Matthew G. McMenemy, M.D. v. Donald M. Holden and Mary Holden

Reversed and Rendered in Part and Reversed and Remanded in Part and Memorandum Opinion filed November 1, 2007 Reversed and Rendered in Part and Reversed and Remanded in Part and Memorandum Opinion filed November 1, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-07-00365-CV ____________ MATTHEW G. MCMENEMY, M.D., Appellant V. DONALD M. HOLDEN AND MARY HOLDEN, Appellees On Appeal from the 434th Judicial District Fort Bend County, Texas Trial Court Cause No. 06-CV-151678 M E M O R A N D U M    O P I N I O N In this health care liability action, Dr. Matthew G. McMenemy appeals the trial court=s order overruling his objections to an amended expert report and denying his motion to dismiss. Because the amended expert report does not constitute a good faith effort to comply with section 74.351(r)(6) of the Texas Civil Practice and Remedies Code, we reverse the trial court=s order, render judgment dismissing appellees= claims with prejudice, and remand the case for determination of reasonable attorneys= fees and costs. I. Factual and Procedural Background Appellees Donald M. Holden (AHolden@) and his wife Mary allege that on the evening of June 13, 2004, Holden suddenly lost the vision in his left eye due to a central retinal artery occlusion (ACRAO@), which is a blood clot blocking the artery leading to the eye. About fifteen or twenty minutes later, Holden arrived at Methodist Sugar Land Hospital, where he was examined by Dr. Scott Rivenes. Dr. Rivenes noted that Holden=s left eye could only perceive light and general movement, and referred him to the hospital=s Aon call@ ophthalmologist, appellant Matthew G. McMenemy, M.D. According to reports prepared by Holden=s retained expert, Dr. Robert Lamberg, the nursing notes from the hospital reflect that Holden was not taken to Dr. McMenemy=s office until 9:40 p.m., just over three hours after the vision loss. Dr. Lamberg further reported that, although the nursing notes indicate that Holden returned from McMenemy=s office thirty minutes later, there were no notes of services Dr. McMenemy rendered. At 10:50 p.m., Holden signed a consent for the administration of Retavase and received the first dose at 10:58 p.m. There was no improvement in Holden=s vision, and he was admitted to the hospital at 12:30 a.m. on June 14, 2004 under the care of Dr. Anil B. Patel. Tests revealed that Holden=s left carotid artery was 40B50% occluded. The visual loss persisted, and Holden was discharged from the hospital on June 15, 2004. On August 25, 2006, Holden sued Methodist Sugar Land Hospital and Drs. McMenemy and Rivenes.[1] On December 20, 2006, the Holdens served Dr. McMenemy with Dr. Lamberg=s August 16, 2006 expert report. Dr. McMenemy objected to the report and filed a motion to dismiss on the grounds that the report failed to address Dr. Lamberg=s qualifications, the standard of care, breach of the standard of care, and causation. On January 19, 2007, the parties appeared before Judge Vacek in the 400th Judicial District Court of Fort Bend County, and Judge Vacek transferred the case to the 434th District Court. On January 25, 2007, Judge Wagenback sustained Dr. McMenemy=s objections and gave the Holdens thirty days to the amend the expert report. The Holdens produced an amended expert report on February 23, 2007.[2] Dr. McMenemy objected to the amended report on March 13, 2007 on the ground that it failed to appropriately address causation. The Holdens mailed a response to Dr. McMenemy=s objections, but it was not received by counsel before the hearing on April 2, 2007. At the hearing, Judge Shoemake denied the motion to dismiss. This accelerated interlocutory appeal timely followed. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(9) (Vernon Supp. 2006). II. Issue Presented In a single issue, Dr. McMenemy contends the trial court abused its discretion by overruling his objections to the amended expert report and denying his motion to dismiss. He argues that dismissal is required because the amended report is conclusory and speculative regarding causation and therefore fails to satisfy the requirements of section 74.351(r)(6) of the Texas Civil Practice and Remedies Code. We agree. III. Analysis A. Expert Report Requirements This is a health care liability lawsuit governed by chapter 74 of the Texas Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. '' 74.001B.507 (Vernon 2005 & Supp. 2006). Under these provisions, a claimant is required to produce an expert report within 120 days of the date the claim was filed.[3] The expert 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. Id. ' 74.351(r)(6). The trial court may grant a single 30-day extension to cure deficiencies in the report. Id. ' 74.351(c). But Aif 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),@ then the court shall grant a motion challenging the report=s adequacy. Id. ' 74.351(l). Although an expert report Aneed not marshal all the plaintiff=s proof, . . . it must include the expert=s opinion on each of the elements identified in the statute.@ Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (applying predecessor statute). When considering a motion to dismiss based on the inadequacy of an expert report, A[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. To constitute a Agood-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. AA report that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Nor can a report meet these purposes and thus constitute a good-faith effort if it omits any of the statutory requirements.@ Id. In deciding whether this standard is met, Aa trial court should look no further than the report. . . . .@ Id. at 878. B. Standard of Review We review the trial court=s ruling for abuse of discretion. Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.CHouston [14th Dist.] 2006, no pet.); Doades v. Syed, 94 S.W.3d 664, 671 (Tex. App.CSan Antonio 2002, no pet.). A trial court abuses its discretion if it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985). A>Under this standard, a reviewing court may not disturb the trial court=s resolution of factual issues, even if the reviewing court would have decided the issue differently, unless the resolution is shown to be arbitrary and unreasonable.=@ Doades, 94 S.W.3d at 671 (quoting Morrill v. Third Coast Emergency Physicians, P.A., 32 S.W.3d 324, 327 (Tex. App.CSan Antonio 2000, pet. denied)). Thus, A[a] trial court=s resolution of a factual issue is arbitrary and unreasonable if the relator establishes that the trial court could reasonably have reached only one decision.@ Morrill, 32 S.W.3d at 327 (citing Walker v. Packer, 827 S.W.2d 833, 831B40 (Tex. 1992) (orig. proceeding)). But a trial court has no discretion in determining what the law is or applying the law to the facts. See Walker, 827 S.W.2d at 840 (failure by trial court to analyze or apply law correctly constitutes abuse of discretion). A trial court must grant a motion challenging the adequacy of an expert report if 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). C. Conclusory Statements of Causation We agree with Dr. McMenemy that under the law as properly applied, the amended expert report does not constitute a good-faith effort to satisfy the requirements of 74.351 and is instead speculative and conclusory regarding the element of causation. These deficiencies arise from the expert=s failure to define Atimely@ application of first aid and his failure to make any statements of probability. To place these deficiencies in context, we begin with Dr. Lamberg=s description of the standard of care and its breach: The standard of care for a patient who presents with a sudden and painless loss of vision in one eye involves a rapid check for injury and examination of the fundi. Mr. Holden was diagnosed to have a CRAO. The standard of care for a patient diagnosed with a CRAO includes[:] 1) Timely recognition of the signs and symptoms of an occlusion in the eye, including limited light perception and perception of movement. 2) Timely and properly administering first aid in an effort to break up the blood clot. With respect to the initial treatment which could be administered to a patient who presents with a CRAO, the following types of aid could be employed: (1) massage of the eye globe to try to break up the clot; (2) introduction of carbon dioxide by breathing into a paper bag to try to dilate the retinal artery with increased CO2 in the blood; and (3) application of topical beta blocker drops and/or Diamox IV to lower the pressure in the eye. Should these steps fail, then the ophthalmologist must perform a paracentesis (puncture of the eye globe) to immediately lower the pressure in the eye. In the case of Mr. Holden, the medical records reveal that Dr. McMenemy breached the standard of care for an ophthalmologist by not timely performing first aid to the patient=s left eye, including the failure to either massage the eye, or trying to lower the pressure in the eye by the introduction of either CO2 or other topical drops, and then not performing a paracentesis of that eye to lower the pressure in the eye to let the blood pressure move the clot into the peripheral retina. Over four hours had passed since Mr. Holden first presented to the hospital complaining of a sudden loss of vision in his left eye to the time an attempt was made to lyse the clot with Retavase. During that time, there were no attempts made to resuscitate the stroke in the blind eye other than an application of the Retavase . . . . I have personally treated patients who presented with the same or similar circumstances as Mr. Holden, and have timely applied first aid to their CRAOs, as well as performed paracenteses, with the patients having successfully regained their eye sight, or never having fully lost their sight. In my opinion, if Dr. McMenemy had timely treated Mr. Holden in this manner, he could have regained the sight in his left eye. . . . It is my opinion based on reasonable medical probability that Dr. Matthew McMenemy fell below the standard of care for an ophthalmologist, and was therefore negligent, as defined above,[[4]] by his: 1) Failure to timely and properly administer first aid in an effort to break up the blood clot in Mr. Holden=s left eye. 2) Failure to timely perform a paracentesis of the left eye to immediately lower the pressure in that eye. (emphasis added). The conclusory statements in this amended expert report fail to provide a basis for the trial court to conclude that the Holdens=s claims have merit. See Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52B53 (Tex. 2002) (per curiam) (holding that causation was not established by statement that Aif the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then Wright would have had the possibility of a better outcome@). Specifically, we cannot determine from this report whether the opportunity for Atimely@ intervention was still available at the time that Dr. McMenemy examined Holden, and whether it was probable that performance of the first aid measures described would have reversed Holden=s vision loss. 1. No Definition of ATimely@ The Holdens argue that the amended expert report adequately addresses timeliness in this passage: Over four hours had passed since Mr. Holden first presented to the hospital complaining of a sudden loss of vision in his left eye to the time an attempt was made to lyse the clot with Retavase. During that time, there were no attempts made to resuscitate the stroke in the blind eye other than an application of the Retavase. (emphasis added). This statement commingles the time when Holden was under the care of Dr. Riveness, Dr. McMenemy, and Methodist Hospital, but does not identify any point at which Holden=s vision loss was reversible. This ambiguity is particularly problematic because the Holdens do not contend that Dr. McMenemy had any opportunity to examine or treat Holden during the first three hours after the onset of his symptoms. But Dr. McMenemy=s failure to perform first aid can only have been a cause of Holden=s injury if there was a reasonable medical probability that Holden=s vision loss was reversible at 9:40 p.m. In sum, the report does not remedy the deficiency identified by the trial court when it gave the Holdens the opportunity to file an amended report A[t]o specifically state causation of plaintiff=s injuries with respect to the conduct of Dr. McMenemy.@ Although the amended expert report contains Dr. Lamberg=s opinion that timely first aid could have reversed Holden=s vision loss, nothing in the report indicates that Dr. McMenemy had the opportunity to render Atimely@ assistance, or defines Atimely@ to include the period of time during which Holden was under Dr. McMenemy=s care. The amended expert report contains no indication that it is probable Holden would have regained his sight if Dr. McMenemy had taken a particular action when he saw Holden more than three hours after Holden first lost his sight. Significantly, the expert opined in his prior report: [Dr. McMenemy] failed to provide the standard of care for the catastrophic central retinal artery occlusion that presented within 2 hour of the event. While the outcome of the CRAO is variable, even when all of the above steps are taken, there is still a significant percentage of eyes that recuperate some level of useful vision even 24 hours after an artery occlusion.[[5]] In amending his original report to cure its deficiencies, Dr. Lamberg continued to avoid expressing any opinion regarding the time at which Holden=s loss of vision became permanent, or alternatively, whether Holden=s loss of vision was permanent from the outset. Although the report indicates that some instances of CRAO respond to treatment, the report does not indicate that this patient=s loss of vision was curable at any time. 2. No Indication of Probability This leads us to the second problem with the amended expert report: it contains no indication of probability. Dr. Lamberg =s amended report expresses no opinion that, more than three hours after losing his sight, it was more likely than not that Holden=s vision would be restored by any of the acts that Dr. Lamberg identifies as required by the standard of care. We do not imply that an expert report is required to describe the causal relationship in terms of Areasonable medical probability@ or other Amagic@ words. Id. at 53. But regardless of the specific words used, a report must do more than express a mere possibility. Id. This is particularly true when the patient complains of the health care provider=s failure to reverse an impairment. A[W]here preexisting illnesses or injuries have made a patient=s chance of avoiding the ultimate harm improbable even before the allegedly negligent conduct occursCi.e., the patient would die or suffer impairment anywayCthe application of these traditional causation principles will totally bar recovery, even if such negligence has deprived the patient of a chance of avoiding the harm.@ Kramer v. Lewisville Mem=l Hosp., 858 S.W.2d 397, 400 (Tex. 1993). A[N]egligent conduct is a cause of harm to another if, in a natural and continuous sequence, it produces an event, and without the negligent conduct such event would not have occurred.@ Id. at 404 (emphasis added). At best, Dr. Lamberg opined that Dr. McMenemy probably breached the standard of care, and speculated that the breach caused Holden to lose some unquantified chance of recovery. Significantly, he does not conclude that it is more likely than not that, absent Dr. McMenemy=s negligence, Holden would have recovered his vision. The Holdens respond that Dr. Lamberg adequately addressed causation in his statement, AIn my opinion, if Dr. McMenemy had timely treated Mr. Holden in this manner, he could have regained the sight in his left eye.@ They argue that, read in context, Dr. Lamberg=s statement that Holden Acould have@ regained sight is the equivalent of a statement that it is Amore likely than not@ that Holden would have recovered. We disagree. First, gaps in an expert report may not be filled by Adrawing inferences or guessing as to what the expert likely meant or intended.@ Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.CAustin 2007, no pet. h.). Moreover, such an inference is contrary to the plain meaning of the language used in the report. The word Acould@ is the past tense of Acan@ and is used as the past or past conditional tense of Acan@ and in Athe auxiliary function in the past tense and as an alternative to can suggesting less force or certainty . . . .@ Merriam-Webster=s Third New Int=l Dictionary, 517 (Philip Babcock Gove, ed., 3d ed., 1993). Because the word Acould@ expresses uncertainty as to whether Holden=s sight was even capable of restoration, the report cannot be read to imply that such restoration was not merely possible, but probable. And without some indication of probability, however expressed, the expert report fails to indicate that the Holdens= claims have merit. Cf. Gallardo v. Ugarte, 145 S.W.3d 272, 279 (Tex. App.CEl Paso 2004, pet. denied) (AThe breach in the standards of care by Sunset Haven Nursing Center, Dr. Adrian O. Ugarte, MD, and [Sunset=s medical director] caused the death of Mr. Roberto Gallardo.@) (emphasis added); Estate of Birdwell ex rel v. Texarkana Mem=l Hosp., Inc., 122 S.W.3d 473, 478 (Tex. App.CTexarkana 2003, pet. denied) (ABased upon reasonable medical probabilities, it is my opinion that the nurses at Wadley and Dr. Malcolm Smith deviated from the appropriate standard of care while treating Bessie Birdwell and that this deviation from the appropriate standard of care was a cause of Ms. Birdwell=s injuries . . . .@) (emphasis added); Moore v. Sutherland, 107 S.W.3d 786, 790 (Tex. App.CTexarkana 2003, pet. denied) (AHad the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient=s death.@) (emphasis added); In re Barker, 110 S.W.3d 486, 489 (Tex. App.CAmarillo 2003) (A[I]t is my opinion, with a reasonable degree of medical probability, that but for Dr. Barker=s negligence in diagnosis and treating and obtaining timely neurosurgical consultation, Mr. Meissner=s subsequent neurological deficits and long-term disability would have been avoided.@) (emphasis added). Because the expert report, as amended, does not constitute a good-faith effort to satisfy statutory requirements, we sustain Dr. McMenemy=s sole issue on appeal. IV. Conclusion We hold that the Holdens have failed to satisfy the expert report requirements of Section 74.351 of the Texas Civil Practice and Remedies Code. We therefore reverse the trial court=s order of April 2, 2007 denying Dr. McMenemy=s second motion to dismiss, render judgment dismissing the Holdens= claims against Dr. McMenemy with prejudice, and remand the cause to the trial court for determination of Dr. McMenemy=s reasonable attorney=s fees and costs of court in accordance with section 74.351(b) of the Texas Civil Practice and Remedies Code. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed November 1, 2007. Panel consists of Justices Yates, Fowler, and Guzman. [1] Dr. McMenemy does not contend that Holden=s claims are time-barred. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.251 (Vernon 2005) (imposing a two-year limitations period on health care liability claims). [2] Although received on February 23, 2007, the report is dated February 26, 2007. [3] Section 74.351(a) was amended in 2005 to substitute Athe original petition was filed@ for Athe claim was filed@; however, this amendment applies only to a cause of action that accrues on or after September 1, 2005. See id. ' 74.351(a) (Vernon Supp. 2006). [4] Dr. Lamberg used a definition of negligence that did not require a finding of causation. Although he also listed a definition of proximate cause, he defined negligence only as failure to use ordinary care and did not assert that this failure caused Holden=s vision loss to become permanent. [5] On appeal, all of the parties cite to both expert reports. In neither report does Holden attribute the three-hour delay in treatment to Dr. McMenemy.