guy-a-wells-md-facc-v-mary-ashmore-individually-and-as-surviving ( 2006 )

NO. 07-06-0232-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 15, 2006 ______________________________

GUY A. WELLS, M.D.,

Appellant

v.

MARY ASHMORE, individually and as surviving spouse of

LAWRENCE ASHMORE, deceased, and FRANCES MCFARLAND,

Appellees

_________________________________

FROM THE 72^nd DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-532,780; HON. RUBEN REYES, PRESIDING _______________________________

Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

This appeal involves a health care liability claim prosecuted by Mary Ashmore, individually and as surviving spouse of Lawrence Ashmore, deceased, and Frances McFarland (collectively referred to as Ashmore). Guy A. Wells, M.D., (Wells) appeals from an order denying his objections to the medical expert report of Ashmore. He contends that the trial court abused its discretion in denying his objections because the report "fail[ed] to set forth the element of causation in a non-conclusory manner as required by American Transitional Care Centers v. Palacios, and its progeny." We agree and reverse the order. Background

Lawrence Ashmore was diagnosed with a heart attack in Artesia, New Mexico, and transferred to Covenant Hospital in Lubbock, on September 5, 2003. At the time, he was under the care of Wells. On the night of the 5^th, Lawrence developed seizures and irregular heart rhythms and died the next day. His surviving wife and daughter then sued Wells for failing to provide adequate care to him.

Dispute arose below regarding the sufficiency of the expert report tendered by Ashmore per §74.351 of the Texas Civil Practice and Remedies Code. According to Wells, it failed to adequately explain, among other things, how the alleged deficiencies in his performance caused Lawrence's death. Because of that perceived defect, Wells moved to dismiss the case with prejudice. The trial court denied the motion, and the appeal ensued.

Applicable Law

One suing for medical malpractice must:

[n]ot later than the 120^th day after the date the original petition was filed, serve on each party . . . one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted . . . .

Tex. Civ. Prac. & Rem. Code Ann. art. §74.351(a) (Vernon Supp. 2006). Should the claimant not do so and upon motion, the trial court must enter an order 1) awarding the movant reasonable attorney's fees and costs of court incurred and 2) "dismiss[ing] the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim." Id. §74.351(b)(1) & (2). On the other hand, if the report is filed yet challenged, the challenge must be sustained and the cause dismissed ". . . if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report . . . ." Id. §74.351(l); see Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (stating that the cause must be dismissed if the trial court determines that the report does not represent a good faith effort to comply with the definition of an expert report). Moreover, the term "expert report" has been defined by statute to mean "a written report by an expert that provides 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 . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm or damages claimed." Id. §74.351(r)(6).

To constitute a "fair summary" of the expert's opinions, the document must contain more than conclusions. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). Instead, the expert must provide enough data to not only inform the defendant of the specific conduct called into question but also provide the trial court means to preliminarily assess whether the claim has factual basis. Bowie Memorial Hospital v. Wright, 79 S.W.3d at 52; Chisholm v. Maron, 63 S.W.3d 903, 906 (Tex. App.-Amarillo 2001, no pet.). For instance, in Bowie, the expert "simply opine[d] that [the patient] might have had 'the possibility of a better outcome' without explaining how Bowie's conduct caused injury . . . ." Bowie Memorial Hospital v. Wright, 79 S.W.3d at 53 (emphasis added). Given the missing explanation, the report "lack[ed] information linking the expert's conclusion . . . to Bowie's alleged breach . . .," according to the Supreme Court. Id. So too did the missing information render the document conclusory, the court continued, and something short of "a good faith effort to meet the Act's requirements." Id. at 54. Thus, it determined that dismissal of the suit was mandated. Id.

So, what we learn from Palacios, Bowie, and like opinions is that to be sufficient an export report must include more than the mere statement that a purported breach of an applicable standard of care caused a particular outcome. Rather, information explaining the link between the standard of care, its breach, and the ensuing injury must be contained within its four corners. So, when addressing the topic of causation, an expert is required to provide some factual information describing how and why the breach resulted in the injury. And, while this explanation need not equate a marshaling of evidence, Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex. App.-Houston [1^st Dist.] 2001, no pet.), it must be more than conclusions.

Application of the Law

The expert report at bar was provided by Dr. Howard I. Kurz. In it, he stated the standards of care applicable in circumstances confronting Wells. So too did the expert specify the manner in which Wells allegedly breached those standards. Yet, when it came to connecting the purported defaults to the death of Lawrence, he opined:

Mr. Ashmore would within a reasonable degree of medical certainty survivedhad the above mentioned measures been performed upon arrival. However, it is still possible he would have survived had Dr. Wells responded and taken appropriate measures when first paged by nursing staff.

* * *

It is my opinion that Dr. Wells breached the applicable standard of care in his treatment of Mr. Ashmore . . . and these acts of or omissions proximately caused Mr. Ashmore's death . . . .

Missing from these opinions is information explaining the link between the alleged defaults committed by Wells and Mr. Ashmore's death. Simply put, how or why they resulted in his death went unmentioned. Similarly unmentioned by Kurz is the condition of which Lawrence ultimately died. This is of import because elsewhere in his report the expert uttered that 1) increased doses of levophed and dopamine were administered to Mr. Ashmore "which lead to peripheral vasoconstriction and hypoperfusion as manifested my [sic] mental confusion and kidney shutdown" and 2) administering "large doses of pressors caus[ed] tissue hypoperfusion with kidney shutdown." Had the expert related that death resulted from vasoconstriction, hypoperfusion, mental confusion, or kidney shutdown, then it may be arguable that the report illustrated the requisite nexus between the purported conduct of Wells and the death of his patient. But, without specifying whether Ashmore died of heart failure, kidney failure, mental confusion, a combination of one or more of those conditions or of something else, Kurz provided us with no factual data tying the administration of those drugs to Lawrence's death. Simply put, without knowing what Lawrence ultimately died of we are left to only guess at the relationship between supposed bad acts on the part of the doctor and the death.

In sum, the allegations made by Kurz regarding causation were mere conclusions because they did not explain how the purported defaults caused Lawrence's death; the expert merely concluded that they did. See Nelson v. Ryburn, No. 07-05-0166-CV, 2006 Tex. App. Lexis 3081 at *7 (Tex. App.-Amarillo April 18, 2006, no pet.). So, the report fell short of constituting a good faith effort to provide a fair summary between the alleged misconduct of Wells and its relationship to Mr. Ashmore's death, and the trial court had no discretion but to sustain Wells' objections.

Accordingly, we reverse the order of the trial court denying Wells' objections to the report and remand the cause for further proceedings. ⁽¹⁾

Brian Quinn

Chief Justice

1. Statute provides that if "an expert report has not been served within the period specified . . . because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann.§74.351(c) (Vernon Supp. 2006). Omitted from this language is that found in its predecessor and requiring the claimant to have acted without intent or conscious indifference before leave to amend could be granted. See Tex. Rev. Civ. Stat. Ann. 4590i, §13.01(g) (repealed effective September 1, 2003) (stating that leave to amend could be granted if the default was not intentional or the result of conscious indifference but rather the result of accident or mistake). Furthermore, Ashmore solicited, here and below, leave to cure any deficiency found in the report tendered. Given the request, we deem it appropriate to remand the cause so the trial court may decide whether to exercise the discretion vested in it by §74.351(c).

4). One such exception is a search conducted pursuant to voluntary consent. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Before consent to search is deemed voluntary, the state must prove by clear and convincing evidence that the consent was freely and voluntarily given. Id.; Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985). The burden is on the prosecution to show that consent was positively and unequivocally given without duress or coercion. Meeks, 692 S.W.2d at 509. Whether consent was given voluntarily is a question of fact to be determined from the totality of the circumstances surrounding the giving of consent. Id. at 510. The scope of a consensual search is determined by what a reasonable person would have expected the search to include. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). In a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).

In the present case, the record reflects that the investigators did threaten to arrest Amanda on the day that they retrieved the letters. However, the record further reflects that the investigators had authority to arrest Amanda for harboring a fugitive when appellant was found in her home after she had reported that he was not there. When Amanda expressed concern that she had no one to care for her child should she be arrested, the investigators informed her that Children's Protective Services could be called to take temporary custody of the child. The investigators made these threats independently of any investigation of appellant and the threats were not made in an attempt to elicit incriminating evidence to be used against appellant. Further, any coercive effect of the threats was attenuated when the investigators, as they were leaving Amanda's home, informed her that she was not going to jail.

After the investigators left with appellant, Amanda's mother advised her that she needed to cooperate with the investigation of appellant. At her mother's urging, Amanda contacted the investigators and informed them that she had "some letters that they could look at . . . ." Only two investigators went to Amanda's residence to retrieve the letters. When the investigators entered Amanda's residence, she had a group of letters separated into a bundle. Amanda testified that she told the investigators that she would go through the letters and call them if she found "something." She testified that she did not intend for the investigators to take all of the letters, but she did not identify which letters she intended to turn over or which letters she had intended to keep. Greg Tyra, one of the investigators, testified that Amanda simply handed a bundle of letters to the investigators and that this bundle included the letter that the State sought to admit in this case.

Viewing the totality of the circumstances surrounding Amanda's consent, we conclude that Amanda positively and unequivocally consented to the investigators' intrusion into her residence to retrieve the letters and that this consent was not the result of coercion.

As the testimony regarding the scope of the consensual search was in direct conflict, we must defer to the trial court's factual determination regarding how the letter sought to be admitted was obtained. Romero, 800 S.W.2d at 543. Further, we conclude that a reasonable person would have expected that the scope of the consensual search would have included the entire bundle of letters based on the totality of the circumstances surrounding Amanda's consent. See Jimeno, 500 U.S. at 251.

Concluding that Amanda voluntarily gave the investigators consent to search and that the investigators did not exceed the scope of that consent, we overrule appellant's second issue.

Issue 3: Relevance

Finally, appellant contends that the trial court erred in admitting the letter because the letter was not relevant because it was dated approximately eight months prior to the assault for which appellant was being tried. The State contends that it provided sufficient evidence to create a fact question as whether the letter was written after and in reference to the alleged assault, and the determination of the letter's relevance was not an abuse of discretion.

Relevant evidence is evidence which has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401. The determination of the relevance of evidence lies largely within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion.  Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993).

In the present case, it is undisputed that the letter in question bears the date of January 16, 2004. However, Amanda testified that she received the letter in 2005 and that the letter was misdated. Amanda further testified that she keeps letters in the envelopes she receives them in and that the envelope which contained this letter was postmarked January 2005. However, Amanda also testified that she could not be certain that she received that letter in that envelope. Chief Deputy Larry Lee testified that appellant was incarcerated in the Wilbarger County Jail from September 13, 2004 until February 4, 2005, that the return address on the envelope that contained the letter was the address of the Wilbarger County Jail, and that the records do not indicate that appellant had ever been incarcerated in the Wilbarger County Jail prior to September of 2004. Thus, a fact question existed as to whether the letter was written before or after the alleged assault.

It was for the fact finder to resolve inconsistencies in testimony and to resolve the issue of whether the letter was written at a time when it could be referencing the assault on Winston Jones. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Considering the conflict in the testimony concerning when this letter was written, we cannot say that the trial court's determination that the letter was relevant to appellant's trial for assault constituted a clear abuse of discretion. Consequently, we overrule appellant's third issue.

Conclusion

Having overruled each of appellant's issues, we affirm the judgment of the trial court.

Mackey K. Hancock

Justice

Publish.

1. Further reference to Texas Rules of Evidence will be by reference to "Rule __."