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 72nd 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 5th, 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 120th 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,
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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
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“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 [1st 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 . . . .
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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.
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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
elem ents of the re port are found d eficien t, the court may grant one 30-day extension to the claimant in order
to cure the deficiency.” T E X . C IV . P R A C . & R E M . C O D E A N N .§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 am end could be gran ted. See T E X . R E V . C IV . S TA T . A N N . 4590i, §13.01(g)
(repealed effective September 1, 20 03) (stating that leave to am end co uld be granted if the default was not
intentional or the result of conscious indifference but rather the result of accident or mistake). Furthermore,
Ash mo re solicited, here and below, leave to cure any deficiency found in the report tendered. Given the
requ est, we dee m it ap prop riate to re ma nd the cause so the trial court may decide whether to exercise the
discretion vested in it by §74 .351 (c).
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