Deborah Hendryx and KPH-Consolidation, Inc. D/B/A Kingwood Medical Center v. Carolina Duarte, Individually and as Next Friend and Personal Representative of the Estate of Baby Boy Duarte, and Israel Duarte ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
No. 09-18-00070-CV
____________________
DEBORAH HENDRYX AND KPH-CONSOLIDATION, INC.
D/B/A KINGWOOD MEDICAL CENTER, Appellants
V.
CAROLINA DUARTE, INDIVIDUALLY AND AS NEXT FRIEND
AND PERSONAL REPRESENTATIVE OF THE ESTATE
OF BABY BOY DUARTE, AND ISRAEL DUARTE, Appellees
_______________________________________________________ ______________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 17-05-05997-CV
________________________________________________________ _____________
MEMORANDUM OPINION
In this interlocutory appeal, we are asked to decide whether the trial court
abused its discretion by denying a hospital’s and a physician’s respective motions to
dismiss a lawsuit filed by Carolina and Israel Duarte, which involved health care
1
liability claims. 1 In their respective appeals, the hospital and the physician argue that
the expert report, filed by the Duartes, failed to meet the expert report requirements
found in the Texas Medical Liability Act (hereinafter, “the Act”). 2 Because the
expert report and accompanying resume, which listed the expert’s qualifications,
allowed the trial court to conclude that the report met the requirements in the Act,
we overrule the appellants’ issues and uphold the trial court’s order denying the
motions to dismiss.
Background
Carolina’s baby died on May 16, 2015, approximately six hours after he was
born. The expert medical report, filed by the Duartes, states that the baby died due
to being deprived of oxygen and blood when he was born in a prolonged “breech
presentation.” 3 Just under two years after the baby died, Carolina, her husband, and
1
Carolina sued the defendants individually and as Baby Boy Duarte’s next
friend and personal representative. Her husband, Israel, sued the defendants as the
baby’s father.
2
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (West 2017) (requiring a
court to 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, as provided by the Act).
3
We note that a “breech presentation” is a presentation of the fetus in which
the baby’s buttocks or feet arrive first at the mother’s uterine cervix. See WEBSTER’S
THIRD NEW INT’L DICTIONARY 274 (2002).
2
their son’s estate sued KPH-Consolidation, Inc. d/b/a Kingwood Medical Center and
Dr. Deborah Hendryx, the hospital and the doctor involved in the baby’s delivery.
In their original petition, the Duartes alleged that Kingwood Medical and Dr.
Hendryx were negligent for allowing Carolina to deliver the baby via a vaginal
delivery instead of delivering the baby by cesarean section.4 In July 2017, the
Duartes served the hospital and Dr. Hendryx with an expert medical report, authored
by Dr. William E. Roberts. Dr. Roberts attached his resume to his report. In his
report, Dr. Roberts explained why he believed he had the qualifications required to
render opinions about the care that Carolina received from Dr. Hendryx and
Kingwood Medical. The report contains Dr. Roberts’ opinions, which are critical of
the care Kingwood Medical and Dr. Hendryx provided Carolina. The report also
explains how the doctor and the hospital violated the standards of care that apply to
patients who present with signs and symptoms like those Carolina had when she
arrived, by ambulance, at Kingwood Medical in May 2015 to deliver her baby.
According to Dr. Roberts’ report, Carolina’s baby would have survived delivery had
he been delivered via cesarean.
4
A “cesarean” is “a surgical operation through the walls of the abdomen and
uterus for the purpose of delivering the young of a human[.]” WEBSTER’S THIRD
NEW INT’L DICTIONARY 367 (2002).
3
After the Duartes served Kingwood Medical and Dr. Hendryx with Dr.
Roberts’ report, Dr. Hendryx and Kingwood Medical filed motions to dismiss the
case. In their motions, both Kingwood Medical and Dr. Hendryx challenged Dr.
Roberts’ qualifications to offer opinions as an expert, asserting that Dr. Roberts was
not qualified because he was not actively practicing medicine or providing health
care when Carolina delivered the baby or when the Duartes filed their suit.
Dr. Roberts’ report and resume contain information that is relevant to his
qualifications as an expert. The information in the report and the resume shows that
Dr. Roberts is currently licensed to practice medicine in Tennessee, that he has
specialties in obstetrics and gynecology, and that he is a subspecialist in maternal
fetal medicine. Dr. Roberts holds board certifications from the American Board of
Obstetrics and Gynecology. He first received his board certification in 1981 and has
been recertified since then in the field of obstetrics and gynecology, and in his
subspecialty of maternal fetal medicine.
Dr. Roberts’ resume reflects that he has authored or co-authored two books in
the fields of his specialties, authored or co-authored eighteen chapters in other books
that were published in the field of obstetrics, and authored or co-authored eighty-
three journal articles, published on subjects relevant to his certifications. Dr. Roberts
has also authored or co-authored 104 abstracts in fields that involved his specialties.
4
The resume Dr. Roberts attached to his report contains information about his
employment history. The resume shows that Dr. Roberts completed an obstetrics
internship and residency at Keesler Air Force Base, in Mississippi, and that he served
as the chief of the obstetrics service at both Travis Air Force Base, in California, and
at Keesler Air Force Base. Dr. Roberts previously held a teaching position as
professor in the obstetrics and gynecology departments at the University of
Mississippi, as chief and then chair of the obstetrics department at Keesler Air Force
Medical Center, and he served as vice chairman of the obstetrics and gynecology
department at Lehigh Valley Medical Center in Allentown, Pennsylvania. Between
2007 and 2012, Dr. Roberts worked in the division of maternal fetal medicine for
Erlanger Health System in Chattanooga, Tennessee, while serving as a professor at
the University of Tennessee School of Medicine. Currently, Dr. Roberts is employed
by “Perinatal Consultants.” Dr. Roberts’ resume and report, however, contain no
further details about what his position with Perinatal Consultants entails.
The report at issue shows what records Dr. Roberts reviewed in forming his
opinions in the Duartes’ case. He reviewed records from Carolina’s treating
obstetrician, Northeast Ob/Gyn Associates, records from Cypress Creek EMS (the
organization that transported Carolina to the hospital), and the preliminary and
5
amended autopsy reports on Carolina’s baby, which states the cause of the baby’s
death in medical terms.
Dr. Roberts’ report includes his opinions on the medical care Carolina
received from the hospital and Dr. Hendryx on May 16, 2015. Dr. Roberts’ opinions
are premised on the fact, as shown in Carolina’s medical records, that Carolina’s
baby was in a breech position at birth. The records Dr. Roberts reviewed also show
the baby was believed to be in a breech position when Carolina was last seen by her
treating obstetrician, more than a week before she delivered her baby. According to
Dr. Roberts, Carolina’s medical records show that in early April 2015, Carolina’s
treating obstetrician determined that Carolina’s baby was not in a head-down
position in her womb. Carolina saw her treating obstetrician again on May 5, 2015,
eleven days before she went to Kingwood Medical, where she delivered the baby.
The treating obstetrician’s records show that Carolina was thirty-four weeks
pregnant when last seen, but that her baby had still not turned in her womb.
According to Dr. Roberts’ report, Carolina’s obstetrician told her of “the continued
fetal malpresentation and the need for a cesarean delivery if it persists[.]” Carolina’s
obstetrician advised Carolina to contact the labor and delivery unit of the hospital
should she experience the symptoms of labor.
6
Dr. Roberts’ report contains information relevant to the day Carolina went
into labor. His report notes that Carolina did not immediately go to the hospital when
she began experiencing labor pains. Instead, she waited until 11:45 p.m., on May 15,
2015, before calling for an ambulance. Dr. Roberts then notes that the records of
Cypress Creek EMS state that Carolina informed the emergency responders who
came to her home that her baby was not in a head-down position based on the
information she received from her obstetrician. The Cypress Creek records also
show that Carolina told the emergency responders that she was having contractions
every five minutes. Cypress Creek EMS took Carolina to Kingwood Medical’s labor
and delivery unit, which admitted her on May 16, 2015, at 12:30 a.m.
Dr. Roberts’ report also mentions what he found significant in Kingwood
Medical’s records. Upon Carolina’s arrival at the hospital, Carolina was seen by a
nurse. The nurse noted that Carolina’s cervix was completely effaced and dilated, at
eight centimeters. Around 12:42 a.m., Kingwood Medical notified Dr. Hendryx, the
obstetrician who was on-call that night, that Carolina had been admitted to the
hospital. At 12:47 a.m., Carolina requested that the nurse perform an ultrasound, but
the nurse who performed the test noted in the hospital’s records that she was unable
to determine the baby’s position in Carolina’s womb. At 12:53 a.m., the nurse called
Dr. Hendryx and asked that the doctor “perform the ultrasound to determine fetal
7
position.” At 1:00 a.m., according to Dr. Roberts’ report, the hospital records show
that Dr. Hendryx was “at bedside and confirm[ed] the breech presentation.” At 1:01
a.m., Dr. Hendryx called for an emergency cesarean. The hospital’s records,
according to Dr. Roberts’ report, show that Dr. Hendryx and the nurses were ready
to perform the cesarean at 1:27 a.m., but were on standby because the anesthesiology
personnel needed to assist in the surgery had not yet arrived. At 1:31 a.m., Carolina’s
records show she began pushing uncontrollably and that she delivered the baby,
buttocks first. Although Carolina’s baby apparently survived his breech delivery, he
required emergency medical care. When examined at the nursery, the baby’s eyes
were fixed and dilated, and he was unresponsive to pain. Kingwood Medical
transferred the baby to another hospital, where he was pronounced dead around 7:30
a.m. According to Dr. Roberts’ report, an autopsy on the baby shows the baby died
of “‘global hypoxic ischemia of the brain in the setting of breech presentation with
prolonged delivery.’”
Alleging that the negligence of Dr. Hendryx and Kingwood Medical caused
the baby’s death, the Duartes sued Dr. Hendryx and Kingwood Medical, alleging
that they failed to timely and adequately assess Carolina’s condition, failed to timely
provide her with the care she needed for her condition, and failed to timely and
adequately diagnose her condition. The petition also alleges that the acts and
8
omissions of Dr. Hendryx and Kingwood Medical proximately caused the baby’s
death.
After the Duartes served the defendants with Dr. Roberts’ report, Dr. Hendryx
objected to it on the ground that the report showed that Dr. Roberts, as of October
2012, was no longer actively engaged in the practice of medicine. Kingwood
Medical objected to Dr. Roberts’ report for additional reasons, claiming that the
information Dr. Roberts included with his report failed to show that Dr. Roberts was
qualified to express opinions about the care Carolina received from the hospital.
Additionally, Kingwood Medical argued that Dr. Roberts was no longer actively
practicing medicine as a health care provider. Finally, Kingwood Medical objected
to Dr. Roberts’ report because his opinions about how the hospital’s acts or
omissions caused the baby’s death were overly conclusory.
After the Duartes failed to amend or supplement Dr. Roberts’ report, Dr.
Hendryx and Kingwood Medical moved to dismiss the Duartes’ claims. In late
January 2018, the trial court conducted a hearing on the defendants’ respective
motions to dismiss. Following the hearing, the trial court denied both motions. In its
order, the trial court found that Dr. Roberts’ report satisfied the expert report
requirements in the Act.5 The trial court also found that, to the extent there were any
5
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2017).
9
deficiencies in the information that Dr. Roberts provided about whether he was
actively practicing medicine, “good reason [exists] to admit [his] testimony based
upon his extensive years of experience, training and teaching in the field at issue in
this case.” Thereafter, Kingwood Medical and Dr. Hendryx exercised their rights to
pursue interlocutory appeals from the denial of their motions.6
Issues
In their appeals, both Dr. Hendryx and Kingwood Medical contend that Dr.
Roberts failed to establish he is actively practicing medicine to author an expert
report that complies with the requirements of the Act.7 Unlike Dr. Hendryx, whose
only complaint concerns whether Dr. Roberts was actively practicing medicine as
required by the Act, Kingwood Medical also contends that Dr. Roberts failed to
show that he is knowledgeable about the standards of care applicable to a hospital’s
nursing staff and that his opinions about what caused the baby’s injury and death are
overly conclusory.
Standard of Review
In appeals from rulings on expert reports in health care liability cases, a trial
court’s ruling on a defendant’s motion to dismiss is reviewed by the appellate court
6
See id. § 51.014 (a)(9) (West Supp. 2018).
7
See id. §§ 74.401, 74.402 (West 2017).
10
under an abuse-of-discretion standard.8 “A trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner without reference to any guiding rules or
principles.”9 When the plaintiff’s case is subject to the Act, trial courts may be found
to have abused their discretion in ruling on motions to dismiss when the record
before the appellate court demonstrates that the trial court failed to analyze or apply
the law correctly. 10 Absent an abuse of discretion, an appellate court may not
substitute its judgment for the judgment the trial court made on the motion.11
Moreover, just “because a trial court may decide a matter within its discretion in a
different manner than an appellate court would in a similar circumstance does not
demonstrate that an abuse of discretion has occurred.”12
8
See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877-78 (Tex. 2001).
9
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
10
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
11
See In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015)
(citing Walker, 827 S.W.2d at 839-40); Wright, 79 S.W.3d at 52.
12
Palladian Bldg. Co., Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430,
433 (Tex. App.—Fort Worth 2005, no pet.) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
11
The Act requires that plaintiffs suing health care providers for medical
malpractice must file an “expert report” not later than the 120th day after the date
the health care provider answered the suit. 13 Under the Act, an “expert report” is a
written report by an expert that provides a fair summary of the expert’s opinions, as
of the date of the report, about the standards of care that apply to the health care
providers, the manner in which the medical care provided to the patient failed to
meet that standard, and how the medical provider’s failure to meet the required
standard of care caused the patient’s injury. 14 The Texas Supreme Court has
explained that, to comply with the Act, the report “must discuss the standard of care,
breach, and causation with sufficient specificity to inform the defendant of the
conduct the plaintiff has called into question and to provide a basis for the trial court
to conclude that the claims have merit.” 15 Reports authored by physicians or other
medical experts that do no more than provide conclusory statements about the
standard of care that applies, how the provider breached the standard, and causation
13
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
14
Id. § 74.351(r)(6).
15
Palacios, 46 S.W.3d at 875.
12
do not fulfill the purposes of the Act.16 Instead, under the Act, “‘the expert must
explain the basis of his statements to link his conclusions to the facts.’” 17
Recently, the Texas Supreme Court explained that “the purpose of the expert
report requirement is to weed out frivolous malpractice claims in the early stages of
litigation, not to dispose of potentially meritorious claims.” 18 After noting the
report’s purpose, the Court then explained that in ruling on motions to dismiss health
care liability claims, the trial court “need only find that the report constitutes a ‘good
faith effort’ to comply” with statutory requirements, as the expert, in the report, is
not required to “‘marshal all the claimant’s proof[.]’” 19
In deciding whether an expert’s report in a health care liability case is
adequate to comply with the requirements of the Act, courts are to “consider only
the information contained within the four corners of the report.”20 Thus, as to a health
care provider’s complaint that a report fails to adequately explain how the provider
16
Id. at 879.
17
Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)).
18
Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per
curiam).
19
Id. (quoting Palacios, 46 S.W.3d at 878-79).
20
Id. (citing Palacios, 46 S.W.3d at 878).
13
caused the patient’s injury, courts should focus on “whether the expert has explained
how the negligent conduct caused the injury. Whether this explanation is believable
should be litigated at a later stage of the proceedings.” 21
Analysis
Qualifications
As both Dr. Hendryx and Kingwood Medical argue that Dr. Roberts was not
qualified to render opinions about Carolina’s care because he was no longer actively
engaged in practicing medicine, we address their arguments about whether the trial
court abused its discretion by finding he is actively practicing medicine before
addressing Kingwood Medical’s remaining issues. In evaluating an expert’s
qualifications, the qualifications the expert possesses must be evident from the four
corners of the report and from the resume that accompanies the expert’s report.22 We
use an abuse-of-discretion standard when reviewing the trial court’s decision that an
expert in a health care liability case has the qualifications that are required to allow
21
Id. at 226.
22
See Palacios, 46 S.W.3d at 878; Christus Health Se. Tex. v. Broussard, 267
S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.).
14
the expert to express opinions about whether the medical care that a patient received
from the health care provider violated the standards that apply to the provider. 23
To qualify as an expert in a health care liability claim against a physician, the
Act requires the expert to be a physician who
(1) is practicing medicine at the time such testimony is given or was
practicing medicine 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 of medical care. 24
The Act goes on to define the terms “practicing medicine” as including, but are not
limited to, “training residents or students at an accredited school of medicine or
osteopathy or serving as a consulting physician to other physicians who provide
direct patient care, upon the request of such other physicians.” 25 In assessing the
expertise of individuals who author reports for health care liability claims against
physicians, trial courts are authorized to consider whether the author of the report is
23
Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.]
2014, pet. denied) (citing Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996)).
24
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a).
25
Id. § 74.401(b).
15
“board certified or has other substantial training or experience in an area of medical
practice relevant to the claim” 26 and whether the author is “actively practicing
medicine in rendering medical care services relevant to the claim.” 27 With respect to
whether the author of an expert report that is filed in a health care liability claim is
qualified to express opinions on causation, whether the defendant in the case is a
physician or a hospital, the Act requires the report’s author to be “a physician who
is otherwise qualified to render opinions on such causal relationship under the Texas
Rules of Evidence[.]” 28
Section 74.402 of the Act addresses the qualifications for experts who author
expert reports in health care liability cases that are critical of the care provided to
patients by hospitals. To qualify as an expert on the subject of the medical care a
patient received at a hospital, the Act states the person may qualify as an expert
witness only if the person
(1) is practicing health care in a field of practice that involves the same
type of care or treatment as that delivered by the defendant health care
provider, if the defendant health care provider is an individual, at the
time the testimony is given or was practicing that type of health care at
the time the claim arose;
26
Id. § 74.401(c).
27
Id.
28
Id. § 74.351(r)(5)(C).
16
(2) has knowledge of accepted standards of care for health care
providers 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 of health care.29
The term “‘practicing health care’” is defined in the Act to include “training health
care providers in the same field as the defendant health care provider at an accredited
educational institution[,]” or “serving as a consulting health care provider and being
licensed, certified, or registered in the same field as the defendant health care
provider.”30 Nevertheless, as to hospitals, the Act allows courts to find that an
individual who is practicing medicine in a field of practice that involves the same
type of treatment involved in the claim as the treatment provided by the health care
provider to have the qualifications needed to be knowledgeable about the standards
of care that apply to hospitals.31 In determining whether the author of a report is
qualified to express opinions about a health care provider, and if the author’s
qualifications are based on his training and experience, the Act authorizes courts to
consider whether the person who authored the expert report is “certified by a
29
Id. § 74.402(b).
30
Id. § 74.402(a) (emphasis added).
31
Id. § 74.402(b)(1).
17
licensing agency of one or more states of the United States or a national professional
certifying agency, or has other substantial training or experience, in the area of health
care relevant to the claim[.]” 32 As to hospitals, the Act provides that trial courts also
consider if the author of a report critical of a hospital “is actively practicing health
care in rendering health care services relevant to the claim.” 33
Dr. Roberts’ expert report and resume show that before October 2012, he was
actively involved in and had a great deal of experience writing, teaching, and
practicing medicine in the field of obstetrics, including the more specialized field of
high-risk pregnancies. His report shows that currently, he works as a consultant in
the field of perinatal medicine. As a consultant in that field, the trial court could have
inferred that Dr. Roberts consults on medical matters that arise in a period
immediately before or after a baby’s birth. Nevertheless, the name “Perinatal
Consultants” does not reveal whether Dr. Roberts has consulted with patients and
doctors (as opposed to consulting only with lawyers) on matters that concern
childbirth, either in May 2015, when Carolina was treated at Kingwood Medical, or
in January 2017, when he signed the report.
32
Id. § 74.402(c).
33
Id.
18
The Texas Supreme Court has acknowledged that not every licensed medical
doctor is automatically qualified to provide a court with an opinion on all medical
matters. 34 Nevertheless, the Court cautioned lower courts that the Act’s
qualifications test “‘should not be too narrowly drawn[.]’” 35 The Court explained
that the criteria spelled out in the Act “cannot be rigidly applied because it is
expressly nonexclusive.”36 As to the requirement in the Act that a physician be
actively practicing medicine at the time identified in the Act, the term “practicing
medicine” is defined to include (but is not limited to) “serving as a consulting
physician to other physicians who provide direct patient care, upon the request of
such other physicians.” 37
The information that Dr. Roberts provided to the trial court shows that he is
currently licensed, that he is board certified in multiple fields relevant to delivering
babies, and that he is currently consulting in the field of medicine that is relevant to
the Duartes’ claims. Currently, Dr. Roberts consults on matters involving new-born
34
Benge v. Williams, 548 S.W.3d 466, 472 (Tex. 2018) (quoting Larson v.
Downing, 197 S.W.3d 303, 305 (Tex. 2006) (per curiam)).
35
Id.
36
Id.
37
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(b).
19
babies, a field that is directly relevant to the issues that are involved in the Duartes’
case. We conclude the trial court was not required to rigidly apply the qualifications
test by assuming that Dr. Roberts consults only with lawyers and to assume that he
does not consult with doctors or other health care providers on matters involving
perinatal medicine.
Nonetheless, even if the information the trial court had about Dr. Roberts’
consulting work was incomplete, the Act gave the trial court the right to excuse the
active practice requirement if, “under the circumstances, the court determines that
there is a good reason to admit the expert’s testimony.” 38 Here, the trial court
specifically found that the exception applied, basing its decision on Dr. Roberts’
experience training others and teaching in the field of medicine that is relevant to the
issues in dispute.39 The trial court’s decision to relax the active practice requirement
is stated on the record, and the trial court did not abuse its discretion by relaxing the
active practice requirement under the circumstances in this case. 40
38
Id. §§ 74.401(d), 74.402(d).
39
The trial court’s order states that “[t]o the extent there is any deficiency [in
the information Dr. Roberts provided in his report about his qualifications],
particularly in regards to ‘[p]racticing medicine’ this Court finds good reason to
admit William E. Robert[s], M.D.’s testimony based upon his extensive years of
experience, training[,] and teaching in the field at issue in this case.”
40
Id. §§ 74.401(d), 74.402(d).
20
In its brief, Kingwood Medical contends the trial court abused its discretion
relaxing the active practice of medicine requirement because the Legislature never
intended the exception to apply unless, from the information the expert provided to
the court, the court could positively determine that the expert was in fact no longer
actively practicing medicine. Kingwood Medical argues the exception does not
apply when the author of the expert report simply “failed to satisfy the criteria of
[section 74.402,] subsections (a) to (c)[,]” which are the subsections that contain the
criteria courts are to follow in deciding whether an expert is “practicing health care.”
We disagree that the exception, found in subsection (d), applies only when the
information before the court about a physician who authors an expert report
affirmatively shows that the physician is no longer practicing medicine. Subsection
(d) allows trial courts to depart from the other criteria the Legislature set out in
subsections (a)-(c) if the trial court finds that “there is good reason to admit the
expert’s testimony,” and it states that reason on the record. 41 Put simply, the
Legislature did not restrict the way trial courts apply the exception to prevent the
trial court from applying it under the circumstances that were before it here.
41
Id.
21
Additionally, Kingwood Medical argues that the information that Dr. Roberts
provided to the trial court fails “to establish he has knowledge of the standard of
care” that applies to the hospital “in this situation.” Dr. Roberts’ report, however,
states that he has “a thorough understanding of all standards of care applicable in
this case through [his] knowledge, training, and experience.” The trial court could
reasonably construe Dr. Roberts’ statement about his knowledge of the standard of
care to mean that he was familiar with the standard of care that applies to hospitals
based upon his experience as a board-certified obstetrician, his experience as the
chief of obstetrics and experience as chairman of the obstetrics department when he
worked at hospitals, his experience writing books and articles, and his experience
teaching other physicians about the care a mother needs to allow a baby to survive
the mother’s high-risk pregnancy. 42 We conclude the trial court did not abuse its
discretion by finding Dr. Roberts possessed the qualifications needed to author an
expert report critical of the care that Carolina received from Kingwood Medical.
42
See Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 198 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (“If the doctor is familiar with the
standard of care for other health care providers based on experience working with or
supervising them, then he can be qualified to render an opinion.”); see also Baylor
Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278 S.W.3d 552,
558-59 (Tex. App—Dallas 2009, no pet.); San Jacinto Methodist Hosp. v. Bennett,
256 S.W.3d 806, 814 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
22
Causation
Lastly, Kingwood Medical argues that because Dr. Roberts’ opinions on
causation are conclusory and speculative, the trial court should have agreed with its
claims that his report did not constitute a good faith effort to comply with the
requirements of the Act. 43 Kingwood Medical’s argument is premised on its apparent
belief that Dr. Roberts’ opinions about the hospital’s care revolve entirely around
his assumption that Cypress Creek’s emergency responders passed on the
information to the hospital’s nurses that Carolina’s baby was not in a head-down
position in her womb. Kingwood Medical concludes that Dr. Roberts’ criticisms
about the hospital’s care, as to causation, were based entirely on that one assumption.
To comply with the causation requirements in the Act, the physician who
authors the expert report must link his conclusions to the facts involved in the
patient’s treatment. 44 While Kingwood Medical assumes that Dr. Roberts relied
entirely on an assumption that the emergency responders told the nurses that
Carolina told them her baby was in a breech position at the last appointment she had
with her obstetrician, the trial court could have reasonably concluded that Carolina
43
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).
44
See Wright, 79 S.W.3d at 53.
23
gave the nurses that same information after she arrived at the hospital. For example,
Dr. Roberts’ report indicates that Carolina told one of Kingwood Medical’s nurses
that she wanted them to perform an ultrasound. From this information, the trial court
could reasonably infer that Carolina told the nurses that she feared her baby was not
properly positioned in her womb. Dr. Roberts’ report, when read as a whole,
suggests the nurses obtained information about the baby’s position but then failed to
act in a timely manner to pass that information on to Dr. Hendryx. In evaluating
Kingwood Medical’s arguments, the trial court was not required to focus on any one
statement in Dr. Roberts’ report. Instead, the trial court was entitled to read the report
in its entirety, and in context, in determining whether Dr. Roberts’ report established
that the Duartes have potentially meritorious claims. 45
When explaining causation “the expert need not prove the entire case or
account for every known fact; the report is sufficient if it makes ‘a good-faith effort
to explain, factually, how proximate cause is going to be proven.’” 46 Here, the trial
court could have reasonably found that Dr. Roberts’ report represented a good faith
effort to explain how the hospital’s acts and omissions proximately caused the baby
45
See Abshire, 563 S.W.3d at 223; Benavides v. Garcia, 278 S.W.3d 794, 799
(Tex. App.—San Antonio 2009, pet. denied).
46
Abshire, 563 S.W.3d at 224 (quoting Columbia Valley Healthcare Sys., L.P.
v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)).
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to be delivered in a buttocks-down position. The report also explains why, had
Carolina had a cesarean, the baby would have lived. The report traces the failure of
the hospital’s nurses to convey critical information about Carolina’s history to Dr.
Hendryx in a timely manner to the delays that prevented a surgical procedure that
Dr. Roberts’ report indicated would have saved the baby’s life.
We conclude that Dr. Roberts’ report provides a straightforward link between
the treatment that Carolina received from Kingwood Medical and her baby’s death.47
We further conclude that the opinions that Dr. Roberts expressed in his report are
not overly conclusory, as the facts that Dr. Roberts relied on in the medical records
are tied to his ultimate conclusions.48
For the reasons discussed, we overrule the appellants’ issues and affirm the
trial court’s order.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on June 4, 2018
Opinion Delivered March 7, 2019
Before McKeithen, C.J., Kreger and Horton, JJ.
47
See id. at 227.
48
See Wright, 79 S.W.3d at 52.
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