Daniel L. Foster, D.O. v. Mary Richardson ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-216-CV
DANIEL L. FOSTER, D.O. APPELLANT
V.
MARY RICHARDSON APPELLEE
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In this interlocutory appeal concerning the adequacy of an expert report
filed in a health care liability claim under chapter 74 of the civil practice and
remedies code (chapter 74),1 appellant Daniel L. Foster, D.O. contends in one
issue that the trial court erred by denying his motion to dismiss. We affirm in
part and reverse and remand in part.
1
… See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (Vernon
2005 & Supp. 2009).
Background Facts
Facts alleged in Richardson’s petition
Appellee Mary Richardson injured her left leg while working for an airline
in December 2006. Hospital personnel immobilized her knee, initially told her
that she had sustained a knee sprain, and instructed her to see her primary
physician for treatment. Richardson’s primary physician referred her to Dr.
Angelo Otero for an orthopedic consultation.2 On January 22, 2007, Dr. Otero
diagnosed Richardson with tears of her anterior cruciate ligament (ACL) and
lateral meniscus in her left knee. On February 15, Dr. Otero surgically
reconstructed that knee; he then released her for light duty at work on February
26 and for full duty on May 14.
On June 21, because she was still experiencing pain in her leg,
Richardson saw Dr. Foster,3 who diagnosed her as having complex regional pain
syndrome in her left leg and recommended that she participate in physical
therapy. However, on July 27, Richardson saw an orthopedic surgeon whose
2
… “Orthopedics” (or “orthopaedics”) is the “medical speciality concerned
with the preservation, restoration, and development of form and function of the
musculoskeletal system, extremities, spine, and associated structures by
medical, surgical, and physical methods.” Stedman’s Medical Dictionary 1383
(28th Ed. 2006).
3
… The record does not indicate who referred Richardson to Dr. Foster.
2
diagnostic tests revealed that Richardson had a partially-healed ankle fracture.
To treat the fracture, the surgeon had to rebreak Richardson’s ankle and insert
metal hardware into it. Richardson asserts that her leg is disfigured and that
her ankle will never function normally because of Dr. Otero’s and Dr. Foster’s
failures to timely diagnose and treat the fracture.
Procedural history
Dr. Foster and Dr. Otero 4 answered Richardson’s allegations, and then
Richardson served both defendants with the expert report and curriculum vitae
of Bryan S. Drazner, M.D. concerning their alleged deficiencies in providing
Richardson’s care, as required by section 74.351 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Dr. Foster
filed a motion to dismiss under chapter 74, claiming that Dr. Drazner’s report
is deficient. After the trial court heard arguments from the parties, it denied Dr.
Foster’s motion. Dr. Foster filed his notice of this interlocutory appeal. See id.
§ 51.014(a)(9) (Vernon 2008); Lewis v. Funderburk, 253 S.W.3d 204, 207–08
(Tex. 2008).
4
… The claims against Dr. Otero are still pending and are not at issue in
this appeal.
3
The Adequacy of Dr. Drazner’s Expert Report
In one issue, Dr. Foster asserts that the trial court erred by denying his
motion to dismiss and concluding that Dr. Drazner’s expert report complies with
chapter 74.
Standard of review
We review a trial court’s denial of a motion to dismiss under section
74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Collini v. Pustejovsky, 280
S.W.3d 456, 461 (Tex. App.—Fort Worth 2009, no pet.) (op. on remand);
Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet.
denied) (op. on remand). We also review a trial court’s decision on whether a
physician is qualified to offer an expert opinion in a health care liability claim
under an abuse of discretion standard. Collini, 280 S.W.3d at 461; Moore, 269
S.W.3d at 139.
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); see Collini, 280 S.W.3d
at 461. Merely because a trial court may decide a matter within its discretion
4
in a different manner than an appellate court would in a similar circumstance
does not demonstrate that an abuse of discretion has occurred. Downer, 701
S.W.2d at 242; Collini, 280 S.W.3d at 461. A trial court does not abuse its
discretion if it commits a “mere error in judgement.” See E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Collini, 280
S.W.3d at 461.
The statutory requirements of expert reports
A plaintiff must serve an expert report that addresses liability and
causation on each defendant no later than the 120th day after the plaintiff files
a health care liability claim. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (j).
If an expert report has not been served on a defendant within the 120-day
period, then on the motion of the affected defendant, the trial court must
dismiss the claim with prejudice and award the defendant reasonable attorney’s
fees and costs. Id. § 74.351(b). A report “has not been served” under the
statute when it has physically been served but a court finds it deficient. See
id. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008); Lewis,
253 S.W.3d at 207–08.
A report is deficient (therefore subjecting a claim to dismissal) when it
“does not represent an objective good faith effort to comply with the [statute’s]
definition of an expert report.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l);
5
Collini, 280 S.W.3d at 461–62. While the expert report “need not marshal all
the plaintiff’s proof,” it must provide a fair summary of the expert’s opinions as
to the applicable standards of care, the manner in which the care rendered by
the physician failed to meet the standards, and the causal relationship between
that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878; Collini, 280 S.W.3d at
462.
To qualify as a good faith effort, 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.” Palacios, 46
S.W.3d at 875; Benish v. Grottie, 281 S.W.3d 184, 194 (Tex. App.—Fort
Worth 2009, pet. denied). A report does not fulfill this requirement if it merely
states the expert’s conclusions or if it omits any of the statutory requirements.
Palacios, 46 S.W.3d at 879; Benish, 281 S.W.3d at 194.
The information in the report “does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at
trial.” Palacios, 46 S.W.3d at 879. The expert report must “contain
sufficiently specific information to demonstrate causation beyond mere
6
conjecture.” Farishta v. Tenet Healthsystem Hosps. Dallas, Inc., 224 S.W.3d
448, 453 (Tex. App.—Fort Worth 2007, no pet.).
The facts alleged in Dr. Drazner’s report
According to his report, Dr. Drazner physically evaluated Richardson on
July 26, 2007, and he became concerned about aspects of her prior care at
that time. During his examination of Richardson, he noticed a “profound range
of motion deficit of the left ankle, left ankle edema, and left calf pain prior to
the receipt of diagnostic testing.” He also reviewed Dr. Foster’s and Dr.
Otero’s records of Richardson’s treatment.
Dr. Drazner’s report recites that after Richardson’s initial injury in
December 2006, hospital personnel examined her left foot, ankle, and knee,
and they “inexplicably opined” that she had a knee sprain or strain, without
“any positive findings about the knee objectively.” Dr. Otero examined
Richardson about a month later by taking x-rays that, although resulting
negative, led Dr. Otero to conclude that there was an “acute tear of the [ACL].”
Dr. Otero ordered an MRI scan, but the scan did not reveal signs of an ACL
tear, and it only showed minor abnormalities about the knee’s meniscus that
existed because of knee surgery that Richardson had previously received. Thus,
the report alleges that Dr. Otero operated on Richardson’s knee without an
7
adequate medical basis and despite Richardson’s complaints to him about pain
in her ankle.
The report continues by describing Richardson’s attempt to get a second
opinion about her pain from Dr. Foster after Dr. Otero’s surgery. It states in
relevant part,
Although Dr. Foster noted that Ms. Richardson’s left calf was
smaller than her right calf, and superficial tenderness to palpation,
Dr. Foster did not perform a range of motion on Ms. Richardson’s
left ankle or identify the ligaments that he examined. Dr. Foster
diagnosed Ms. Richardson’s problem as “complex regional pain
syndrome of the left lower extremity.” Dr. Foster arrived at his
opined diagnosis, failing to document the hallmarks of the
condition, well delineated in the [American Medical Association]
Guide, Fifth Edition, to include hypersensitivity to light touch,
withdrawal behavior, hyperhidrosis, hyperfusion, mottling and hair
and nail bed changes.
The Standard of Care Applicable to both Dr. Otero and Dr. Foster:
It is the standard of care for a physician who is examining a
patient’s leg injury to perform a thorough [orthopedic] examination
in order to determine the nature and extent of the injury. It is also
the standard of care when examining a leg injury, to perform full
range of motion testing regarding the injured leg, including the
knee, the ankle, and the foot, and to detail the findings of the
examination. . . .
Breach of Standard of Care:
From their records, neither Dr. Otero nor Dr. Foster performed
a thorough examination of Ms. Richardson’s left leg, including her
ankle and foot. . . . Without a complete [orthopedic] examination,
including full range of motion testing, and the obtainment of
appropriate objective diagnostic tests on Ms. Richardson’s ankle
8
and foot, an accurate diagnosis was not possible. . . . Although
Ms. Richardson may have sprained her knee, it was later
discovered (not by Dr. Otero or Dr. Foster) that Ms. Richardson had
fractured her left distal fibula. Nevertheless, . . . Dr. Foster had
ignored the patient’s complaints of calf pain and tenderness, . . .
attributing her complaints as a complication of the knee surgery
performed by Dr. Otero.
Results of Defendants’ Breach of the Standard of Care:
. . . If Dr. Otero and Dr. Foster had performed a complete
examination of Ms. Richardson’s left leg, including her tibula/fibula,
ankle and foot, and/or if they had referred Ms. Richardson for a
second opinion, while treating her conservatively to determine the
true nature of her injury, an unnecessary knee surgery would not
have been performed. Moreover, due to the physicians’ failure to
correctly diagnose Ms. Richardson’s injury, her fracture went
completely undetected for over seven months and the patient was
subjected to . . . a prolonged period of pain and requirement for
exhaustive narcotic enalyens, usage of a bone growth stimulator
and another surgery to remove painful surgical hardware, a
prolonged period of disability, and . . . loss of hind foot motion, . . .
as well as moderate chronic pain. As a result, it is my opinion that
Ms. Richardson will suffer from impairments that could have been
prevented had her injury been properly and timely diagnosed and
treated before the fracture had healed incorrectly failed to heal,
moved to non-union, and required further exhaustive care. 5
5
… The words “failed to heal, moved to non-union, and required further
exhaustive care” are hand written.
9
The adequacy of Dr. Drazner’s report as to causation
In the first part of his only issue, Dr. Foster contends that Dr. Drazner’s
report is deficient because Dr. Drazner’s statements related to the cause of
Richardson’s injuries are factually unsupported and inadequately explained and
because the report does not differentiate Dr. Foster’s and Dr. Otero’s actions
that allegedly contributed to Richardson’s injuries. 6
The factual explanation of causation
Dr. Foster asserts that Richardson’s allegedly unnecessary knee surgery
cannot have any causal link to Dr. Foster’s diagnosis because Richardson’s
petition and Dr. Drazner’s report establish that Dr. Foster first saw Richardson
about four months after the surgery. Dr. Foster also argues that Dr. Drazner’s
report “makes no attempt to explain how Dr. Foster’s alleged breach—the one
month delay in diagnosis that occurred six months after the injury—had any
causal relationship with the corrective [ankle] surger[ies] performed a little over
one month later.”
6
… Some of Dr. Foster’s contentions during oral argument regarded the
alleged vagueness of Dr. Drazner’s statements regarding Dr. Foster’s standards
of care. But Dr. Foster’s argument in his brief concerns the adequacy of Dr.
Dranzer’s report as to causation, not standards of care, and we will not
consider whether the report was adequate as to standards of care. See Tex.
R. App. P. 39.2 (explaining that the purpose of oral argument is to clarify the
written arguments in briefs); El Paso Natural Gas Co. v. Strayhorn, 208 S.W.3d
676, 681 (Tex. App.—Texarkana 2006, no pet.).
10
Richardson says that these arguments misunderstand “the nature of the
claims brought against Foster” and represents in her brief that her claims
against Dr. Foster are based on “other injuries caused by his negligence,”
specifically referring to her pain caused by Dr. Foster’s failure to properly
diagnose and treat the ankle injury. Undoubtedly, Dr. Foster is correct that he
could not have caused Richardson’s knee surgery, and Richardson has
acknowledged this fact. However, while Richardson’s petition alleges that both
doctors’ acts, “singularly or in combination, were a proximate cause” of her
damages that include expenses for medical care that could relate to the knee
surgery or the ankle surgeries (to initially treat the ankle fracture and to remove
the surgical hardware), the petition also asks for damages related to physical
pain and mental anguish suffered in the past and to be suffered in the future
and physical disability and disfigurement suffered in the past and to be suffered
in the future.
Dr. Drazner’s report explains that Dr. Foster’s alleged misdiagnosis caused
Richardson to suffer “a prolonged period of pain” and “a prolonged period of
disability.” Thus, assuming that Dr. Drazner correctly concluded that Dr.
Foster’s diagnosis of complex regional pain syndrome was erroneous and that
he should have diagnosed her with an ankle fracture, Dr. Drazner’s report links
11
Richardson’s continued pain and disability related to the fracture 7 to Dr. Foster’s
erroneous diagnosis for as long a period—here, more than a month—until her
condition was correctly diagnosed and treated.
Nonetheless, Dr. Foster relies on a recent San Antonio Court of Appeals
opinion to argue that Dr. Drazner’s report is still insufficient in explaining
causation even if it shows that Dr. Foster’s misdiagnosis induced Richardson’s
continued pain and disability. See Jones v. King, 255 S.W.3d 156 (Tex.
App.—San Antonio 2008, pet. denied) (mem. op.). In Jones, King, who
suffered from chronic pain, alleged that Dr. Jones’s allegedly improper
treatment—the placement of a morphine pump—caused her to develop several
health problems, including meningitis. Id. at 158. Dr. Jones, an
anesthesiologist, alleged that the expert report written by Dr. Gregory Powell
did not adequately address the causal connection between breaches of
standards of care and King’s injuries. Id. The San Antonio court explained that
the report contained “little more than a series of repetitious conclusory
statements” such as, “the failure to timely detect the meningitis and treat it for
more than forty-eight hours caused it to become worse and resulted in
7
… Dr. Drazner’s report alleges that Richardson complained of pain when
she saw Dr. Foster in June 2007.
12
numerous additional complications and injuries including decreased vision,
diabetes insipidus, and pain.” Id. at 159. The majority opinion said,
[A] close reading of the relevant portions of the report confirms
Powell’s failure to link any delay in diagnosis to any additional pain
and suffering or exacerbation of the meningitis than what would
have occurred in the face of an earlier diagnosis.
Stated another way, while it may be facially appealing to
infer additional pain and suffering resulted from the alleged delay
in diagnosis, the trial court is not permitted to rely on such
speculation in determining the adequacy of the report. While
Powell clearly states King suffered “extra” or “additional” pain and
suffering due to the 48-hour delay in diagnosis, he fails to provide
any baseline from which the trial court could conclude the delay
caused the results. Powell does not explain what facts led him to
his conclusions. His report does not indicate the normal or
expected course of meningitis once treatment has begun. Does
meningitis become more difficult to treat or take longer to resolve
if treatment is delayed? Does the disease become more virulent
due to lack of treatment? While Powell also states King was
“hospitalized twice,” “lost over thirty days at work,” and “incurred
a substantial amount of medical bills during the hospitalizations,”
he does not attempt to explain how these results would not have
occurred if the diagnosis of meningitis had occurred 48 hours
earlier. . . .
. . . Here, Powell offered no medical explanation about
whether earlier treatment would have been effective in shortening
the duration of the meningitis, precluding additional pain and
suffering, or preventing other alleged injuries and damages.
Id. at 159–60 (citations omitted and italic emphasis added).
However, unlike the expert report at issue in Jones, which, according to
the majority opinion, did not explain how a delay in diagnosis lengthened King’s
13
pain by delaying the resolution of her meningitis, Dr. Drazner’s report does
explain how Dr. Foster’s alleged failure to “determine the true nature of
[Richardson’s] injury” left her ankle fracture untreated and subjected Richardson
to prolonged pain. Thus, we conclude that the facts in Jones are
distinguishable from those involved here.
However, even if the Jones opinion could be read to render a report
inadequate on causation when the report sufficiently links a misdiagnosis to
pain that is prolonged until a correct diagnosis is made and the correct
treatment is given, we disagree with the opinion. Cf. Moore v. Sutherland, 107
S.W.3d 786, 791 (Tex. App.—Texarkana 2003, pet. denied) (holding that an
expert report based on a doctor’s misdiagnosis is sufficient as to causation
when it specifically states what the defendant “should have done and what
happened because he failed to do it”); see also Sullivan v. Methodist Hosps. of
Dallas, 699 S.W.2d 265, 274–75 (Tex. App.—Corpus Christi 1985) (holding
that the failure to diagnose the presence of a sponge in an abdomen sufficiently
caused the plaintiff’s injury when the plaintiff suffered from “additional physical
suffering”), writ ref’d n.r.e., 714 S.W.2d 302 (Tex. 1986). For these reasons,
we hold that, to the extent that Richardson’s claim against Dr. Foster concerns
her prolonged pain because of his alleged misdiagnosis, the trial court did not
abuse its discretion by denying Dr. Foster’s motion to dismiss based on his
14
allegation that Dr. Drazner’s causation opinion is factually unsupported or
inadequately explained. See Palacios, 46 S.W.3d at 875.
However, to the extent that Richardson’s claim against Dr. Foster asserts
that his alleged misdiagnosis caused her to require ankle surgeries and caused
the other alleged harmful conditions related to the surgeries,8 we conclude that
Dr. Drazner’s report provides a deficient explanation of causation. See Farishta,
224 S.W.3d at 453, 455 (indicating that an expert report must provide an
adequate explanation of causation as to each injury claimed by a plaintiff and
affirming the trial court’s dismissal of particular damage theories that the expert
report had not adequately addressed); see also Benson v. Vernon, No.
10-08-00271-CV, 2009 W L 2462657, at *3 (Tex. App.—Waco Aug. 12,
2009, no pet.) (citing Farishta and holding similarly). Dr. Drazner’s report says
that Richardson required “narcotic enalyens” and “usage of a bone growth
stimulator and another surgery to remove painful surgical hardware” and
suffered “loss of hind foot motion and injury to the superficial peroneal nerve,
as well as moderate chronic pain” because her ankle had “failed to heal, moved
8
… Despite Richardson’s statement in her brief that Dr. Foster
misunderstands the nature of her claims, Richardson claimed at trial in her
response to Dr. Foster’s dismissal motion and also claimed at oral argument on
appeal that the delay caused by Dr. Foster’s alleged misdiagnosis contributed
to the need for her two ankle surgeries. Dr. Drazner’s report also asserts such
a conclusion.
15
to non-union, and required further exhaustive care.” But Dr. Drazner’s report
does not identify how Dr. Foster’s alleged misdiagnosis in June 2007, which
caused about one month’s delay in correctly diagnosing the ankle injury after
the correct diagnosis had already been delayed for about six months since the
initial injury in December 2006, contributed to the requirement of such
exhaustive care. In other words, the report does not explain beyond mere
conjecture how the condition of Richardson’s ankle worsened from June 2007
to July so that Dr. Foster’s failure to give a correct diagnosis in June caused
the requirement of further treatment in July that would not have otherwise been
required if Dr. Foster had correctly diagnosed the injury. See Farishta, 224
S.W.3d at 453, 455. Thus, we hold that the trial court abused its discretion
to the extent that it found that Dr. Drazner’s report provided a sufficient
explanation about Dr. Foster’s actions causing Richardson’s ankle treatment.
See Palacios, 46 S.W.3d at 875. We sustain Dr. Foster’s sole issue as to that
limited basis.
The report’s collective referrals to Dr. Foster and Dr. Otero
Next, Dr. Foster argues that Dr. Drazner “failed to explain how each
defendant specifically and individually caused or contributed to Richardson’s
injury” and that the report’s alleged “collective assertions of negligence” are
inadequate because Dr. Drazner “merely prefaces every sentence regarding
16
causation with both doctors[‘] names.” He cites several cases to propose that
expert reports must differentiate the conduct of multiple defendants. See, e.g.,
Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d 913, 917 (Tex.
App.—Texarkana 2006, no pet.) (holding that a report was deficient because
it did not contain “specific information concerning how [one doctor] breached
the standard of care apart from [another doctor’s] conduct” when the plaintiff’s
complaint concerned the doctors’ joint treatment decision while the patient
suffered from bacterial meningitis); Taylor v. Christus Spohn Health Sys. Corp.,
169 S.W.3d 241, 244–46 (Tex. App.—Corpus Christi 2004, no pet.) (holding
that a report was deficient because it did not “present the standards of care
relevant” to each defendant or distinguish among several defendants concerning
how breaches of their standards of care contributed to an alleged failure to
diagnose and treat a heart condition). 9
Here, unlike in Longino and Taylor, the report explained that Dr. Otero’s
treatment of Richardson was independent of and attenuated in time from Dr.
9
… Dr. Foster also relies on the El Paso Court of Appeals opinion in
Murphy v. Mendoza, 234 S.W.3d 23, 29 (Tex. App.—El Paso 2007, no pet.).
That case is inapposite because the report did not even identify the defendants
by name when referring to their allegedly incorrect evaluations of a bladder
biopsy, so it could not have discussed the standards of care related to both
doctors “if the roles and responsibilities differed.” Id.
17
Foster’s diagnosis. Dr. Drazner’s report connects Dr. Foster’s actions to
Richardson’s delay in receiving proper treatment for her ankle fracture by
stating (in a paragraph that is independent from any discussion of Dr. Otero),
Although Dr. Foster noted that Ms. Richardson’s left calf was
smaller than her right calf, and superficial tenderness to palpation,
Dr. Foster did not perform a range of motion [test] on Ms.
Richardson’s left ankle or identify the ligaments he examined. . . .
Dr. Foster arrived at his opined diagnosis, failing to document the
hallmarks of the [complex regional pain syndrome] condition.
The report further states in its standard of care section of “both Dr. Otero and
Dr. Foster” that (1) orthopedic examinations should include a full range of
motion test regarding the knee, ankle, and foot, and that a doctor should detail
the results of the test, and (2) if a doctor cannot objectively diagnose the
source of pain, the doctor should refer the patient for a second opinion.
The report then alleges that both doctors breached the standard of care
through their separate treatment of Richardson’s injury. The report refers to the
doctors collectively, in part, by stating that “neither Dr. Otero nor Dr. Foster
performed a thorough examination” because they both did not complete full
range of motion testing and they therefore failed to diagnose the ankle fracture.
It also refers to the doctors collectively by stating as to causation, “[D]ue to the
physicians’ failure to correctly diagnose Ms. Richardson’s injury, . . . [she] was
subjected to . . . a prolonged period of pain.”
18
However, we cannot agree with Dr. Foster’s assertion that the report was
required to say in a separate sentence within its standard of care section that
Dr. Foster needed to and failed to perform the range of motion test (rather than
alleging that same fact within a sentence that also mentioned Dr. Otero)
because the report had previously independently explained why Dr. Foster
should have performed the test. We also cannot agree that the report needed
to use a separate sentence to explain how Dr. Foster’s conduct delayed the
correct diagnosis of Richardson’s ankle injury and thus prolonged her pain when
that was adequately indicated by the rest of the report. Thus, we conclude
that Dr. Drazner’s report is not deficient merely because it contains some
collective statements regarding actions that both doctors should have taken
while they independently cared for Richardson. See Barber v. Dean, No.
02-07-00353-CV, 2009 WL 3490952, at *10 (Tex. App.—Fort Worth Oct. 29,
2009, no pet. h.) (holding that a report is not deficient for grouping defendants
together when it specifically states that they all owed the same duty of care);
Livingston v. Montgomery, 279 S.W.3d 868, 873 (Tex. App.—Dallas 2009, no
pet.) (explaining that “the fact that [the report] identifies one standard of care
for more than one defendant does not render [the report] deficient”); Sanjar v.
Turner, 252 S.W.3d 460, 466–67 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (holding the same and noting that nothing “forbids applying the same
19
standard of care to more than one physician if . . . they all owed the same duty
to the patient”).
Thus, we hold that the trial court also did not abuse its discretion by
denying Dr. Foster’s motion to dismiss Richardson’s claim on the basis that
portions of Dr. Drazner’s report referred to the doctors’ conduct collectively.
See Palacios, 46 S.W.3d at 875.
Dr. Drazner’s qualifications
In the final part of his sole issue, Dr. Foster contends that Dr. Drazner is
not qualified to submit an expert report on causation. An expert report
authored by a person who is not qualified to testify cannot constitute an
adequate report. Collini, 280 S.W.3d at 462; see Ehrlich v. Miles, 144 S.W.3d
620, 624–26 (Tex. App.—Fort Worth 2004, pet. denied). The proper inquiry
concerning whether a doctor is qualified to testify is not his area of practice but
his familiarity with the issues involved in the claim before the court. Collini,
280 S.W.3d at 464; see Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston
[14th Dist.] 1999, no pet.).
To be qualified to submit a report on the causal relationship between the
breach of a physician’s standard of care and harm, the reporting physician must
be “otherwise qualified to render opinions on such causal relationship under the
Texas Rules of Evidence.” Tex. Civ. Prac. & Rem. Code Ann.
20
§ 74.351(r)(5)(C); see Tex. R. Evid. 702 (explaining that if “specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an
opinion”); Collini, 280 S.W.3d at 465.10
To be so qualified under rule 702, an expert must have knowledge, skill,
experience, training, or education regarding the specific issue before the court
that would qualify the expert to give an opinion on that particular subject.
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Thomas
v. Alford, 230 S.W.3d 853, 857, 860 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (holding that because the doctor who submitted an expert report did
not demonstrate knowledge of cancer treatment, he was not qualified to offer
an opinion that an earlier diagnosis could have produced a better outcome for
10
… The parties discuss sections 74.351(r)(5)(A) and 74.401(a) of the
civil practice and remedies code, which relate to the expert qualifications to
submit an opinion “regarding whether a physician departed from accepted
standards of medical care.” See Tex. Civ. Prac. & Rem. Code Ann. §§
74.351(r)(5)(A), 74.401(a). However, Dr. Foster has not directly challenged
Dr. Drazner’s qualifications in that regard—the heading on his qualification
challenge in his brief is “Drazner is Not Qualified to Provide Adverse Causation
Opinions,” and the analysis in his brief also focuses on causation. Thus, we
will focus on the qualification standards under section 74.351(r)(5)(C), although
we acknowledge that there may be some overlap between those standards and
the standards related to qualifications for duty of care and breach.
21
the plaintiff) (citing Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996));
Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 762–63 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (deciding that a doctor was qualified
to opine about causation because his report demonstrated direct experience
with treating decubitus ulcers, which was the condition at issue). In other
words,
there is no validity, if there ever was, to the notion that every
licensed medical doctor should be automatically qualified to testify
as an expert on every medical question. . . . [T]he proponent of
the testimony has the burden to show that the expert ‘possesses
special knowledge as to the very matter on which he proposes to
give an opinion.’
Ehrlich, 144 S.W.3d at 625 (quoting Broders, 924 S.W.2d at 152–53).
“A medical expert who is not of the same school of medicine, however, is
competent to testify if he has practical knowledge of what is usually and
customarily done by a practitioner under circumstances similar to those
confronting the defendant.” Id.
Dr. Foster argues that Dr. Drazner is not qualified as an expert on
causation in this case because although Dr. Foster is an orthopedic surgeon,
Dr. Drazner “is an internist who specializes in Physical Medicine and
Rehabilitation” and has not demonstrated “that he has had education or
experience in the diagnosis, care, or treatment of an orthopedic surgery
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patient.” Dr. Foster relies on Ehrlich and Collini. In Ehrlich, we held that a
neurologist, although skilled in the treatment of issues related to the nervous
system, was not qualified to submit an expert report on the validity of surgical
procedures used during the plaintiff’s face lift and implants. Id. at 625–26. In
Collini, we concluded that a doctor was not qualified to submit a report about
whether the prolonged prescription of a drug caused the plaintiff’s condition
because the doctor did not show that he had any knowledge, experience,
education, or training on that causal relationship or about the specific drug or
condition involved in the case. Collini, 280 S.W.3d at 465–66.
This case is different from Ehrlich and Collini because Dr. Drazner has
shown experience with the exact issue involved in Richardson’s claim against
Dr. Foster. Dr. Drazner’s report assigns blame to Dr. Foster for failing to follow
orthopedic diagnostic procedures (such as failing to complete a range of motion
test and failing to document hallmarks of the complex regional pain syndrome)
that would have allowed him to correctly diagnose Richardson’s broken ankle
and thus avoid (among other results) the continued pain associated with an
incorrect diagnosis; it does not assess blame on Dr. Foster for processes
involved with an orthopedic surgery.
Rather, our case is more akin to Barber v. Mercer, where we determined
that an anesthesiologist was qualified to give an expert report on a surgeon
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during orthopedic surgery regarding the proper positioning and padding of the
patient. No. 02-08-00079-CV, 2009 WL 3337192, at *8 (Tex. App.—Fort
Worth Oct. 15, 2009, no pet.). Dr. Drazner’s report and curriculum vitae
establish his qualifications to submit a report about orthopedic diagnostic
procedures; they show that he obtained his medical degree in 1986 and that at
the time he submitted his report, he had practiced medicine in Texas for
eighteen years with a specialty in physical medicine and rehabilitation and a
secondary specialty in occupational medicine. He primarily treats patients who
have suffered orthopedic injuries, and he has “treated approximately 20,000
patients with [orthopedic] injuries and performed several hundred thousand
[orthopedic] examinations.” Since 1995, he has practiced in the area of
“Physical Medicine and Rehabilitation, Pain Management.”
Dr. Drazner has served as a featured speaker on several topics, including
one on “Multidisciplinary Approaches to the Management of Complex Regional
Pain Syndrome,” which is the particular condition that Dr. Foster diagnosed
Richardson as having. Dr. Drazner has also lectured on the management of
knee injuries.
Therefore, we hold that the trial court did not abuse its discretion by
denying Dr. Foster’s motion to dismiss on the basis that Dr. Drazner is not
24
qualified to provide an opinion on the causal relationship between Dr. Foster’s
actions and Richardson’s harm. See Palacios, 46 S.W.3d at 875.11
11
… Dr. Foster contends that Dr. Drazner was required to establish that
he is qualified to provide an opinion on the length of time it takes a bone to set
so that he could show that Richardson’s ankle fracture worsened between Dr.
Foster’s diagnosis and the later diagnosis of Richardson’s broken ankle.
Because we have already sustained Dr. Foster’s issue about the expert report’s
adequacy to establish a causal relationship between Dr. Foster’s actions and
Richardson’s ankle treatment, we will not address Dr. Drazner’s qualifications
to provide an opinion on that same issue. See Tex. R. App. P. 47.1.
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Conclusion
Having overruled the majority of Dr. Foster’s sole issue regarding
Richardson’s assertion that his alleged misdiagnosis caused her additional pain,
we affirm the trial court’s order denying his motion to dismiss as to that issue.
Having sustained a portion of Dr. Foster’s sole issue concerning Richardson’s
assertion that his alleged misdiagnosis caused her need for ankle surgeries and
having found Dr. Drazner’s report deficient as to that causal relationship, we
reverse the trial court’s decision regarding the sufficiency of the report in that
regard and remand this case to that court to consider the issue of whether to
grant Richardson a thirty-day extension to cure that deficiency. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(c); Leland, 257 S.W.3d at 207; Collini, 280
S.W.3d at 468.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
CAYCE, C.J. not participating.
DELIVERED: December 31, 2009
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