Dr. Paul Richter v. Steven K. Downey , 565 S.W.3d 847 ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00740-CV
Dr. Paul Richter, Appellant
v.
Steven K. Downey, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. C2016-1261B, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
OPINION
Dr. Paul Richter, D.O., appeals an order denying his motion to dismiss a health care
liability claim under the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code
§§ 74.001–.507, and overruling his objection to the expert report filed in support of the claim, see
id. § 74.351 (requiring expert report and providing for dismissal where court finds report untimely
or inadequate). Because we conclude that the district court acted within its discretion in overruling
Richter’s objection and denying his motion, we affirm.
BACKGROUND1
On October 27, 2014, Steven Downey felt stomach pain and visited the Emergency
Department (ED) at Christus Santa Rosa Hospital in New Braunfels. Later that afternoon, Richter
1
The expert report at issue provides the background facts, and we accept the factual
statements therein for the limited purpose of this appeal. See Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 53 (Tex. 2002).
examined Downey and observed that his lower-right abdomen was tender to the touch. Richter
discharged Downey without performing any diagnostic testing. He instructed Downey to return if
his symptoms worsened and noted in his file, “appendicitis precautions given. Return to ED for any
worsening of symptoms.”
Four days later, Downey returned to the ED and was diagnosed with acute
appendicitis with perforation and peritonitis. That same day, Downey underwent an operation for
appendicitis which revealed an intra-abdominal abscess and bowel damage requiring removal of a
portion of the bowel. Over the next several months, Downey developed additional abscesses
requiring drainage, underwent two laparotomies, underwent an ileostomy and reversal, developed
a leak in his bowel requiring repair, experienced renal failure, developed an enterocutaneous fistula,
was placed on intravenous feeding three times and a catheter once, and was hospitalized four times.
Downey alleges that Richter was negligent and breached his duty of care by failing
to test for, diagnose, and treat acute appendicitis on October 27, and that the delay in diagnosis
caused Downey’s appendix to perforate, resulting in the complications described above. To comply
with the TMLA’s expert-report requirement, Downey served Richter with an expert report from Dr.
Andrew Butler, M.D. (Original Report). See id. § 74.351(a) (requiring service of expert report to
maintain health care liability claim). Richter objected to the report as inadequate under the TMLA
with respect to standard of care and causation. See id. § 74.351(r)(6) (defining “expert report” as
summarizing standard of care, provider’s departure from that standard, and how departure caused
injury). After a hearing, the district court ruled that the Original Report was inadequate and gave
Downey thirty days to submit an amended report. See id. § 74.351(c) (allowing one 30-day
2
extension if expert report is found deficient). Downey timely served Richter with Butler’s amended
report (Amended Report).
The Amended Report asserts that Richter breached the standard of care by:
1. Failing to obtain a CT scan of the abdomen and pelvis in a patient
presenting with right lower quadrant abdominal pain and tenderness.2
2. Failing to obtain laboratory testing in a patient presenting with lower
right quadrant abdominal pain and tenderness.
3. Failing to recognize that Mr. Downey had acute appendicitis.
4. Failing to appropriately treat Mr. Downey’s acute appendicitis.
5. Failing to consult a surgeon for Mr. Downey’s acute appendicitis.
6. Failing to initiate antibiotics for Mr. Downey’s acute appendicitis.
7. Failing to give Mr. Downey appropriate precautions regarding the
possibility of acute appendicitis on discharge.
The Amended Report continues by noting that Downey’s presentation was “consistent with acute
appendicitis.” Butler bases this opinion on his experience that the presentation of right-lower
quadrant pain and tenderness on physical examination “is typical of the symptoms caused by acute
appendicitis.” Further, the Amended Report cites the American College of Emergency Physicians
Clinical Policy on Appendicitis and the Journal of the American Medical Association in support of
2
The Amended Report further explains that when patients present with right lower quadrant
abdominal pain and tenderness, “the Emergency Department standard of care is to obtain a CT scan
of the abdomen and pelvis to rule out acute appendicitis.” According to the Amended Report, three
sources— Rosen’s Emergency Medicine textbook, Tintanelli’s Emergency Medicine textbook, and
a recent study from the Annals of Internal Medicine—support this approach. The Annals of Internal
Medicine study involved 3000 patients with suspected appendicitis over a nine-year period and
concluded by recommending “routine use of [CT scan] as the standard of care for suspected
appendicitis in adults.”
3
Butler’s opinion that the presence of right lower quadrant abdominal pain “is the most useful clinical
finding for identifying patients at increased likelihood for appendicitis.”
The Amended Report acknowledges that “some cases of early appendicitis will not
be evident on CT scan.” It further states that “where a patient presents with right lower quadrant
abdominal pain and tenderness and a normal CT scan,” the standard of care is to give the patient
careful discharge instructions regarding the possibility of a missed early appendicitis. Downey’s
written discharge instructions note “appendicitis precautions given. Return to ED for any worsening
of symptoms,” but the remainder of the instructions concern musculoskeletal pain. According to Dr.
Butler, “There are no specific instructions telling Mr. Downey to return for persistent symptoms, or
to be evaluated within a specific time course, or telling Mr. Downey what symptoms he should seek
medical evaluation for.” The Amended Report claims that emergency physicians typically
“recommend that a patient be reevaluated within 24 hours, and return within this time if symptoms
persist or worsen or if fevers or vomiting develop.”
With regard to causation, the Amended Report opines
had Dr. Richter performed a CT scan on Steven Downey on [October 27, 2014], the
diagnosis of acute appendicitis would have been made and Mr. Downey would have
undergone an uncomplicated appendectomy, and the complications, procedures,
operations and hospitalizations that Mr. Downey later experienced related to his
perforated appendicitis would have been avoided. In short, it is my opinion that Dr.
Richter’s failure to perform a CT scan on Steven Downey on [October 24, 2014] was
a direct and proximate cause of damages sustained by Mr. Downey as a result of his
perforated appendix.
In support of this causation opinion, the Amended Report notes that “the risk for
perforation in acute appendicitis increases with time” and that “a delay in diagnosis and treatment
of appendicitis is associated with an increased risk of perforation.” It cites a study published in
4
the Annals of Surgery, which “showed that 65% of patients with perforated appendicitis had
experienced symptoms for longer than 48 hours.” It further references the medical website
UptoDate.com, which states that “wound infections and intra-abdominal abscesses occur typically
in patients with perforated appendicitis and are ‘very rare’ in patients with simple appendicitis
undergoing an uncomplicated appendectomy.” Finally, it points to a U.S. Department of Health and
Human Services report indicating that “appendiceal perforation increases the risk of wound
infection, abscess formation, sepsis, wound dehiscence, pneumonia, prolonged ileus, heart failure,
and renal insufficiency.”
Richter objected that the Amended Report was inadequate with respect to causation3
and moved for dismissal under the TMLA. See id. § 74.351(b) (providing for dismissal where expert
report is untimely or inadequate), (l) (providing that expert report is inadequate if it does not
represent a good-faith effort to comply with subsection (r)(6)’s definition of “expert report”). On
October 17, 2017, the district court overruled Richter’s objection to the Amended Report and denied
his motion to dismiss. Richter timely filed a notice of appeal. See id. § 51.014(a)(9) (providing
interlocutory review of district court’s order denying relief sought under § 74.351(b)).4
3
Richter did not object to the Amended Report’s adequacy regarding the standard of care.
4
Richter subsequently filed a “Motion for Reconsideration/Rehearing of [his] Objections to
Plaintiff’s First Amended Expert Report and Motion to Dismiss,” which the district court denied.
Richter filed a notice of interlocutory appeal from that denial, docketed under this cause number.
We do not address the district court’s denial of Richter’s “Motion for Reconsideration/Rehearing”
because we conclude that the court acted within its discretion in denying the underlying motion to
dismiss. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is
as brief as practicable but that addresses every issue raised and necessary to final disposition of the
appeal.”). Moreover, we find no support for an independent right to an interlocutory appeal of such
an order. See Central Tex. Spine Inst., LLP v. Brinkley, 344 S.W.3d 537, 542 (Tex. App.—Austin
2011, pet. denied) (concluding that order denying motion to reconsider denial of motion to dismiss
5
LEGAL STANDARD
The TMLA requires “a claimant to serve an expert report early in the proceedings on
each party against whom a health care liability claim is asserted.” Baty v. Futrell, 543 S.W.3d 689,
692 (Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code § 74.351(a)). “[T]he 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.” Abshire v. Christus Health Se. Tex., No. 17-0386,
2018 WL 6005220, at *3 (Tex. Nov. 16, 2018) (per curiam) (citing American Transitional Care
Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001) (noting that “eliciting an expert’s opinions
early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsuits”)). The
statute provides for dismissal of claims on a health care provider’s motion if the required expert
report is not timely served. See Tex. Civ. Prac. & Rem. Code § 74.351(b). Importantly, “an expert
report has not been served within the period specified by Subsection (a) [when] elements of the
report are found deficient.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453,
459 (Tex. 2017) (quoting Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (alteration in
Zamarripa)). In other words, both untimely expert reports and timely but deficient expert reports
provide a basis for dismissal of health care liability claims. See, e.g., Lewis, 253 S.W.3d at 207–08
(noting that TMLA “defines a timely but deficient report as one that ‘has not been served’”) (quoting
Tex. Civ. Prac. & Rem. Code § 74.351(c)).
When a litigant objects under the TMLA, the district court “shall grant a motion
challenging the adequacy of an expert report only if it appears to the court, after hearing, that the
was not appealable under Tex. Civ. Prac. & Rem. Code § 51.014(a)(9)).
6
report does not represent an objective good faith effort to comply with the [TMLA’s] definition of
an expert report.” Tex. Civ. Prac. & Rem. Code § 74.351(l). Under that definition:
“Expert report” means 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 by the physician or health care provider
failed to meet the standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.
Id. § 74.351(r)(6).
The Supreme Court of Texas has held that an expert report represents a good-faith
effort to comply with this definition if it satisfies the two-part Palacios test, which requires
“(1) informing the defendant of the specific conduct called into question and (2) providing a basis
for the trial court to conclude the claims have merit.” Baty, 543 S.W.3d at 693–94 (citing Palacios,
46 S.W.3d at 877). It has also described “a ‘good faith effort’ in this context” as “a report that does
not contain a material deficiency. Therefore, an expert report that includes all the required
elements[,] and that explains their connection to the defendant’s conduct in a non-conclusory
fashion[,] is a good faith effort.” Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510,
513 (Tex. 2017) (per curiam) (alterations original) (quoting Samlowski v. Wooten, 332 S.W.3d 404,
409–10 (Tex. 2011)).
In assessing adequacy, courts are limited to the four corners of the report. E.g.,
Palacios, 46 S.W.3d at 878 (“Because the statute focuses on what the report discusses, the only
information relevant to the inquiry is within the four corners of the document.”). Nevertheless, form
does not trump substance: “[C]ourts must view the report in its entirety, rather than isolating specific
portions or sections, to determine whether it includes” the required information. Baty, 543 S.W.3d
7
at 694 (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015); Austin Heart,
P.A. v. Webb, 228 S.W.3d 276, 282 (Tex. App.—Austin 2007, no pet.) (“The form of the report and
the location of the information in the report are not dispositive.”)). The four-corners requirement
nevertheless “precludes a court from filling gaps in a report by drawing inferences or guessing as to
what the expert likely meant or intended.” Austin Heart, 228 S.W.3d at 279.
A report is adequate with respect to causation if it explains, “based on facts set out
in the report, how and why a health care provider’s breach of the standard of care caused the injury.”
Zamarripa, 526 S.W.3d at 459–60 (citation and punctuation marks omitted). “A bare expert opinion
that the breach caused the injury will not suffice.” Id. at 460. “‘[R]ather, the expert must explain
the basis of his statements to link his conclusions to the facts.’” Id. (quoting Earle v. Ratliff,
998 S.W.2d 882, 890 (Tex. 1999)). “In showing how and why a breach of the standard of care
caused injury, the expert report must be a good-faith effort to explain, factually, how proximate
cause is going to be proven.” Id. Proximate cause has two elements: foreseeability and cause in fact.
Id. (citing Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam)).
We review denial of a motion to dismiss under Section 74.351 for abuse of discretion.
See, e.g., TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013). “Under that standard,
appellate courts defer to the trial court’s factual determinations if they are supported by evidence,
but review its legal determinations de novo.” Van Ness, 461 S.W.3d at 142. “In the absence of
findings of fact or conclusions of law, a trial court’s judgment will be upheld on any theory
supported by the record, and any necessary findings of fact will be implied.” Rosemond v. Al-Lahiq,
331 S.W.3d 764, 766 (Tex. 2011).
8
DISCUSSION
Richter argues that the Amended Report is inadequate with respect to causation
because it fails to address cause in fact and foreseeability. Downey responds that the report, viewed
in its entirety, adequately addresses causation by identifying facts in Downey’s medical record and
medical studies which support the conclusion that Richter’s failure to perform a CT scan on October
27, 2014, “was a direct and proximate cause of damages sustained by Mr. Downey as a result of his
perforated appendix.” Downey points to the report’s statements that Downey exhibited appendicitis
symptoms on his October 27 ED visit, that the standard of care for those symptoms is to perform a
CT scan, and that Richter discharged Downey without performing a CT scan. Downey also
highlights the report’s recitations that a delay in diagnosis increases the risk of appendiceal
perforation; that most patients with perforated appendicitis experience symptoms for longer than 48
hours; that infections and abscesses are very rare in patients with uncomplicated appendicitis; and
that perforation in appendicitis increases the risk of infection, abscesses, prolonged ileus, and renal
insufficiency—most of which Downey suffered. In reply, Richter contends that the report does not
establish proximate cause because it fails to describe what a CT scan conducted on October 27
would have shown and argues that the report does not address causation for any alleged breach of
the standard of care other than the failure to perform a CT scan.
The first prong of Palacios requires us to determine whether the Amended Report
represents a good-faith effort to inform Richter “of the specific conduct called into question.” Baty,
543 S.W.3d at 693 (citation omitted). We “view the report in its entirety, rather than isolating
specific portions or sections, to determine whether it includes” the required information. Id. at 694.
9
The Amended Report specifies that “[i]n patients presenting with right lower quadrant abdominal
pain and tenderness, the Emergency Department standard of care is to obtain a CT scan of the
abdomen and pelvis to rule out acute appendicitis.” It then cites medical literature to support this
assertion and concludes, “It is my opinion that Dr. Richter violated the standard of care by failing
to perform a CT scan on Steven Downey on [October 27, 2014].”
The Amended Report alludes to other breaches but does not opine that any of
Richter’s conduct other than the failure to perform a CT scan violated the standard of care with
respect to Downey. It lists additional alleged breaches, but never mentions them in the remainder
of the report, save one: “Failing to give Mr. Downey appropriate precautions regarding the
possibility of acute appendicitis on discharge.” The report states that “where a patient presents with
right lower quadrant abdominal pain and tenderness and a normal CT scan, most emergency
physicians . . . will recommend that a patient be reevaluated within 24 hours, and return within this
time if symptoms persist or worsen of if fevers or vomiting develop.” Crucially, however, the report
does not specify that this is the standard of care. And even if it did, it is untethered to the facts: since
Richter did not order a CT scan, he did not confront a situation where “a patient presents with right
lower quadrant abdominal pain and tenderness and a normal CT scan.” (Emphasis added.) Thus,
the report satisfies the first element of Palacios, but only insofar as it states that failure to perform
a CT scan on October 27, 2014 is the breach called into question. “A report that satisfies [the
TMLA’s required elements], even if as to one theory only, entitles the claimant to proceed with a suit
against the physician or health care provider.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630
(Tex. 2013). Accordingly, we proceed to the second prong of the Palacios test.
10
In assessing the second prong—whether the Amended Report provides a basis to
conclude that Downey’s claims have merit—we consider whether the report explains how
foreseeability and cause in fact will be proven. See Zamarripa, 526 S.W.3d at 459–60. “The report
need not use the words ‘proximate cause,’ ‘foreseeability,’ or ‘cause in fact’” to be adequate; indeed,
“merely incanting words does not suffice.” Id. at 460 (citing Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 53 (Tex. 2002); Earle, 998 S.W.2d at 890). The report must, however, provide a
factual explanation of how the expert intends to prove that the breach proximately caused the injury.
Id. In evaluating the Amended Report, we are mindful of the Texas Supreme Court’s most recent
decision involving the adequacy of a TMLA-required expert report, Abshire, 2018 WL 6005220.
There, the Court emphasized that our inquiry is limited to “whether the expert has explained how
the negligent conduct caused the injury,” and that “[t]he ultimate evidentiary value of the [expert]
opinions [] is a matter to be determined at summary judgment and beyond.” Id. at *6.
A. Foreseeability
“A physician’s or health care provider’s breach is a foreseeable cause of the plaintiff’s
injury if a physician or health care provider of ordinary intelligence would have anticipated the
danger caused by the negligent act or omission.” Curnel v. Houston Methodist Hosp.-Willowbrook,
No. 01-17-00088-CV, 2018 WL 3883402, at *5 (Tex. App.—Houston [1st Dist.] Aug. 16, 2018, no
pet.) (mem. op.) (citing Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006,
pet. denied)). The most recent Texas Supreme Court decision addressing foreseeability under the
TMLA, Miller v. JSC Lake Highlands Operations, involved a patient who aspirated on a dislodged
dental bridge. 536 S.W.3d at 512. The expert report represented a good-faith effort to show
11
foreseeability, as it “ma[de] clear that failing to identify the lodged dental bridge and alert
appropriate personnel could result in harm.” Id. at 515.5
Richter argues that the Amended Report does not address foreseeability. We
disagree. An expert “report need not use the words ‘proximate cause,’ ‘foreseeability,’ or ‘cause in
fact’” and its “adequacy does not depend on whether the expert uses any particular ‘magical words.’”
Zamarripa, 526 S.W.3d at 460 (citing Bowie, 79 S.W.3d at 53). The Amended Report states plainly
that on his October 27 ED visit “Downey’s presentation was consistent with acute appendicitis” and
that “[i]n patients presenting with right lower quadrant abdominal pain and tenderness, the
Emergency Department standard of care is to obtain a CT scan of the abdomen and pelvis to rule out
acute appendicitis.” In fact, the report states that “right lower quadrant abdominal pain is the most
useful clinical finding for identifying patients at increased likelihood for appendicitis.” (Emphasis
added.) It further asserts that “The risk for perforation in acute appendicitis increases with time; a
delay in diagnosis and treatment of appendicitis is associated with an increased risk of perforation.”
And the report identifies medical literature correlating perforated appendicitis with increased risk
of wound infection, abscess formation, prolonged ileus, and renal insufficiency.
Citing this literature in support, the Amended Report explains that a delay in
diagnosis and treatment of appendicitis is associated with an increased risk of perforation; that “65%
of patients with perforated appendicitis had experienced symptoms for longer than 48 hours”; that
“wound infections and intra-abdominal abscesses occur typically in patients with perforated
5
The report was adequate as to cause in fact because it explained that such a delay caused
a series of pulmonary issues that caused the patient’s aspiration and death. See Miller v. JSC Lake
Highlands Operations, LP, 536 S.W.3d 510, 517 (Tex. 2017) (per curiam).
12
appendicitis and are ‘very rare’ in patients with simple appendicitis undergoing an uncomplicated
appendectomy”; and that “appendiceal perforation increases the risk of wound infection, abscess
formation, sepsis, wound dehiscence, pneumonia, prolonged ileus, heart failure, and renal
insufficiency.” Based upon the foregoing, the district court reasonably could have concluded that
the report represents a good-faith effort to demonstrate that an ED physician of ordinary intelligence
would have anticipated that there was danger associated with failing to perform a CT scan on a
patient with Downey’s symptoms.
B. Cause in fact
“For a negligent act or omission to have been a cause-in-fact of” injury, “the act or
omission must have been a substantial factor in bringing about the harm, and absent the act or
omission—i.e., but for the act or omission—the harm would not have occurred.” Zamarripa,
526 S.W.3d at 460 (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per
curiam)). Cause in fact—along with foreseeability—“is the causal relationship between breach and
injury that an expert report must explain to satisfy the Act.” Id.
Three recent Texas Supreme Court cases considering motions to dismiss under the
TMLA inform our analysis. In Van Ness, the Court considered the adequacy of an expert report with
conflicting statements about pertussis (colloquially, whooping cough) after two-month-old Nicholas
Van Ness died from the disease. See 461 S.W.3d at 142–43. The expert report stated that “the
applicable standard of care” for a patient with Nicholas’s symptoms was to “perform laboratory tests,
administer antibiotics prophylactically while the tests are pending and/or to admit the infant to a
medical facility,” but that the physician had not done so. Id. at 142. The report opined that, had the
13
physician “performed any of these tests, it would have shown [pertussis] at a treatable stage and but
for the failure to treat Nicholas Van Ness as outlined above he would have had a 51% or more
chance of survival.” Id. The Court considered the healthcare provider’s objection that elsewhere
in the report the expert indicated “treatment [for pertussis] is of little benefit to the person infected,”
but “antibiotics may shorten the duration of infectiousness and are thus recommended.” Id. at
143–44. Thus, the provider argued, the report did not establish that failure to provide antibiotics
caused Nicholas’s death. The Court rejected this argument because considering the entire
report—including potentially conflicting statements—“the trial court did not abuse its discretion by
determining that the report was not conclusory, but was a good faith effort to comply with the [Act]’s
requirements.” Id. at 144.
Two years later, in Zamarripa, the Court made clear that a report must speak to both
foreseeability and cause in fact to adequately address causation. 526 S.W.3d at 460 (abrogating
lower court holdings that expert reports need not address proximate cause to satisfy TMLA’s
causation requirement). In Zamarripa, Yolanda Iris Flores died from complications of childbirth
while she was being transferred, during labor, from Valley Regional to another hospital on order of
Dr. Patrick Ellis. Id. at 456–57. Valley Regional challenged the adequacy of an expert report
opining that by “‘permitting and facilitating the transfer,’ Valley Regional caused Flores to be in an
ambulance when she suffered a placental abruption and cardiac arrest, leading to her death.” Id. at
461. The Court found this insufficient to show that Valley Regional proximately caused Flores’s
death because it does not “explain[] how Valley Regional had either the right or the means to
14
persuade Dr. Ellis not to order the transfer or to stop it when he did.” Id. It therefore failed to show
proximate cause.
Most recently, in Abshire, the Supreme Court cautioned that “the court’s role” in
considering a motion to dismiss under the TMLA “is to determine whether the expert has explained
how the negligent conduct caused the injury,” and that “[w]hether this explanation is believable
should be litigated at a later stage of the proceedings.” Abshire, 2018 WL 6005220, at *6. Abshire
considered an expert report’s adequacy to establish that a hospital’s nursing staff caused paraplegia
and incontinence when, over six hospital visits, the spinal fracture that led Abshire to develop those
injuries was not diagnosed. On two of her six visits, nursing staff failed to note on Abshire’s chart
that she suffered from brittle bone disease (OI), which rendered her more vulnerable to fractures and
altered the standard of care. Id. at *1–2. The expert report stated that “had [Christus] followed the
Standard of Care for patients with OI, Ms. Abshire in medical probability would not have developed
paraplegia and bowel and bladder incontinence.” Id. at *2 (alteration original). The district court
denied the hospital’s motion to dismiss under the TMLA. Id. The court of appeals reversed, holding
that the report “did not show how the nurses’ failure to document Abshire’s OI caused her
paraplegia.” Id. at *3. The Supreme Court disagreed, concluding that the “report draws a line
directly from the nurses’ failure to properly document Abshire’s OI and back pain, to a delay in
diagnosis and proper treatment (imaging of her back and spinal fusion), to the ultimate injury
(paraplegia).” Id. at *5. It emphasized that “with respect to causation, the court’s role is to
determine 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.” Id. at *6.
15
The district court reasonably could have concluded that the Amended Report
represents a good-faith effort to “explain, factually, how proximate cause is going to be proven.”
See Zamarripa, 526 S.W.3d at 460. It explains that Downey exhibited textbook appendicitis
symptoms on October 27, that the standard of care called for a CT scan, and that Richter discharged
Downey without performing a CT scan. It offers the opinion, within a reasonable degree of medical
certainty, that “had Dr. Richter performed a CT scan [] on [October 27], the diagnosis of acute
appendicitis would have been made and Mr. Downey would have undergone an uncomplicated
appendectomy.” It then connects delayed diagnosis and treatment of acute appendicitis to
appendiceal perforation, and explains that injuries Downey suffered are more likely to occur in
patients with perforated appendicitis (as opposed to those with uncomplicated appendicitis).
Our sister courts have reached similar results in cases seeking recovery for
complications associated with an alleged missed diagnosis of appendicitis. For example, in United
Regional Health Care System v. Hardy, the Second Court of Appeals considered a patient who
presented in the emergency room with extreme pain in the lower right quadrant of his abdomen.
No. 02-11-00395-CV, 2012 WL 1624153, at *1 (Tex. App.—Fort Worth May 10, 2012, no pet.)
(mem. op.). The treating physician ordered a plain (non-contrast) X-ray of Hardy’s abdomen,
diagnosed him with a UTI, and discharged him home. Id. Six days later, Hardy was diagnosed with
a ruptured appendix that had spread through his abdominal cavity and had eroded part of his colon,
requiring removal. Id. The expert report stated that, based on the patient Hardy’s “textbook”
symptoms of appendicitis during his initial ED visit, “Hardy would have been or should have been
diagnosed with appendicitis and an appendectomy would have been or should have been ordered.
16
Because this was not done, Hardy’s appendicitis was not diagnosed and was allowed to fester and
develop into an abscess, resulting in Hardy’s injuries.” Id. at *3. The court of appeals held that the
report “represents a good-faith effort to state the causal relationship between the alleged breaches
of the standard of care and Hardy’s injuries and is therefore sufficient as to causation.” Id. (citation
omitted).
The Ninth Court of Appeals reached a similar result in CHCA Mainland, L.P. v.
Wheeler, where hospital staff failed to appropriately triage a patient with appendicitis symptoms to
ensure that she was seen by a physician. No. 09-07-00634 CV, 2008 WL 960798, at *5 (Tex.
App.—Beaumont Apr. 10, 2008, no pet.) (mem. op.). The expert report concluded that the patient
should have been triaged as urgent or emergent based on her symptoms, and that because the hospital
staff failed to do so, the patient’s appendix ruptured before she was seen by a physician. Id. at *1–2.
The court of appeals concluded that the expert report provided a basis to conclude the claims had
merit where it stated that—if not for the hospital’s breach of the standard of care by failing to have
the patient’s appendicitis symptoms evaluated by qualified medical personnel—the patient “would
have been spared the generalized intraperitoneal sepsis that necessitated more extensive surgery and
an extended hospitalization.” Id. at *5.
Particularly in light of the Abshire Court’s admonition that we avoid addressing the
believability of expert reports at this stage, we find these other appendicitis cases persuasive. In
Abshire, as here, a plaintiff alleges that a missed diagnosis delayed treatment, resulting in injuries
that were more serious than they would have been had the standard of care been followed. And in
reviewing a causation challenge to the expert report in that case, the Court held that it is not proper
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for a court at this stage in litigation to assess whether the causation analysis is “believable” in the
sense that it is supported by a robust and unimpeachable evidentiary record. Instead, “[t]he ultimate
evidentiary value of the [expert] opinions [] is a matter to be determined at summary judgment and
beyond.” Abshire, 2018 WL 6005220, at *6; see also, e.g., Zamarripa, 526 S.W.3d at 460 (“While
the plaintiff is not required to prove her claim with the expert report, the report must show that a
qualified expert is of the opinion she can.”); Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)
(explaining that expert report need not “marshal all the plaintiff’s proof”).
We are not convinced otherwise by Richter’s argument that the report’s
acknowledgment that “[s]ome cases of early appendicitis will not be evident on CT scan” renders
it insufficient on causation. The Texas Supreme Court rejected a similar argument in Van Ness,
where it concluded that an expert report with potentially inconsistent statements is not necessarily
fatal to a plaintiff’s TMLA claim. Rather, “the trial court ha[s] discretion—indeed it [is] incumbent
on the trial court—to review the report, sort out its contents, resolve any inconsistencies in it, and
decide whether the report demonstrated a good faith effort to show that the [] claims had merit.”
Van Ness, 461 S.W.3d at 144. Similarly here, the district court had discretion to resolve any
inconsistencies in the Amended Report in assessing its adequacy. The report’s indications that
Downey had begun experiencing symptoms that morning and that most patients experience
symptoms for more than 48 hours before their appendix perforates provides a basis to conclude that
the failure to perform a CT scan was a cause in fact of his later injuries.
Finally, both parties cite our sister court’s decision in Adeyemi v. Guerrero, which
underscores the result we reach here. 329 S.W.3d 241, 246 (Tex. App.—Dallas 2010, no pet.). In
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Adeyemi, Guerrero struck her head on a bathroom floor while in active labor. Over the next few
days, she exhibited unexplained vomiting and repeatedly complained of headaches. On her third day
in the hospital, Guerrero suffered a seizure and was diagnosed with a significant hematoma requiring
brain surgery. Guerrero alleged that Adeyemi was negligent in failing to order a CT scan to
investigate the fall and headaches. Adeyemi challenged causation, arguing that Guerrero’s expert
report did not show “how the performance of a CT scan or neurological consultation would have
prevented Guerrero’s injuries.” Id. The Dallas Court of Appeals rejected this argument, concluding
that “the report clearly states that, based on reasonable medical probability, a CT scan would have
detected Guerrero’s initial hemorrhage and, if identified early, such hematomas are easily
remediable.” Id. Similarly here, Dr. Butler offers his opinion that, had a CT scan been performed
on October 27, “the diagnosis of acute appendicitis would have been made and Mr. Downey would
have undergone an uncomplicated appendectomy, and the complications, procedures, operations and
hospitalizations that Mr. Downey later experienced related to his perforated appendicitis would have
been avoided.” It then cites a study, a medical website, and a report from a federal agency to support
this conclusion.
In summary, the Amended Report “links conclusions to specific facts,” tracing the
decision to discharge Downey without performing diagnostic testing to the ensuing delay that
occasioned Downey’s injuries. See Abshire, 2018 WL 6005220, at *4 (explaining that expert report
must “link conclusions to specific facts” to satisfy causation requirement). Putting aside, as we
must, whether Downey will be able to prove causation, a district court could have reasonably
concluded that his claims could have merit based on the facts set out in the Amended Report. See,
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e.g., Palacios, 46 S.W.3d at 879 (explaining that “to avoid dismissal, a plaintiff need not present
evidence in the report as if it were actually litigating the merits . . . 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.”). Accordingly, we overrule Richter’s sole issue.
CONCLUSION
Having overruled the sole issue on appeal, we affirm the district court’s order.
________________________________________
Michael Toth, Justice
Before Justices Puryear, Bourland, and Toth
Affirmed
Filed: December 7, 2018
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