr. Ching-Chang Chu appeal from an order denying their motions to dismiss the claims filed by appellees, Jerry Fields, Myrna Fields, Individually and A/N/F of Brittain Taylor Fields and Emily Brooke Fields (collectively “the Fieldses”). In a sole issue, Chu and Cartwright each assert that the trial court abused its discretion by finding the expert report filed by the Fieldses was an objective, good-faith effort to comply with the requirements of the Texas Civil Practice and Remedies Code. We conclude the trial court erred by finding the report met the requirements for medical expert reports. We therefore reverse the trial court’s order refusing to dismiss the lawsuit and remand. Background For several months, Jerry Fields (“Fields”), who was 36 years of age, was evaluated for headache complaints by Cartwright at K.S.F. Clinic. On June 28, 2005, Fields told Cartwright he felt pain throughout his body, with numbness, tingling and loss of balance. Cartwright referred Fields to Chu, a neurologist, for a neurological evaluation. Chu saw Fields once, on July 12, 2005. Chu recorded in Fields’s chart that Fields was there for consultation for headaches that began about two years ago and had recently gotten worse. The headaches were severe and frequent, causing Fields to awaken from sleep. Fields also reported frequent dizziness. Chu scheduled an MRI to take place the same week. Two days after his appointment with Chu, Fields went to a hospital emergency room after passing out on the kitchen floor. An emergency CT revealed a “mixture of parenchymal and subarachnoid blood anteriorly.” Fields was then urgently transferred to another hospital, where he underwent surgery for a subarachnoid hemorrhage. The Fieldses brought suit against Chu and Cartwright, filing the expert opinion of Dr. Levine within 20 days of the original petition. Chu and Cartwright timely filed motions to dismiss, objecting to the adequacy of the report. After a hearing, the trial court found Levine’s report insufficient and granted a 30-day extension to cure the deficiency. When the Fieldses filed Levine’s amended report, Chu and Cartwright again timely filed motions to dismiss based on a complaint about the adequacy of the report. The trial court denied the motions to dismiss. Waiver The Fieldses assert that Chu and Cartwright waived any objections to Levine’s report by participating in discovery. However, the Fieldses did not present this complaint to the trial court. Because the Fieldses never obtained an adverse ruling on this matter from the trial court, they have not preserved this issue for appellate review. See Tex. R. App. Proc. 33.1; De Mino v. Sheridan, 176 S.W.3d 359, 373 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Requirements for Review of Expert Report Appellate review of an expert report requires examination of the standard of review for review of the trial court’s decision and the applicable law that sets forth the requirements for the report. A. Standard of Review We review a trial court’s decision on a section 74.351(b) motion to dismiss for an abuse of discretion. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(b) (Vernon Supp. 2007); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (citing predecessor statute); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray, 189 S.W.3d at 858. However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.—Dallas 2007, pet. filed). B. The Statutory Requirements Within 120 days of filing an original petition in a healthcare liability claim, the plaintiff must provide the defendant with an expert report representing an objective, good-faith effort to comply with the statutory definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2007); Palacios, 46 S.W.3d at 878. The definition requires “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. Prac. & Rem. Code Ann. 74.351(r)(6) (Vernon Supp. 2008). If a plaintiff timely files an expert report and the defendant moves to dismiss because of the report’s inadequacy, a trial court must grant the motion “only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).” Id. § 74.351(l). The only information relevant to our inquiry is within the four corners of the report. Palacios, 46 S.W.3d at 878. 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. Id. In setting out the expert’s opinions on each of those elements, the report must provide enough information to fulfill two purposes to constitute a good faith effort. Id. at 879. First, the report must inform the defendant of the specific conduct that the plaintiff has called into question. Id. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. Id. A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id. Rather, the expert, in his report, must explain the basis of his statements to link his conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). Also, a report cannot meet these purposes and constitute a good faith effort if it omits any of the statutory requirements. Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (per curiam). However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. Palacios, 46 S.W.3d at 879. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary judgment proceeding at trial. Id. When a plaintiff sues more than one defendant, the expert report must set forth the standard of care for each defendant and explain the causal relationship between each defendant’s individual acts and the injury, i.e., “[c]ollective assertions of negligence against various defendants are inadequate.” Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); see CHCA Mainland L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2007, no pet.). This includes a hospital if a plaintiff is alleging that the hospital itself was directly negligent, rather than just alleging that the hospital was liable due to vicarious liability. Biggs, 237 S.W.3d at 912, 919 (Tex. App.—Dallas 2007, pet. filed) (finding that reports did not satisfy required elements of expert report when hospital sued for malpractice); Burkhalter, 227 S.W.3d at 224, 227 (holding that report did not satisfy required elements of expert report when hospital sued for negligence). But see Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.) (concluding that plaintiffs need not mention hospital in expert report when plaintiffs limited their claim against hospital to vicarious liability for employees). C. Law Concerning Standard of Care and Breach of Standard of Care An expert report must give “a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care.” Tex. Civ. Prac. & Rem. Code Ann. 74.351(r)(6) (Vernon Supp. 2008). Identifying the standard of care is critical: whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880. While a “fair summary” is something less than a full statement of the applicable standard of care and how it was breached, a fair summary must set out what care was expected, but not given. Id. D. Law Concerning Causation The report must give the causal relationship between the doctor’s failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. 74.351(r)(6) (Vernon Supp. 2008). Causation is established when “the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex. 1993). The Expert Report Concerning Chu Chu challenges the adequacy of the report to state a standard of care and causation. A. Standard of Care Chu asserts the standard-of-care opinions are vague and not identified. Chu contends the report “does not identify what proper treatment or assessment is with respect to what Dr. Chu should have done.” Chu also challenges the report’s references to “care in an urgent care setting and emergency room presentation” by pointing out that Chu never saw Fields in an emergency room or urgent care setting. Levine’s report contains a section entitled “The Standard of Care for Dr. Chu as it Applied to Mr. Fields on 7/12/05.” The report lists six areas, labeled a through f, purporting to describe what the standard of care was for Dr. Chu. The report states that the standard of care Chu should have met was to have: a.Performed a proper, thorough, successful and immediate assessment of Mr. Fields’ headache complaints (see American Academy of Neurology 1994, American College of Emergency Physicians 1996, Cinch 2001, the US Headache Consortium 2001, Jagoda et al 2002, Wears 2002, Aygun and Bildik 2003, and Peters 2004) as Mr. Fields’ headaches were progressing and worsening b.Performed a proper, thorough, successful and immediate treatment of Mr. Fields’ headache complaints c.Performed a proper, thorough, successful and immediate assessment of Mr. Fields’ recent neurological changes as it was the nature of these recent neurological changes that otherwise prompted Dr. Cartwright to refer Mr. Fields for a neurological consultation with Dr. Chu d.Performed a proper, thorough, successful and immediate treatment of Mr. Fields’ recent neurological changes e.Recorded the succinct details of Mr. Fields’ history of arterial hypertension and f.Recorded Mr. Fields’ blood pressure value(s) on 07/12/05. Although the report lists six areas that purport to state the standard of care for Chu, four of those areas are inadequate in that they do not refer to any specific conduct that Chu was to perform. In a, b, c, and d, the report says Chu should have given care that was “proper, thorough, successful and immediate.” The report fails to include specific information about what care Chu was expected to give. See Palacios, 46 S.W.3d at 879 (holding report must inform defendant of specific conduct plaintiff has called into question); see also Norris v. Tenet Houston Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, *7 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (finding standard-of-care opinion insufficient when report stated what defendant should have known but not what defendant should have done). The trial court therefore abused its discretion if it determined that a reference to care as “proper, thorough, successful and immediate” was sufficient to state a standard of care. See id. The remaining two areas in the report are sufficient to describe a standard of care by stating that Chu should have recorded “succinct details of Mr. Fields’ history of arterial hypertension” and “recorded Fields’ blood pressure value(s) on 07/12/05.” We therefore turn to whether the report establishes causation for Chu’s failure to record the details of Field’s blood pressure on a single day and the history of hypertension. B. Causation Chu asserts that Levine’s causation opinions are vague, speculative, and conclusory. Chu contends Levine’s causation opinions fail to establish “but for” the acts of Chu, Field’s injuries would not have occurred. The report does not show how Chu’s failure to record the details of Field’s blood pressure on a single day and to record the history of hypertension caused Field’s injury. See Costello v. Christus Santa Rosa Health Care, Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.) (holding report inadequate to show how medical provider’s “failure to act was a substantial factor in bringing about” injury since it offered “no explanation of what medical information a more timely triage and evaluation would have revealed, nor does he state what would have been done had Christus not failed to act, what treatment would have or could have been available, that the patient was a candidate for the unknown treatment, or that the unknown treatment could have or would have been effective”). We conclude the report does not show causation for the injuries to Fields based on the standard of care Levine states that Chu should have met. See id. Levine’s report does not have any section specifically describing causation, although he does have sections specifically stating the standard of care and breach of standard of care. Because there is no section that directly discusses causation, we have examined the entire report for any statements that the trial court could have determined were sufficient to show causation. Levine says Chu breached the standard of care in that Chu did nota. Assure that Mr. Fields’ headaches were immediately and successfully diagnosed in terms of etiology for his headache complaints (1) Dr. Chu was required to perform an immediate review of the actual head CT scan images previously obtained, either by himself or with a Radiologist or Neuroradiologist, as said review would have, more likely than not, revealed succinct findings of a symptomatic-yet-unruptured intracranial aneurysm (2) After said immediate review, Dr. Chu was then required to have arranged for Mr. Fields’ [sic] to be further studied with an immediate (“stat’) set of new brain images =A “stat” head CT scan with CT angiographic images of brain arteries =Or a “stat” head MRI scan with MR angiographic images of brain arteries =Or a “stat” catheter-driven cerebral angiogram (3) Or and if Dr. Chu did not have immediate access to the previously-obtained head CT scan images, he was then required to have arranged for Mr. Fields to be further studied with an immediate (“stat”) set of new brain images =A “stat” head CT scan with CT angiographic images of brain arteries =A “stat” head MRI scan with MR angiographic images of brain arteries =Or a “stat” head CT scan-plus-a “stat” catheter-driven cerebral angiogram b. Assure that Mr. Fields’ headaches were immediately and successfully treated (1) An immediate diagnostic evaluation, as outlined above, would have succinctly lead to an immediate diagnosis of an unruptured intracranial aneurysm (2) After said diagnosis was immediately made, Dr. Chu was then required to have arranged for Mr. Fields to have been immediately (“stat”) seen in Neurosurgical consultation (3) Said consultation would have directly lead to either an immediate craniectomy, an immediate endovascular s [sic] surgery, or both (4) Said surgical procedure or combined surgical procedures, while carrying a very small risk of peri-operative complication, would then have directly allowed Mr. Fields to remain, much more likely than not, stroke-free . . . . 4. Further and in relation to the substandard care provided by Dr. Chu: a. By failing to comply with the necessary standard of care as outlined above and specifically by failing to properly and immediately diagnose and properly and immediately treat or refer for immediate treatment of Mr. Fields’ changing headache condition, Dr. Chu, more likely than not, caused Mr. Fields’ unruptured intracranial aneurysm to remain undiagnosed and untreated b. Because Mr. Fields’ soon-to-rupture aneurysm was not diagnosed in a timely manner, said aneurysm ruptured and caused the development of both a subarachnoid as well as intraparenchymal brain hemorrhage. Even if we assume that the trial court looked to other parts of the report for an implicit statement on the standard of care since the section on standard of care was deficient for the reasons we have noted above, our decision remains the same. For example, in the section describing the breach of the standard of care, Levine discusses what Chu’s standard of care should have been by stating that Chu “was required to perform an immediate review of the actual head CT scan images previously obtained . . . [o]r and if Dr. Chu did not have immediate access to the previously-obtained head CT scan images, he was then required to have arranged for Mr. Fields to be further studied with an immediate (“stat”) set of new brain images.” According to the report, “an immediate diagnostic evaluation, as outlined above, would have succinctly lead to an immediate diagnosis of an unruptured intracranial aneurysm,” which would then have required Chu “to have arranged for Mr. Fields to have been immediately (“stat”) seen in Neurosurgical consultation,” which “consultation would have directly lead to either an immediate craniectomy, an immediate endovascular s [sic] surgery, or both,” which “would then have directly allowed Mr. Fields to remain, much more likely than not, stroke-free.” Although this section discussing the breach of the standard of care contains some details about the standard of care, it fails to show how Chu caused Fields’s injuries. The report does not show how, within the two days between when Chu saw Fields and the time Fields passed out, Chu could have obtained CT scans and arranged for Fields to have a neurosurgical consultation. Moreover, the report assumes that a neurological consultation would be obtained within two days and that the neurologist would find the injury and operate before the time Fields passed out. The report is conclusory and speculative in that it assumes successful diagnosis and treatment by neurological and surgical intervention by unknown physicians. See Jones v. King, 255 S.W.3d 156, 159–60 (Tex. App.—San Antonio 2008, pet. denied) (finding expert’s causation opinion conclusory because report did not explain how breach caused injuries or state that injuries would not otherwise have developed). We conclude the report does not show causation for the injuries to Fields based on the standard of care Levine states that Chu should have met. See id. We hold the trial court erred by determining that the report met the requirements for medical expert reports. See id. We sustain Chu’s sole issue. The Expert Report Concerning Cartwright Cartwright challenges the adequacy of the report to state causation by asserting it is conclusory as to causation and fails to establish “but for” the acts of Cartwright that Fields’s injuries would not have occurred. Levine’s report does not have any section that directly addresses how Cartwright’s actions caused Fields’s injuries, although is does have separate sections describing standard of care and breach of standard of care. Because no section of the report directly addresses causation, we examine the entire report for any statement the trial court could have determined showed causation. In the section that discusses breach of the standard of care by Cartwright, Levine determined Cartwright failed to a.Assure that Mr. Fields’ risk of stroke, by immediately recognizing his changed neurological status, was minimized b.Assure that Mr. Fields’ risk of stroke, by immediately arranging for a “stat” neurological consultation, was minimized and c.Assure that Mr. Fields’ risk of stroke, by recording his blood pressure values and if elevated by assisting Mr. Fields in immediate treatment of his elevated blood pressure readings, was minimized. The report next states that Standard and successful recognition of this necessary change in Mr. Fields’ neurological status would then have, more likely than not, prevented his July 2005 ‘frank’ brain hemorrhage as his unruptured intracranial aneurysm would have been both diagnosed as well as successfully treated Levine later gives a summary of his opinions by stating, . b. To have remained, more likely than not, stroke-free and brain injury-free, Mr. Fields’ yet-unruptured intracranial aneurysm would have either been treated by the appropriate neurosurgeon (with a one-time 3-4% perioperative risk for ‘open’ aneurysm clipping) or by the appropriate endovascular surgeon (with a one-time 2-3% perioperative risk for catheter-driven, coil-embolization of his intracranial aneurysm) c. To have remained, more likely than not, neurologically normal, an immediate and appropriate diagnosis of Mr. Fields’ changing headache condition would have been necessary as, otherwise, his risk of an eventual subarachnoid hemorrhage remained as high as 4-5% per year d. To have remained, more likely than not, neurologically normal and stroke-free, Mr. Fields’ arterial hypertension would have been continually and successfully treated in a [sic] effort to eliminate this as one of his putative stroke risk factors Nowhere in his report does Levine explain how Cartwright’s breach caused Fields’s injuries. Levine simply states that if Cartwright had recognized a change in Fields’s neurological status, Fields would have been correctly diagnosed and “successfully” treated. Levine’s opinion is conclusory because he does not state how Cartwright’s recognition of a change would have led to a correct diagnosis and successful treatment. See Jones, 255 S.W.3d at 159–60; Craig v. Dearbonne, 259 S.W.3d 308, 313 (Tex. App.—Beaumont 2008, no pet. h.) (finding expert’s causation opinion conclusory because statements of causation were not linked to facts). We conclude that Levine’s report provides only a conclusory explanation of causation as to Cartwright. We therefore hold that the report does not represent a good-faith effort to comply with the requirements of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(1). We sustain Cartwright’s sole issue. Conclusion We sustain the sole issue in this appeal. We reverse the trial court’s order denying the motions to dismiss, and remand this case to the trial court to award Chu and Cartwright any reasonable attorney’s fees and costs of court and to dismiss with prejudice the Fieldses’ claims against Chu and Cartwright. See id. § 74.351(b). Elsa Alcala Justice Panel consists of Justices Taft, Keyes, and Alcala.