Susan Kay Craig and Mid County Family Physicians Associates, L.L.P. v. Thomas Dearbonne, Individually and as Wrongful Death Beneficiary of Betty Dearbonne

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-08-00435-CV _____________________ SUSAN KAY CRAIG AND MID COUNTY FAMILY PHYSICIANS ASSOCIATES, L.L.P., Appellants V. THOMAS DEARBONNE, INDIVIDUALLY AND AS WRONGFUL DEATH BENEFICIARY OF BETTY DEARBONNE, Appellee On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-178,682 MEMORANDUM OPINION This appeal involves the adequacy of an expert report in a healthcare liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon 2008). We affirm the trial court's order denying appellant's motion to dismiss. Thomas Dearbonne, individually and as wrongful death beneficiary of Betty Dearbonne, sued appellants Susan Kay Craig, M.D. and Mid County Family Physicians Associates. Plaintiff alleged in his petition that Betty was admitted to Mid-Jefferson Hospital on January 25, 2005, after visiting the emergency room with complaints of difficulty breathing, pleuritic pain, fever, and chills. According to plaintiff's petition, Dr. Craig noted at that time that Betty had a several-week history of upper respiratory infection and shortness of breath, and she diagnosed Betty with right-sided pneumonia. The petition further alleged that Betty's condition deteriorated after she was admitted to the hospital, and that a cardiologist subsequently diagnosed her with arterial occlusion and Acute Respiratory Distress Syndrome (ARDS). Betty Dearbonne died on February 2, 2005. Plaintiff alleges that appellants' negligence proximately caused Betty's death, and plaintiff seeks damages under the Texas Wrongful Death Act. Plaintiff filed an expert report by Lige B. Rushing, Jr., M.D. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Appellants filed a motion to dismiss challenging Dr. Rushing's qualifications and arguing that the report's statement of causation was conclusory. The trial court denied the motion and appellants filed an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). This Court reversed that order and remanded the case to the trial court for consideration of whether to permit a thirty-day extension to cure deficiencies in the report. Craig v. Dearbonne, 259 S.W.3d 308, 313 (Tex. App.--Beaumont 2008, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2008); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008). The trial court granted the extension, and plaintiff timely presented a supplemental report. Appellants filed a second motion to dismiss. The trial court denied the motion, and appellants filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). A plaintiff asserting a healthcare liability claim must provide an expert report to each defendant physician or healthcare provider against whom he asserts a healthcare liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). The expert report must provide a fair summary of the expert's opinions, as of the date of the report, on the applicable standards of care, the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6) (Vernon Supp. 2008). The report must discuss the three elements with sufficient specificity to inform the defendant of the conduct the plaintiff has questioned, and to provide a basis for the trial court to conclude the claims are meritorious. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). The report need not marshal all of the plaintiff's proof, but must include the expert's opinion on each of the statutory elements. Id. at 878. The trial court shall grant a motion challenging an expert report's adequacy "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)." Tex. Civ. Prac. & Rem Code Ann. § 74.351(l). The court limits its adequacy inquiry to the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Palacios, 46 S.W.3d at 878. The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52. A witness may be qualified as an expert on the issue of whether a physician departed from standards of medical care only if the person is a physician who: (1) is practicing medicine at the time of the testimony or at the time the claim arose; (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. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A) (Vernon Supp. 2008); § 74.401(a) (Vernon 2005). In deciding whether a witness is qualified on the basis of training or experience, a trial court must consider whether, at the time the claim arose or at the time the testimony is given, the witness: "(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." Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c) (Vernon 2005). To express expert opinion testimony on causation in healthcare liability cases against physicians, the expert must be a physician and "otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence[.]" Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(C) (Vernon Supp. 2008). Under the Texas Rules of Evidence, a witness must have knowledge, skill, experience, training, or education regarding the specific issue before the court. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996); see also Tex. R. Evid. 702. In his initial report, Dr. Rushing opined "that the most likely sequence of events in this case based on reasonable medical probability is that [Betty] actually died from pneumonia, congestive heart failure, sepsis and adult respiratory distress syndrome." In his supplemental report, Dr. Rushing provided an explanation as to what treatment would have prevented Betty's death and how the failure of Dr. Craig to provide proper treatment, in reasonable medical probability, was a cause of Betty's death. In issue one, appellants maintain the trial court abused its discretion in finding that there is a sufficient factual basis for Dr. Rushing's causation opinion that, but for the alleged negligence of Dr. Craig, Betty would have received certain treatments from pulmonology and cardiology specialists that would have identified the cause of her medical complications and prevented her death. In issue two, appellants argue the trial court abused its discretion in finding Dr. Rushing's report provided a sufficient basis for the court to conclude there is merit to appellee's claim that different care by appellants would have cured Betty. We address issues one and two together. (1) Dr. Rushing's report states that the standard of care required that Dr. Craig examine Betty on a daily basis after her admission to the hospital on January 25, 2005. He stated the examination should, at the least, include an examination of Betty's lungs. He noted that Dr. Craig did not examine Betty at all on January 26, 2005, and nothing indicates she examined Betty's lungs on January 27, 2005. Dr. Rushing noted that according to medical records, there is no documentation that Dr. Craig listened to Betty's lungs or performed any type of physical examination on January 28, 2005, even though the nurses' notes that day document dyspnea associated with bilateral coarse rales/breath sounds. Dr. Rushing opined that if Dr. Craig had closely monitored Betty and noted that her lung condition was not improving, something observed by the nurses as documented by the medical records, the standard of care would have required Dr. Craig to order chest x-rays on a daily basis to observe the extent to which Betty's condition was deteriorating. Dr. Rushing stated that Dr. Craig did not order daily chest x-rays, and by the time an x-ray was done on January 29, 2005, the pneumonia/congestive heart failure had progressed as documented by the x-ray. According to Dr. Rushing, if Dr. Craig had obtained cardiac and pulmonary consultations no later than January 27, 2005, then "a more aggressive and appropriate treatment plan would have been initiated as early as 01/27/05." Dr. Rushing then explained in his report that the more aggressive and appropriate treatment plan would have included (1) the insertion of a Swan-Ganz catheter to better monitor pulmonary arterial pressure and to allow a better assessment of Betty's congestive heart failure; (2) an echocardiogram to better define Betty's actual heart function, permitting more specific therapy to be directed to a specific ailment such as systolic or diastolic dysfunction or valvular disease; and (3) assessment of Betty's dyspnea, oxygen saturation, and degree of pulmonary edema, and treatments including inhalation therapy with bronchodilators, steroids, and mucolytics. Dr. Rushing concludes his report by stating that had Dr. Craig obtained daily chest x-rays, daily testing, and the appropriate physical examinations as required by the standard of care, she would have realized Betty's condition was deteriorating, and the standard of care would have required Dr. Craig to call in cardiac and pulmonary consults as of January 27, 2005. According to Dr. Rushing, if these consults had been made as of January 27, 2005, Betty would have been transferred to ICU, where she would have received closer monitoring and more aggressive treatment. Under those circumstances, Dr. Rushing explains, Betty more likely than not would have survived the illness and would not have died when she did. Dr. Rushing's report provides a fair summary of his opinions, as of the date of the report, on the applicable standards of care, the manner in which the care rendered by appellants failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The report discusses the statutory elements with sufficient specificity to adequately inform appellants of the specific conduct plaintiff has called into question and to provide a basis for the trial court to conclude the claims are meritorious. See Palacios, 46 S.W.3d at 875. Appellants claim that the medical records presented to the trial court demonstrate that Betty received the treatment plaintiff claims would have prevented her death, and that Dr. Rushing's report is deficient because he did not identify different or additional treatments that were not provided. Even if some of the treatments recommended were performed, the report asserts the x-rays, diagnostic tests, close monitoring, and the consults, along with the required referral to ICU within two days of admission, were not. It was within the trial court's discretion to determine that the report adequately explained different additional care that should have been provided to Betty. There is no indication that Dr. Rushing's summary is inaccurate simply because some of the treatment for Betty required by the standard of care, though not all, may have been administered. The report identified the timing of the treatment as an important factor. The report need not marshal all of the plaintiff's proof. See Palacios, 46 S.W.3d at 878. Appellants also argue that Dr. Rushing's report provides no explanation of how the recommended treatments would have cured Betty's primary medical problem during her last days -- the formation of clots in her arteries and lungs. Appellants state that because Dr. Rushing does not attempt to exclude Betty's clotting disorder as a cause of conditions which ultimately resulted in her death, "his causation opinion is speculative, conclusory and deficient." Appellants cite to Ballan v. Gibson, 151 S.W.3d 281 (Tex. App.--Dallas 2004, no pet.), and Barko v. Genzel, 123 S.W.3d 457 (Tex. App.--Eastland 2003, no pet.), in support of this argument. In Ballan, a patient died in the emergency room as a result of arteriosclerotic cardiovascular disease, and the plaintiffs brought suit alleging his doctor negligently failed to treat five cardiac risk factors. Ballan, 151 S.W.3d at 283-84. The expert's report did not state how the doctor's alleged failure to act regarding three of the risks caused Ballan's death, nor did the report rule out the factors beyond the doctor's control as the cause of death. Id. at 284. The Dallas Court of Appeals held that the expert report was conclusory and affirmed the order granting the motion to dismiss. Id. In Barko, the plaintiff sued her emergency room physician for failing to diagnose and treat her disc re-herniation, which she asserted led to permanent neurological damage and a miscarriage. Barko, 123 S.W.3d at 458. The Eastland Court of Appeals held that the report was insufficient to satisfy the statutory requirements because it: (1) did not indicate that the plaintiff would have recovered from the back injury but for the doctor's negligence; (2) did not state that the back surgery would have been avoided but for the doctor's negligence; and (3) did not make any attempt to eliminate either the back injury itself or the attempt to surgically repair it as potential causes of the permanent neurological damage. Id. at 460-61. The expert reports in Ballan and Barko are distinguishable from the report presented here. Dr. Rushing's report states that Betty's death certificate lists the causes of death as asystole, hypoxia, and atypical pneumonia. The report further states that, "[o]ther significant conditions contributing to death, but not resulting in the underlying cause given above are listed as congestive heart failure and arterial embolism." Dr. Rushing also provided the following opinion as to the cause of death: It is my opinion that the most likely sequence of events in this case, based on reasonable medical probability is that [Betty] actually died from pneumonia, congestive heart failure, sepsis and adult respiratory distress syndrome. The mechanism by which this occurred is that [Betty]'s pneumonia and congestive heart failure got progressively worse as documented by the chest x-ray[']s findings, as a result of her pneumonia coupled with a congestive heart failure, she developed sepsis. In sum, Dr. Rushing's report indicated the arterial embolism was a significant contributing condition, but the arterial embolism did not lead to the conditions that Dr. Rushing believes caused her death. See generally Arboretum Nursing and Rehab. Ctr. of Winnie, Inc., No. 14-07-00895-CV, 2008 Tex. App. LEXIS 3672, at *15 (Tex. App.--Houston [14th Dist.] May 22, 2008, no pet.) (mem. op.) (citing Chaupin v. Schroeder, No. 14-06-01102-CV, 2007 Tex. App. LEXIS 5837, at *8 (Tex. App.--Houston [14th Dist.] July 26, 2007, no pet.) (mem. op.)). We overrule issues one and two. Appellants contend in issue three that the trial court abused its discretion in finding Dr. Rushing qualified to provide opinions on the cause of Betty's death or what treatment would have prevented her death. Appellants contend that although an internist like Dr. Rushing may have treated patients with pneumonia, there is nothing in Dr. Rushing's report demonstrating he has any experience "in treating a patient with embolisms (clots) in [her] arteries and lungs from an undetermined origin." According to appellants, "[w]hile a hematologist, oncologist, immunologist, cardiologist or vascular surgeon" may have the expertise to opine as to the cause of Betty's condition and death, Dr. Rushing's report and curriculum vitae do not show that he has experience or training in treating patients in Betty's circumstances and do not show that he is qualified to say what caused the clots, whether the clots caused her death, or whether there is any treatment that would have stopped the progression of the clots. Of course not every physician automatically qualifies as an expert in every area of medicine. See Broders, 924 S.W.2d at 152. When a subject matter is common to areas of practice and equally recognized in all fields of practice, then a qualified physician familiar with the subject may testify to the standard of care. Blan v. Ali, 7 S.W.3d 741, 745-46 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Similarly, when a subject of inquiry is substantially overlapped by multiple fields of practice, a physician in one of the fields may sometimes be qualified to opine as to the standard of care for that procedure in another field. See generally Broders, 924 S.W.2d at 152. In determining an expert's qualifications to opine concerning the standard of care, a court examines whether the expert has knowledge of the specific condition involved in the claim. Blan, 7 S.W.3d at 746. In his expert report, Dr. Rushing states that he is a practicing physician licensed by the State of Texas and is board certified in internal medicine, rheumatology, and geriatric medicine. He received his medical degree from Baylor University College of Medicine in Houston, Texas, interned at Harris Hospital in Fort Worth, Texas, and received specialty training in internal medicine and rheumatology at the Mayo Clinic in Rochester, Minnesota. He also states in the report that in the regular course of his practice, he "had occasion to diagnose and treat patients with conditions substantially similar to or identical with [Betty]'s in both the hospital and office setting." He notes that he has served as the primary care physician for more than ten thousand hospitalized patients during his career, and many of these patients have had the same types of problems as Betty Dearbonne. The trial court did not abuse its discretion in finding the expert qualified to express the opinions explained in the report. See Tex. R. Evid. 702; Broders, 924 S.W.2d at 153. We overrule issue three. We affirm the trial court's order denying appellants' motion to dismiss. AFFIRMED. DAVID GAULTNEY Justice Submitted on January 5, 2009 Opinion Delivered February 12, 2009 Before McKeithen, C.J., Gaultney and Horton, JJ. 1. Appellants' brief outlines three arguments regarding Dr. Rushing's causation opinions. We address these three arguments in our discussion of issues one and two.