tenet-hospitals-ltd-a-texas-limited-partnerhsip-dba-providence ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TENET HOSPITALS, LTD. A TEXAS §
LIMITED PARTNERSHIP, D/B/A
PROVIDENCE MEMORIAL §
HOSPITAL,
§
No. 08-14-00087-CV
Appellant, §
Appeal from the
v. §
327th Judicial District Court
§
ESPERANZA NARAH GARCIA, of El Paso County, Texas
INDIVIDUALLY AND AS §
REPRESENTATIVE OF THE ESTATE (TC# 2013DCV2809)
OF ARMANDO GARCIA AND FOR §
ALL WRONGFUL DEATH
BENEFICIARIES, INCLUDING §
MINOR ALEXA GARCIA,
§
Appellee.
§
OPINION
This is a health care liability case. The issue in this interlocutory appeal is the adequacy
of the expert report filed by the Garcias, who sued Tenet Hospitals, Ltd. d/b/a Providence
Memorial Hospital (Providence) and others over the death of Armando Garcia. The trial court
denied Providence’s challenge to the preliminary expert report served by the Garcias. We
conclude the trial court did not abuse its discretion and affirm.
BACKGROUND
We take the following background information from the petition and the expert report in
issue, noting that the factual claims have not yet been proven.
July 22, 2011
Armando Garcia, who was 46 at the time, saw his family practitioner the morning of July
22, 2011. He complained of shortness of breath, chest pain, and nausea. His electrocardiogram
(ECG) was abnormal. Garcia was given aspirin and oxygen, and sent by ambulance to the
emergency room at Providence, arriving at the ER just before noon.
Garcia continued to complain of shortness of breath and chest pain at the ER. Another
ECG was abnormal. Garcia reported having chest pain the day before while walking at work,
and earlier that day while climbing stairs. His chest pain was alleviated by rest and aggravated
by exertion. The ER doctor ordered oxygen, IV fluids, pain medication, and the anti-coagulant
Lovenox.
Garcia was admitted to the hospital under the care of a family practice/hospitalist at 1:05
p.m. that day. At 2:27 p.m., Dr. Roger Belbel, a cardiologist, was asked to consult on the case
given Garcia’s complaints of chest pain. Dr. Belbel gave telephone orders for a two dimensional
echocardiogram and asked that Garcia be scheduled for a stress test with contrast material in the
morning.
Neither Dr. Belbel nor the admitting doctor saw Garcia on the 22nd. Instead, a nurse
practitioner working for the admitting doctor saw Garcia at 3:45 p.m. that day. The nurse
practitioner’s notes reflect that the echocardiogram had been completed by that time, but made
no comments concerning the results. Garcia was assessed with atypical chest pain and having a
high risk for cardiovascular disease, based on his morbid obesity, hypertension, and diabetes.
2
July 23, 2011
Dr. Belbel did see Garcia sometime before 8:50 a.m. on the morning of the 23rd. Garcia
was anxious and felt pressure in his chest, but no more chest pain. He had been up and walking
the hospital floor. He reported having almost passed out from walking a few days before. Dr.
Belbel noted it was unclear whether a cardiac or a pulmonary issue was causing Garcia’s chest
pain and shortness of breath. The doctor noted the need for a CT scan to rule out a pulmonary
embolism, and that he would need to review the results of the echocardiogram he had ordered the
day before.1 His new orders included a request for a CT scan to rule out a pulmonary embolism,
and a consult with a pulmonologist.
Garcia was taken for his stress test at around 9 a.m. The test involved the injection of a
contrast material, which was given at 9:19 a.m. At some point during the test, Garcia went into
respiratory arrest. A rapid response team was called at 10:58 a.m. Despite their efforts, Garcia
expired and was pronounced dead at 11:26 a.m.
A later autopsy determined Garcia died from “bilateral pulmonary thromboembolism
with pulmonary infarction.” The lungs had a well formed clot in the main pulmonary artery.
There were also multiple clots in the small and medium-sized pulmonary blood vessels, all of
which led to an “80% hemorrghic [sic] infarction of the pulmonary parenchyma[.]” His cardiac
arteries showed only minimal changes.
Several of the physicians made chart entries after Mr. Garcia died. Dr. Belbel is reported
to have written:
1
It is unclear why the results of the echocardiogram were not in the medical chart by that time, or if they were, why
Dr. Belbel had not reviewed the chart before or while he saw Garcia. The medical chart is not a part of our record.
Most of the chronological information about these events comes from a medical summary attached to the expert’s
report, which at times paraphrases, and at times quotes, segments of the medical record.
3
I had just finished reviewing his echo doppler this morning shortly after the IV
lexi dose had been given and that [sic] I noted some alarming findings in the
study that suggested he may have already presented to the emergency room and to
his physician with a pulmonary embolism rather than a coronary ischemic
problem as had been suggested by the Nurse Practitioner that had seen him
yesterday as well as his primary physician who referred him to the ER, and by the
ER physician that had seen him in the ER and had neglected to obtain a CT scan
with contract [sic] in the ER to exclude the diagnosis of pulmonary embolism and
aortic dissection, as well as a calcium coronary score ...[.]
The admitting doctor made a chart entry a week following the death suggesting Mr. Garcia may
have arrested due to possible allergic reaction to contrast material injected during the stress test.
The Expert Reports
The Garcias filed health care liability claims against Providence, the ER physician, the
admitting physician, and the nurse practitioner. They did not sue Dr. Belbel. As provided by
statute, they were required to serve a complying preliminary expert report.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.351 (West Supp. 2014). The report here was authored by
Thomas DeBauche, MD, a practicing cardiologist who is board certified in internal medicine.
Providence has not raised any issue concerning his qualifications.
Dr. DeBauche’s initial report reflects he reviewed Garcia’s medical records from the
primary care physician and Providence, an outline of the medical care (attached to his report),
and the autopsy report. Dr. DeBauche concluded the emergency room physician, the admitting
physician, the nurse practitioner, as well as Providence breached the applicable standards of care
which led to Garcia’s death. We focus only on the allegations against Providence.
The report contends a patient presenting with a history of fainting, shortness of breath,
and atypical chest pain must be evaluated to “rule out [the] triple threat,” which includes the
three major risks facing such a patient – pulmonary embolism, aortic dissection, and myocardial
infarction (heart attack). From the record we gather that pulmonary embolism describes a blood
4
clot(s) collecting in the lungs that can potentially diminish or cut off a person’s oxygen intake.
Dr. DeBauche describes pulmonary embolism as a threat as serious as the cardiac conditions.
Dr. DeBauche makes two allegations against Providence. First, Garcia was given a two
dimensional echocardiogram on July 22. The echocardiogram showed a TrVelocity of 321.67
cm/s and estimated right ventricle systolic pressure of 56.82mm Hg. Dr. DeBauche describes
these numbers as “very abnormal” with one being twice the normal value. A chart note by Dr.
Belbel, made after Mr. Garcia passed away, referred to the findings as “alarming.” Dr.
DeBauche concludes the echocardiogram technician, whom we presume to be an employee or
agent of Providence, had a duty to report these findings immediately to Dr. Belbel. Dr.
DeBauche further claims that had Dr. Belbel been alerted to these findings, he would have
ordered a CT scan with contrast, which takes about 15 minutes, and which would have
definitively diagnosed the pulmonary embolism.
Dr. DeBauche also faults the emergency room nurses for failing to tell Dr. Belbel when
they called to arrange the consult on July 22 that Garcia had shortness of breath and was obese
(he weighed some 350 pounds). He believes that had Dr. Belbel known of Garcia’s shortness of
breath and body weight, he would have also ordered the CT scan and discovered the pulmonary
embolism earlier.
As to causation, Dr. DeBauche summarily concluded that Dr. Belbel would have ordered
a CT scan. “This would have diagnosed PE and prevented Mr. Garcia’s death.” Providence
challenged this report on several grounds. Relevant here, it contended the causation opinion was
conclusory. Providence also contended that Dr. DeBauche’s theory concerning what Dr. Belbel
would have done had he been provided different information was nothing more than speculation
and conjecture.
5
The Garcias responded to this challenge by serving, within the time limit for their
original report, an “addendum report” authored by Dr. DeBauche. That addendum states: “I
have read the Affidavit of Dr. Roger Belbel dated 11/11/13, which substantiates the statements
and opinions made in my letter to you dated 10/14/13. I agree with Dr. Belbel’s statement that
treatment with anticoagulant and thrombolytic medications on 7/22/11 would have prevented Mr.
Garcia’s death on 7/23/11.” Simultaneously, the Garcias filed and served an affidavit from Dr.
Belbel, which in substance states that had he been told on July 22 that Garcia was short of breath
and obese, he would have ordered a CT scan at that time. He also would have ordered a CT scan
if he had been told of the abnormal echocardiogram results. Pulmonary embolism is diagnosed
by a chest CT scan. Dr. Belbel concludes that: “[i]f PE had been diagnosed on 7/22/11 (via CT
scan), then Armando Garcia would have been treated by me that night with stat anticoagulant
and thrombolytic medications (including TPA, heparin) to dissolve the pulmonary embolism. In
my opinion, as a cardiologist who has treated multiple patients with PE, in reasonable medical
probability, such treatment for the PE on 7/22/11 would have prevented Mr. Garcia’s death on
7/23/11.” Dr. Belbel’s curriculum vitae was attached to his affidavit.
Providence renewed its challenge to this combination of reports. The trial court heard
and rejected its challenge.
STANDARD OF REVIEW
We begin with the familiar standards governing expert medical reports in health care
liability claims. The statute requires that within 120 days after a defendant health care provider
files an answer, the plaintiff must serve an “expert report” as to that provider.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a).2 An “expert report” is statutorily defined to mean
2
The prior version of the statute in effect when this suit was filed required the report to be served within 120 days of
filing the suit. Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex.Gen.Laws 847, 875, amended by
6
one that “provides a fair summary of the expert’s opinions” regarding the standard of care, how
the health care provider failed to meet that standard, and as relevant here, “the causal relationship
between that failure and the injury, harm, or damages claimed.” Id. at § 74.351(r)(6). An expert
report that does not represent a good faith effort to comply with the statute is inadequate, and a
trial court must grant a motion challenging an inadequate report. Id. at § 74.351(l).
The phrase “fair summary of the expert’s opinions” means at least that the expert must
state more than a mere conclusion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 878-79 (Tex. 2001). Instead, the expert must explain the basis of the opinion so
as to link the conclusion to the facts of the case. Bowie Memorial Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002). While the claimant need not marshal all of the evidence to support the
opinion, there must be sufficient facts to meet the two objectives of the statute: to inform the
defendant of the specific conduct claimed to be negligent and to satisfy the trial court that the
claims have merit. Palacios, 46 S.W.3d at 877. The trial court should not have to fill in missing
gaps in a report by drawing inferences or resorting to guess work. See Bowie Mem’l Hosp., 79
S.W.3d at 52; Kanlic v. Meyer, 320 S.W.3d 419, 422 (Tex.App. – El Paso 2010, pet. denied).
The trial court makes the decision whether the report is sufficient. Our role, whether the
trial court has approved or rejected the report, is to determine if the trial court abused its
discretion. Tenet Hospitals Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App. – El Paso 2009, pet.
denied). A trial abuses its discretion when it acts arbitrarily or unreasonably and without
reference to any guiding rules or principles. Id.
DISCUSSION
Act of June 17, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex.Gen.Laws 1590. The change is of no consequence to
the issues before us.
7
Providence brings two issues on appeal. In Issue One it asks whether it was proper for
the trial to court to credit Dr. Debauche’s adoption of Dr. Belbel’s affidavit given that Dr.
Belbel: (a) only makes self-serving statements; (b) is a potentially responsible party; and (c) is
not himself offered as a qualifying expert. In Issue Two Providence asks if the causation
opinion, which assumes that an earlier communication of Garcia’s condition to Dr. Belbel would
have resulted in a different treatment regime, is adequately linked to the facts of the case.
Providence weaves into its discussion of these issues various arguments concerning how the
report fails to meet several requisites of Rules 702 and 703 of the Texas Rules of Evidence.3
The Expert’s Reliance on Dr. Belbel’s Affidavit
As we understand its contention, Providence objects to Dr. DeBauche adopting Dr.
Belbel’s reasoning and opinions. Its objection is not based on the simple mechanics of Dr.
DeBauche adopting by reference another physician’s opinion, but rather it is primarily focused
on adopting another physician’s opinion without any analysis or indicia of reliability.4
3
In this opinion, we will refer to the restyled versions of Rules 702 and 703, which became effective April 1, 2015.
See Tex. Sup. Ct. Misc. Dkt. No. 15-9048 (March 10, 2015), at 41. We note that the “restyling changes are intended
to be stylistic only.” Id. at 1.
TEX.R.EVID. 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.
TEX.R.EVID. 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or
personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
4
Palacios held that in determining the adequacy of a report, the court should look only to the four corners of the
report itself. 46 S.W.3d at 878. Nonetheless, preliminary experts can adopt the opinions of other preliminary
experts or other qualified physicians as a part of their report. Tenet Hosp. Ltd. v. Barajas, 451 S.W.3d 535, 548
(Tex.App. – El Paso 2014, no pet.)(preliminary expert adopting causation opinion from treating doctor that fall at
hospital caused knee injury); Kelly v. Rendon, 255 S.W.3d 665, 676 (Tex.App. – Houston [14th Dist.] 2008, no
pet.)(one preliminary expert adopting other preliminary expert’s opinion).
8
An initial premise for much of Providence’s argument is represented by the statement in
its reply brief that “[t]he statute requires Dr. DeBauche’s causation testimony to comply with the
rules of evidence generally applicable to expert opinion testimony.” 5 For this proposition,
Providence relies on TEX.CIV.PRAC.&REM.CODE ANN. §§ 74.351(r)(5)(c) and 74.403, as well as
Collini v. Pustejovsky, 280 S.W.3d 456 (Tex.App. – Fort Worth 2009, no pet.). Because this
proposition is a linchpin for much of Providence’s argument, we begin here.
Which rules of evidence apply to preliminary expert
medical reports in health care liability claims?
An “expert” is a defined term in health care liability claims, and the expert must possess
certain statutorily designated qualifications. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5).
Specifically, an expert providing a causation opinion must be a “physician who is otherwise
qualified to render opinions on such causal relationship under the Texas Rules of Evidence.” Id.
at § 74.351(r)(5)(C).6 From this reference to the Texas Rules of Evidence, Providence argues
that a host of relevance and reliability limitations apply to expert causation opinions. For
instance, it contends the limitation in TEX.R.EVID. 703 concerning what an expert may rely on
applies to preliminary expert reports in health care liability claims.
But we think this goes too far. Section 74.351(r)(5)(C) incorporates the rules of evidence
in the context of the expert’s qualifications, not the substance of the opinion itself. Certainly
TEX.R.EVID. 702’s requirement that the witness must be qualified by “knowledge, skill,
experience, training, or education” would apply. But we think it premature at this early stage of
a case to impose all of the additional requirements in Rules 702 and 703 concerning relevance
and reliability. We take the language in Section 74.351(r)(5)(C) at face value that the reference
5
Similar statements appear at eight other places in Providence’s briefing to this Court.
6
Section 74.403 sets out additional qualifications such as licensure and active practice that are not in issue here.
9
to the Texas Rules of Evidence pertains to qualifications, and not to the opinion itself.
Otherwise, every report challenge would turn into a mini-Daubert Robinson hearing.7
Providence also relies on Collini v. Pustejovsky, 280 S.W.3d 456 (Tex.App. – Fort Worth
2009, no pet.), to argue that Rule 703 and the reliability tests in Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998), apply at the expert report stage of a health care
liability claim. Collini involved a treating doctor who allegedly overprescribed and under
monitored the drug Reglan, which caused permanent injury to her patient. Id. at 459-60. The
patient filed an expert report from a board certified family practice doctor supporting the claim.
Id. The expert had some background in pharmacology, but otherwise presented no credentials on
any specific expertise with the drug Reglan. Id. at 465. The expert attempted to incorporate the
opinions of several treating doctors whose qualifications were not disclosed. Id. at 466. The
court held the expert failed to demonstrate any specific qualifications with regard to Reglan, and
while noting that it would be appropriate for one physician to rely on the opinions of others,
there was nothing in the record about the qualifications of the other physicians upon whom he
relied. Id. In supporting its conclusion that the particular expert was not qualified on causation
issues, the Collini court cites TEX.R.EVID. 703 and its reasonable reliance requirement, as well as
the reliability requirements explained in Gammill and Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 578 (Tex. 2006). Collini, 280 S.W.3d at 465-66. Providence uses these citations in Collini
as a springboard to launch many of its arguments.
Collini, however, is factually distinguishable if for no other reason than Dr. Belbel’s
qualifications are included as a part of his affidavit.8 Thus the situation here is unlike Collini
7
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Daubert v. Merrell Dow
Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
10
where there was no evidence of the other doctors’ qualifications other than the MD designations
behind their names. Additionally, Providence does not challenge either Dr. DeBauche or Dr.
Belbel’s qualifications in this appeal. We understand its challenge to be focused on the
reliability of the opinion itself. Finally, to the extent Collini stands for the proposition that the
full panoply of the Rule 702 and 703 relevance and reliability standards apply to a preliminary
expert report in a health care liability claim, we would simply disagree.
No doubt, TEX.R.EVID. 702 generally requires that an expert’s opinion must be both
relevant and reliable. Gammill and Tamez, both cited by Collini, base this requirement on
Robinson. Gammill, 972 S.W.2d at 720; Tamez, 206 S.W.3d at 578. In turn, Robinson discerns
the relevance and reliability requirement from the “assistance” clause in Rule 702 that provides
“if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact…”
a suitably qualified witness can express an expert opinion. 923 S.W.2d at 556. We read Section
74.351(r)(5)(C), however, as primarily grafting the “qualifications” clause of Rule 702 onto the
inquiry (“[a] witness who is qualified as an expert by knowledge, skill, experience, training, or
education…”). Because Robinson and its progeny spring out of the “assistance” clause of Rule
702, they are less a part of the inquiry at this preliminary stage of the litigation.9
8
Dr. Belbel’s curriculum vitae reflects that he is board certified in internal medicine, cardiovascular medicine, and
interventional cardiovascular medicine. He was the chief of cardiology services at William Beaumont Army
Medical Center and Las Palmas Medical Center. Relevant here, he has written on the issue of pulmonary
embolisms. Nina J. Karlin MD, Roger J. Belbel MD, James P. Bradley MD, Acute Pulmonary Distress Syndrome
due to Massive Pulmonary Embolism, 91 Southern Medical Journal, No. 10, 998 (Oct. 1998).
9
Gammill also addressed whether the experts were qualified to express the opinions they did under Rule 702. 972
S.W.2d at 719. Accordingly, the Gammill opinion would be instructive here if the issue before us was the
qualifications for either Dr. DeBauche or Dr. Belbel. See Padilla v. Loweree, 354 S.W.3d 856, 863 Tex.App. – El
Paso 2011, pet. denied)(applying Gammill in expert qualification issue); Palafox v. Silvey, 247 S.W.3d 310, 316
(Tex.App. – El Paso 2007, no pet.)(same).
11
We emphasize that all of the Rule 702 and 703 requirements will fully apply to these
opinions at other stages of the case, such as summary judgment and trial.10 A trial court has an
obligation to insure that only relevant and reliable expert opinions are admitted into evidence.
Robinson, 923 S.W.2d at 556. But, that inquiry requires a fully developed record, where the trial
court can consider published literature, other expert opinions, and the like. See Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997)(court should evaluate
underlying data to determine if the opinion itself is reliable); Constancio v. Shannon Medical
Ctr., No. 03–10–00134–CV, 2012 WL 1948345, at *13 (Tex.App. – Austin May 22, 2012, no
pet.)(expert challenge in medical malpractice case where testimony from opposing expert and
medical literature was considered); Taber v. Roush, 316 S.W.3d 139, 152-59 (Tex.App. –
Houston [14th Dist.] 2010, no pet.)(reviewing trial court’s decision to admit expert’s brachial
plexus opinion in light of other expert opinions, literature in field, and decisions of other courts).
Because the Texas Supreme Court has limited the preliminary expert report inquiry to the four
corners of the report itself,11 it is inappropriate at this early stage to attempt to apply Robinson
and its progeny to the process.
We also emphasize that the trial court still needs enough information from the expert
report to verify that the claim has merit. Palacios, 46 S.W.3d at 877. This level of proof is
certainly more than an expert’s ipse dixit or bald conclusions. See Loaisiga v. Cerda, 379
S.W.3d 248, 261 (Tex. 2012)(report cannot be based only on assumed facts pleaded in case);
Palacios, 46 S.W.3d at 879 (opinion must be more than mere conclusions). But it is something
10
Several cases which Providence relies on in its Reply Brief, such as Fraud-Tech, Inc. v. Choicepoint, Inc., 102
S.W.3d 366, 382 (Tex.App. – Fort Worth 2003, pet. denied), and Hall v. Rutherford, 911 S.W.2d 422, 426
(Tex.App. – San Antonio 1995, writ denied), address what experts might properly rely on at the summary judgment
stage of a case. In Fraud-Tech, for instance, an expert’s reliance on the ipse dixit of another expert’s was held
improper under “rule 702, Robinson, and its progeny.” 102 S.W.3d at 382. We do not believe all of those inquiries
are appropriate at this stage of the case.
11
Palacios, 46 S.W.3d at 878.
12
less than the plaintiff will need to show at a Daubert/Robinson challenge to the expert. With
regard to causation, it should certainly include an articulable, complete, and plausible
explanation of how the alleged breaches led to the damages sustained. If the plaintiff gets their
foot that far inside the door, they can then proceed with discovery to verify that the plausible
explanation can be proven by a preponderance of the evidence.
Did the trial court abuse its discretion in crediting
Dr. DeBauche’s reliance on Dr. Belbel’s affidavit?
Our view of Section 74.351(r)(5)(C) answers most of Providence’s claims. As a part of
its first issue, Providence challenges Dr. Debauche’s reliance on Dr. Belbel’s affidavit. It
criticizes Dr. Belbel’s affidavit on a number of levels: it is “self-serving”; Dr. Belbel’s actual
actions belie what he claims in the affidavit; Dr. Belbel might be at fault because other
defendants below have attempted to designate him as a responsible third party; Dr. Belbel’s
statements about what he would have done are inherently subjective, and could never be tested.
Providence’s precise legal argument is that Dr. DeBauche can only rely on materials regularly
relied on by an expert, and no expert would rely on these kind of self-serving or questionable
claims made by the treating physician. It argues that Dr. DeBauche could not have reasonably
relied on Dr. Belbel’s assertions, as a matter of law.
We reject this argument for a number of reasons. First and foremost, the requirement
concerning what an expert can rely on is found in TEX.R.EVID. 703, and we find no basis to
impose that requirement upon a preliminary expert report in a health care liability claim. Many
of the reliability measures that Providence raises also flow out of the “assistance” clause of Rule
702, and we find no basis to apply them at this juncture. We acknowledge the case law holding
that if the preliminary expert relies on some other physician’s opinion, there must be some
indication of that other physician’s qualification to express the opinion relied upon. Collini, 280
13
S.W.3d at 466; Jones v. King, 255 S.W.3d 156, 160 (Tex.App. – San Antonio 2008, pet. denied).
We don’t disagree with that logic, but note that qualification is not an issue here as Dr. Belbel’s
affidavit suggests he is qualified, and Providence has not challenged those qualifications.
Rather, its challenges focus on the reliability of Dr. Belbel’s statements under a number of
different legal principles that have limited application here.
Providence cites a number of cases for the proposition that statements in an affidavit must
be “clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and
readily controvertible[.]” E.g., Brown v. Mesa Distribs., 414 S.W.3d 279, 287 (Tex.App. –
Houston [1st Dist.] 2013, no pet.); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App. –
Houston [1st Dist.] 1997, no pet.). It claims Dr. Belbel’s affidavit fails many of these
requirements. But these are summary judgment cases. Brown, 414 S.W.3d at 287; Rizkallah,
952 S.W.2d at 584. Palacios specifically instructs that the report “does not have to meet the
same requirements as the evidence offered in a summary-judgment proceeding or at trial.” 46
S.W.3d at 879.
Closely aligned to this argument, Providence claims the statements by Dr. Belbel are
inherently subjective, and could never be tested for their truth. And indeed, in the summary
judgment context, a claim by an interested witness that cannot be readily controverted will not
support summary judgment in some types of cases. E.g., Garcia v. C.F. Jordan, Inc., 881
S.W.2d 155, 158 (Tex.App. – El Paso 1994, no writ)(defendant in conspiracy case could not
support summary judgment on interested witness’s affidavit denying existence of conspiracy).
But it turns the logic of this rule on its head to say that because Dr. Belbel’s statements are
subjective that the Garcias can never get their case into discovery and before a jury. We agree
that Dr. Belbel’s assertions are subjective in the sense that he is hypothecating what he would
14
have done with the benefit of hindsight. But there is always a level of subjectivity with
witnesses recounting what they might have done were the situation different. The veracity of
those claims is for the fact finder to decide.12
Nor is Dr. Belbel’s self-interest a basis for discounting his assertions as a matter of law.
At some level, every entry made in a medical record is motivated by self-interest. A nurse
makes accurate chart entries to better serve their patient, but also because hospital policy likely
requires it--if the nurse failed in this duty he or she would soon be out of a job. A doctor makes
chart entries to better serve their patient but also in part out of self-protection if questions later
arise. A patient discloses their symptoms in the hopes this will assist in their cure. Some self-
interest may be more apparent, as with chart entries after a patient’s untoward outcome, but we
doubt the courts could articulate a standard that a trial court could apply to cull out some self-
interested statements from others. Ultimately, that seems a function for a jury.
Providence also contends that Dr. DeBauche could not have relied on Dr. Belbel’s
affidavit because the actual events belie what he claims in the affidavit. According to
Providence, Dr. Belbel was aware that the results of the echocardiogram were available on the
morning of the 23rd, but he decided to proceed with the stress test before having a CT scan rule
out a pulmonary embolism. We have carefully reviewed the record and find the time line of
events the morning of the 23rd ambiguous at best. Dr. Belbel dictated his chart note at 8:50 a.m.
suggesting that he saw the patient sometime before then. He states that he would review the
echocardiogram that morning, suggesting he had not yet seen it. A later note states he saw the
echocardiogram after the contrast material for the stress test had already been administered,
suggesting the test had already started. The summary of the medical chart does not affirmatively
12
We also note that at some point Dr. Belbel’s statements can be tested both against his actions on the morning of
the 23rd and any literature that sets out accepted algorithms for treating a patient such as Mr. Garcia.
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indicate Dr. Belbel consciously decided to proceed with the stress test before having a CT scan
done. In any event, the question is what Dr. Belbel would have done if the CT scan had been
done the day before. These facts may all be relevant for the fact finder’s determination, but they
hardly require the trial court to discount Dr. Belbel’s assertions as a matter of law.
Finally, we could speculate on why the Garcias did not sue Dr. Belbel, or why he has not
been added as a third-party defendant, but whether he is a party does not dictate as a matter of
law whether his statements carry any credence. The medical chart is no doubt full of statements
that will be attributed to Mr. Garcia, the ER doctor, the admitting physician, and the nurse
practitioner, all of whom are already parties to the underlying case. If an expert is not required to
ignore these chart entries, we see no reason the expert would be required to ignore the assertions
of a potential party (or potential responsible third party).
In sum, we conclude the trial court did not abuse its discretion in crediting Dr.
DeBauche’s reliance on Dr. Belbel’s affidavit. We overrule Issue One.
Adequacy of Causation Opinion
In Issue Two, Providence contends Dr. DeBauche’s causation opinion is not adequately
tied to the facts of this case. A causal relationship is established by proof that the negligent act
or omission was a substantial factor in bringing about the harm, and that absent that act or
omission, the harm would not have occurred. Clapp v. Perez, 394 S.W.3d 254, 261 (Tex.App. –
El Paso 2012, no pet.); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249
(Tex.App. – San Antonio 2004, no pet.). An expert report must provide information linking the
defendant's purported breach of the standard of care to the plaintiff's injury. Bowie Memorial
Hospital, 79 S.W.3d at 53. The court should not have to fill in missing gaps by drawing
inferences or guessing as to what the expert likely meant or intended. See Bowie Mem’l Hosp.,
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79 S.W.3d at 52; Kanlic, 320 S.W.3d at 422. Nor may we infer causation. Castillo v. August,
248 S.W.3d 874, 883 (Tex.App. – El Paso 2008, no pet.).
It is clear an expert report that speaks only of possibilities will not suffice to meet this
standard. Bowie Memorial Hospital, 79 S.W.3d at 53 (expert’s opinion that plaintiffs “would
have had the possibility of a better outcome” did not meet standard); Hutchinson v. Montemayor,
144 S.W.3d 614, 617 (Tex.App. – San Antonio 2004, no pet.)(expert claim that if arteriogram
had been done, there was a “possibility” of a correctable lesion such that an amputation may
have been avoided). Nor would a causation opinion that contains an obvious gap in the chain of
causation meet the statute’s requirements. Bowie Memorial Hosp., 79 S.W.3d at 53 (failure to
explain how not reading x-rays led to injury); Tenet Hospitals, Ltd. v. Love, 347 S.W.3d 743, 755
(Tex.App. – El Paso 2011, no pet.)(claim that hospital’s failure to provide on-call pulmonologist
caused death without explanation of how that might have altered course of treatment); Estorque
v. Schafer, 302 S.W.3d 19, 28 (Tex.App. – Fort Worth 2009, no pet.)(failure to explain how
consult with urologist would have changed outcome); Costello, 141 S.W.3d at 249 (expert’s
claim that better monitoring of cardiac patient would have prevented heart attack failed to
explain how result would be different). In this sense at least, Gammill’s “analytical gap”
phraseology is descriptive of the problems with the reports in Bowie, Love, Schafer, and
Costello. In each of those cases a link in the chain of causation was completely missing.
But, beyond these rather clear landmarks, the waters become a bit murkier. Providence
relies on a number of cases finding causation opinions inadequate because they raised more
questions than they answered. One such case is Jones v. King, 255 S.W.3d 156 (Tex.App. – San
Antonio 2008, pet. denied), a case involving the implant of a morphine pump. The plaintiff
claimed to have contracted meningitis and diabetes from the implantation, and sued in part over a
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48-hour delay in diagnosing the meningitis. Id. at 158-59. The preliminary expert report
contended the 48-hour delay caused the plaintiff additional pain and suffering, and made the
eventual treatment of the meningitis more difficult. Id. The majority opinion in Jones held the
report was inadequate because it left too many unanswered questions, such as the normal and
expected treatment course for meningitis, and what happens if there is a delay. Id. at 160 (noting
lack of a “baseline” to tell if condition actually got worse).
Another illustrative case is Kapoor v. Klovenski, No. 14-11-00118-CV, 2012 WL
8017139 (Tex.App. – Houston [14th Dist.] Feb. 16, 2012, no pet.). Kapoor is a failure-to-
diagnose-case in which the treating doctor allegedly caused a three-month delay in diagnosing a
cancer. Id. at *1. By the time the cancer was diagnosed, it was too late to treat. Id. at *3. The
first expert report filed by the plaintiff’s expert only generally discussed the importance of early
diagnoses and treatment, and summarily concluded that an earlier diagnoses probably would
have avoided the patient’s death. Id. at *2. In the first appeal, the court of appeals found this
opinion conclusory, and remanded the case for the trial court to consider an extension to remedy
the deficiency. Id. On remand, the expert issued a new report that specifically identified the
particular cancer at issue, and noted it was small with no signs metastasis at the point it should
have been diagnosed. Id. at *3. When it was eventually diagnosed, it had grown to a size with a
zero percent chance of survival. Id. The survival rate for a much smaller tumor was as high as
60%. Id. at *9. In a second appeal, the court found this second report adequate in the sense that
the trial court did not abuse its discretion in accepting it. Id. at *10.
Conversely, the Garcias rely on two decisions that approved expert causation opinions
arguably less detailed than the one here. In Manor Care Health Services, Inc. v. Ragan, 187
S.W.3d 556 (Tex.App. – Houston [14th Dist.] 2006, pet. granted, judgm’t vacated w.r.m.) the
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plaintiff claimed that the nursing staff failed to administer anti-coagulation drugs that later
resulted in the patient having a pulmonary emboli and cardiac arrest. Id. at 564. The expert
merely stated that the failure to continue the anti-coagulation treatment “contributed” to the
pulmonary embolus and that had it continued, the patient in all probability would not have had
the cardiac arrest. Id. The trial court did not abuse its discretion in finding this causation
opinion sufficient. Id.
The Garcias also rely on this Court’s opinion in Bustillos v. Rowley, 225 S.W.3d 122
(Tex.App. – El Paso 2005, pet. denied). In that case, a patient with pulmonary edema (fluid in
the lungs) went to the emergency room at 11:30 p.m. and by 3:42 a.m. she arrested and then died
less than two hours later. Id. at 125, 129. The experts claimed that the ER physician did not
monitor the patient with a pulse oxymeter or cardiac monitor, and had that been done, the
“appropriate treatment” could have been initiated and prevented the cardio-vascular collapse. Id.
at 130. This Court held that the causation opinion, while “not eloquently stated,” was adequate
under the statute. Id. at 131.
Ultimately, we resolve this issue based on what was before the trial court. The trial court
had before it not only Dr. Belbel’s statement that he has successfully treated patients with
pulmonary embolisms before, but also the precise manner in which he claimed that he could
have prevented the clot from killing Mr. Garcia. Dr. Belbel describes the use of two specific
drugs to dissolve the clots which had formed in Garcia’s lungs. The trial court also had Dr.
DeBauche’s statement that he agreed that this specific regime of anticoagulant and thrombolytic
medications if initiated on July 22 would have prevented the death on July 23. Each link in the
chain of causation was described: reporting the echocardiogram findings to Dr. Belbel would
lead to a CT scan on the 22nd; the CT scan would have demonstrated a pulmonary embolism;
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Dr. Belbel would then initiate stat administration of heparin and TPA; administration of these
drugs dissolves or reduces the size of the clot(s); reduced or dissolved clot avoids respiratory
arrest. Whether the Garcias can prove each of these links by a preponderance of the evidence is
yet to be seen, but they are described sufficiently to get them to the starting line in the litigation.
Providence also argues the causation theory here is an impermissible “chain of
speculations” (“if the correct diagnostic test had been run, then the correct diagnosis could have
been reached…”). But at some level, every negligence case is built on some assessment of what
the actors would have done but for the negligent act. If the nurse made an accurate sponge count,
then the surgeon would not have closed the wound until every sponge was found. Only when the
chain becomes too attenuated can a court, as a matter of law, decide the cause-in-fact issue. See
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2004)(health
care providers who negligently released patient were not liable for subsequent traffic accident
caused by patient); Givens v. M&S Imaging Partners, L.P., 200 S.W.3d 735 (Tex.App. –
Texarkana 2006, no pet.)(negligence in giving pregnant mother’s ultrasound was too attenuated
from infant’s hypoxia occurring months later). The record and the briefing do not raise this
question.
Related to its attack on the causation chain, Providence faults Dr. DeBauche’s report for
not ruling out other possible causes for Garcia’s death. We agree that ruling out other causes in
the causation equation will be relevant in subsequent proceedings. Jelinek v. Casas, 328 S.W.3d
526, 536 (Tex. 2010)(in review of jury verdict, holding that “when the facts support several
possible conclusions, only some of which establish that the defendant’s negligence caused the
plaintiff’s injury, the expert must explain to the fact finder why those conclusions are superior
based on verifiable medical evidence, not simply the expert’s opinion.”). But at the preliminary
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expert report stage, this Court has recently held that ruling out other causes is premature, in part
because of the limited available discovery. Tenet Hosp. Ltd. v. Barajas, 451 S.W.3d 535, 549
(Tex.App. – El Paso 2014, no pet.).
In sum, we conclude the expert’s causation opinion is adequate. Issue Two is overruled.
CONCLUSION
We are unable to conclude the trial court abused its discretion in refusing to dismiss the
suit against Providence based on its arguments raised under Issues One and Two. Accordingly,
we affirm.
STEVEN L. HUGHES, Justice
April 22, 2015
Before Rodriguez, J., Hughes, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge), sitting by assignment
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