Angelo L. Otero, M.D. v. Mary Richardson ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-401-CV
ANGELO L. OTERO, M.D. 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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I. INTRODUCTION AND P ROCEDURAL B ACKGROUND
This is the second interlocutory, expert-report appeal filed in this litigation.
Appellee Mary Richardson filed a health care liability claim against Daniel L. Foster,
D.O. and Appellant Angelo L. Otero, M.D. Richardson timely filed and served the
expert report and curriculum vitae of Bryan S. Drazner, M.D. Both Dr. Otero and Dr.
Foster filed motions to dismiss pursuant to chapter 74 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2005).
The trial court sustained some of Otero’s objections to the report relating to knee
surgery performed by Dr. Otero, granted Richardson a thirty-day extension of time
to allow her to cure these defects in Dr. Drazner’s report as to Dr. Otero, and did not
rule on Dr. Otero’s motion to dismiss. The trial court denied Dr. Foster’s motion to
dismiss. Both Dr. Otero and Dr. Foster perfected an appeal.
W e affirmed in part and reversed in part the trial court’s denial of Dr. Foster’s
motion to dismiss. See Foster v. Richardson, 303 S.W .3d 833, 845–46 (Tex.
App.—Fort W orth 2009, no pet.). W e dismissed, on Dr. Otero’s motion, his
attempted appeal from the trial court’s order granting Richardson a thirty-day
extension of time to file an amended report concerning the sustained objections
relating to knee surgery performed by Dr. Otero.
After Dr. Otero’s appeal was dismissed, Richardson did not file an amended
report in the trial court; she decided to proceed against Dr. Otero only on her claims
on which Dr. Otero’s objections had been overruled. Thirty days expired, and Dr.
Otero filed a second motion to dismiss in the trial court. The trial court conducted
a hearing and granted Dr. Otero’s motion to dismiss in part, ruling,
This Court had previously sustained Defendant Angelo L. Otero, M.D.’s
Objections relating to knee surgery performed, including his objections
to qualifications for Dr. Drazner to opine on same in the Report of Byran
S. Drazner, M.D. This Court finds that Plaintiff was given an
opportunity to cure the deficiencies as related to these objections and
failed to do so. Accordingly, Defendant Angelo L. Otero, M.D.’s Second
Motion to Dismiss is GRANTED IN PART as follows all of Plaintiff’s
claims related to the performance of knee surgery are hereby
DISMISSED W ITH PREJUDICE.
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Dr. Otero perfected this appeal, challenging the trial court’s failure to dismiss the
entirety of Richardson’s claims against him. In his sole issue on appeal, Dr. Otero
queries, “Did the trial court abuse its discretion in overruling [Dr.] Otero’s objections
to the report of Bryan Drazner, M.D. regarding the allegation of failure to properly
diagnose and treat a fractured leg, and err in denying in part [Dr.] Otero’s Motion to
Dismiss?”
II. F ACTUAL B ACKGROUND
The following is the factual background as set forth in our prior opinion:
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. 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, 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 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.
Foster, 303 S.W .3d at 836.
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III. S TANDARD OF R EVIEW
W e likewise utilize the same standard of review as that set forth in our prior
opinion.
W e 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 W orth 2009, no
pet.) (op. on remand); Moore v. Gatica, 269 S.W .3d 134, 139 (Tex.
App.—Fort W orth 2008, pet. denied) (op. on remand). W e 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 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.
Foster, 303 S.W .3d at 837.
IV. T HE S TATUTORY R EQUIREMENTS OF E XPERT R EPORTS
W e recite the statutory requirements of expert reports as set forth in our pior
opinion in this litigation.
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
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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); Collini, 280 S.W .3d at 461–62. W hile 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 W orth 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.
Foster, 303 S.W .3d at 837.
V. T HE F ACTS ALLEGED IN D R. D RAZNER’S R EPORT
Richardson did not file an amended report to cure the deficiencies in Dr.
Drazner’s report concerning the knee surgery performed by Dr. Otero; Richardson
does not challenge the trial court’s dismissal of her claims against Dr. Otero based
on or relating to her knee surgery. Thus, the issue before us is whether Dr.
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Drazner’s report is sufficient to satisfy the statutory elements of an expert report
concerning Richardson’s claim that Dr. Otero failed to timely diagnose and treat her
ankle fracture.
The report we review now for adequacy as to Dr. Otero, an orthopedic
surgeon, is the exact same report we previously reviewed for adequacy as to Dr.
Foster, also an orthopedic surgeon. 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. Richardson made it clear to Dr. Drazner “that she [had]
complained to Dr. Otero about pain and swelling in the left lower leg and ankle,
which far exceeded any minor knee discomfort and that her complaint went ignored
and unaddressed.” Dr. Otero failed to diagnose Richardson’s leg fracture and
instead performed knee surgery. The report continues,
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. . . . W ithout a complete [orthopedic] examination, including
full range of motion testing, and the obtainment of appropriate objective
diagnostic tests on Ms. Richardson’s ankle and foot, an accurate
diagnosis was not possible. Dr. Otero apparently assumed Ms.
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Richardson’s injury was to her left knee because she had undergone
left knee surgery approximately five years earlier. Dr. Otero’s
assumption was not supported by his examination nor by objective
diagnostic tests. 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.
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
surgery for open reduction and initial fixation of the lateral mellolus, left
pelvic iliac crest bone graft, 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.[1]
VI. D R. O TERO’S APPELLATE C OMPLAINTS
A. Dr. Drazner’s Report Includes Adequate
Standard of Care and Breach Opinions
Dr. Otero raises several arguments challenging the adequacy of Dr. Drazner’s
report “as to the allegation of failure to properly diagnose and treat a fractured leg.”

1
The portion of the report following the stricken phrase, “had healed correctly,”
was handwritten.
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Dr. Otero claims that “[t]here is no standard of care or alleged breach stated as to
[Dr.] Otero and the remaining allegation of failure to properly diagnose and treat a
fractured leg” and that Dr. Drazner’s report “fails to adequately state a standard of
care applicable to [Dr.] Otero or an alleged breach of such standard by [Dr.] Otero
with regard to the allegation of failure to properly diagnose and treat a fractured leg.”
An expert report’s statements concerning the standard of care and breach
need only identify what care was expected and not given with such specificity that
inferences need not be indulged to discern them. Benish, 281 S.W .3d at 198. A
“fair summary” of the standard of care and how it was breached is all that is required.
Palacios, 46 S.W .3d at 880 (explaining that “a ‘fair summary’ is something less than
a full statement of the applicable standard of care and how it was breached”). Dr.
Drazner’s report, as quoted above, contains a specific section titled, “Standard of
Care Applicable to Dr. Otero,” and another section titled, “Breach of Standard of
Care.” These sections explain that the standard of care required Dr. Otero to
conduct a thorough examination when he examined Richardson “in order to
determine the nature and extent of the injury,” including “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.” The section on breach explains that Dr. Otero
breached the standard of care by not conducting the thorough examination dictated
by the standard of care. These allegations constitute a fair summary of the standard
of care applicable to Dr. Otero and how he breached that standard; the allegations
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are sufficient to identify the care that was expected but not given by Dr. Otero and
to permit the trial court to conclude that the claim has merit. See, e.g., Baylor Coll.
of Med. v. Pokluda, 283 S.W .3d 110, 121–23 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (rejecting argument that expert report failed to adequately set forth standard
of care and breach); Palafox v. Silvey, 247 S.W .3d 310, 318–19 (Tex. App.—El
Paso 2007, no pet.) (same); Patel v. Williams, 237 S.W .3d 901, 905 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (same). The trial court did not abuse its
discretion by determining that Dr. Drazner’s report adequately set forth the standard
of care applicable to Dr. Otero in his examination of Richardson’s injured leg and
adequately set forth how Dr. Otero breached that standard.
B. Dr. Drazner’s Report Not Inadequate for Including Standard of Care,
Breach, and Causation Opinions for Dr. Foster and Dr. Otero
(Both Orthopedic Surgeons) in Same Sentences
Next, Dr. Otero contends that Dr. Drazner’s report is inadequate because it
“fails to address the conduct of [Dr. Otero and Dr. Foster, both of whom are
orthopedic surgeons] individually and thus is conclusory” as to standard of care,
breach, and causation. Dr. Foster made this exact argument in his appeal. See
Foster, 303 S.W .3d at 843 (holding that “Dr. Drazner’s report is not deficient merely
because it contains some collective statements regarding actions that both [Dr.
Foster and Dr. Otero] should have taken while they independently cared for
Richardson”). Dr. Otero argues that our holding above does not apply to him
because, unlike Dr. Drazner’s report concerning Dr. Foster, Dr. Drazner’s report
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concerning him does not contain “any independent explanation as to why [Dr.] Otero
should have performed a range of motion test.” But Dr. Drazner’s report does
explain why Dr. Otero should have performed a range of motion test; he explains
that the standard of care when a physician examines a patient for a leg injury is to
perform a thorough orthopedic examination and to perform full range of motion
testing regarding the injured leg, including the knee, ankle, and foot, and he explains
that Dr. Otero is a physician who examined Richardson for a leg injury but did not
perform full range of motion testing. For this reason, as well as because both Dr.
Otero and Dr. Foster are orthopedic surgeons, and for the reasons set forth in our
prior opinion, we hold that the trial court did not abuse its discretion by failing to find
Dr. Drazner’s report inadequate or conclusory on the statutory elements of standard
of care, breach, and causation simply because the report contains some collective
statements concerning Dr. Foster and Dr. Otero regarding standard of care, breach,
and causation. See id.
C. Dr. Drazner’s Report Includes Adequate Causation Opinions
Next, Dr. Otero contends that Dr. Drazner’s report “fails to explain the basis
of his causation opinions and such opinions are factually unsupported.” Dr. Otero
alleges that Dr. Drazner’s report “never explains how or why Richardson’s injuries
resulted from the alleged negligent acts.” But Dr. Drazner’s report expressly states
under the heading, “Results of Defendants’ Breach of the Standard of Care,” that
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[b]y failing to perform a complete examination of Ms. Richardson’s left
leg which was injured, both Dr. Otero and Dr. Foster failed to diagnose
Ms. Richardson’s left fibula fracture. . . . [D]ue 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 surgery for open reduction and initial fixation of the
lateral mellolus, left pelvic iliac crest bone graft, 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 . . . and chronic pain.
These opinions by Dr. Drazner are amply sufficient to satisfy the statutory causation
element required to be included in expert reports. See, e.g., In re Barker, 110
S.W .3d 486, 489–91 (Tex. App.—Amarillo 2003, orig. proceeding) (holding expert
report adequately addressed causal connection between defendant’s delay in
diagnosis and plaintiff’s damages), mand. denied, 141 S.W .3d 144 (Tex. 2004); see
also Sides v. Guevara, 247 S.W .3d 293, 301–02 (Tex. App.—El Paso 2007, no pet.).
D. Dr. Drazner is Qualified to Offer Opinions in Report
Finally, Dr. Otero claims that Dr. Drazner’s report fails to show that he is
qualified as an expert on the standard of care and causation applicable to
Richardson’s health care liability claim. The determination of a doctor’s
qualifications to provide an expert report must be made on the basis of the contents
of the report and his curriculum vitae. Bowie Mem’l Hosp. v. Wright, 79 S.W .3d 48,
52 (Tex. 2002). W ith respect to a person giving opinion testimony regarding whether
a physician departed from accepted standards of medical care, an expert must (1)
be practicing medicine at the time of the testimony or at the time the claim arose;
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(2) have knowledge of accepted standards of medical care for the diagnosis, care,
or treatment of the condition involved in the claim; and (3) be qualified on the basis
of training or experience to offer an expert opinion regarding the standard of care.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon
2005). A physician is “qualified on the basis of training or experience” if the
physician is board certified or has other substantial training or experience in an area
of medical practice relevant to the claim and is actively practicing medicine in
rendering medical care services relevant to the claim. Id. § 74.401(c).
An expert is qualified to give opinion testimony about the causal relationship
between the injury claimed and the alleged departure from the applicable standard
of care if he is “otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence.” Id. § 74.351(r)(5)(C), § 74.403(a) (Vernon
2005). The Texas Rules of Evidence provide that “[i]f scientific, technical, or other
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 or
otherwise.” Tex. R. Evid. 702; see also Roberts v. Williamson, 111 S.W .3d 113,
121–22 (Tex. 2003) (recognizing that while medical license does not automatically
qualify holder to testify as expert on every medical question, test is not whether
expert practices in a particular field of medicine but rather whether offering party has
established that expert has knowledge, skill, experience, training, or education
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regarding specific issue before court that would qualify expert to give opinion on
particular subject, and holding that based on qualifications and experience,
pediatrician was qualified to opine on cause and effect of neurological injuries).
W e review a trial court’s determination that an expert is qualified under an
abuse of discretion standard. Benish, 281 S.W .3d at 198–99; Mem’l Hermann
Healthcare Sys. v. Burrell, 230 S.W .3d 755, 757 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (citing Broders v. Heise, 924 S.W .2d 148, 151–52 (Tex. 1996)).
Concerning Dr. Drazner’s qualifications, his report states, in part:
I have been a practicing physician in Texas for 18 years. My
practice specialty is Physical Medicine and Rehabilitation with a
secondary speciality in Occupational Medicine. My practice consists of
examining, evaluating, diagnosing and treating injured patients,
primarily those who have suffered ortho[pedic] injuries. Consequently,
I have treated approximately 20,000 patients with ortho[pedic] injuries
and performed several hundred thousand ortho[pedic] examinations,
and I am well familiar with the standard of care that must be followed
by any physician who is examining a patient who has sustained an
injury.
Dr. Drazner’s curriculum vitae indicates that he currently practices medicine in
Dallas, Texas specializing in Physical Medicine and Rehabilitation, and Pain
Management.
Thus, Dr. Drazner’s report and curriculum vitae establish that he was
practicing medicine at the time Richardson was treated by Dr. Otero and at the time
he provided his report; that he possesses knowledge of accepted standards of
medical care for the diagnosis, care, or treatment of a person with a leg injury; and
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that based on his eighteen years of experience, he is qualified to offer an expert
opinion regarding the standard of care applicable to a physician examining a patient
with a leg injury. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(A), .401(a).
Thus, Dr. Drazner’s report and curriculum vitae establish that he met the statutory
requirements to be qualified to offer an opinion on the applicable standard of care
and its breach. See id. §§ 74.351(r)(5)(A), .401(a)(2)–(3). The trial court did not
abuse its discretion by finding Dr. Drazner qualified to do so.
Dr. Drazner’s report and curriculum vitae also establish that he was qualified
to opine on the issue of causation because he is qualified to render such an opinion
under the Texas Rules of Evidence. See id. §§ 74.351(r)(5)(C), .403(a); Tex. R.
Evid. 702. Dr. Drazner is a medical doctor who practices physical medicine and
rehabilitation. He has performed several hundred thousand orthopedic
examinations, and he has treated approximately 20,000 patients with orthopedic
injuries. These credentials and this experience, set forth within the four corners of
Dr. Drazner’s report and curriculum vitae, sufficiently establish that he is qualified to
render an opinion on causation in this case. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702; see, e.g., Mosely v. Mundine, 249
S.W .3d 775, 779–80 (Tex. App.—Dallas 2008, no pet.) (concluding that expert had
the knowledge, skill, experience, training, or education regarding specific emergency
room physician’s scope of practice and holding that expert was therefore qualified
to render an opinion on causation under section 74.351(r)(5)).
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Dr. Otero does not point out any specific defect concerning Dr. Drazner’s
qualifications. Instead, he argues that “[i]t is difficult to assess what [Dr.] Drazner’s
qualifications are with respect to the remaining claim [that is, Richardson’s claim that
Dr. Otero failed to properly diagnose and treat her fractured leg] against [Dr.] Otero
because [Dr.] Drazner does not state a standard of care or breach by [Dr.] Otero on
which [Dr.] Drazner may be judged to be qualified.” W e have already addressed Dr.
Otero’s contention that Dr. Drazner’s report contains no standard of care or breach
opinions as to Dr. Otero. W e do not rehash that issue here. For the reasons set
forth above, the trial court did not abuse its discretion by concluding that Dr. Drazner
was qualified to render opinions on the standard of care, its breach, and on
causation concerning Dr. Otero’s alleged negligence in failing to properly diagnose
and treat Richardson’s leg fracture.
Having addressed the arguments presented by Dr. Otero in connection with
his sole issue presented, we overrule Dr. Otero’s sole issue.
VII. C ONCLUSION
Having overruled Dr. Otero’s sole issue, we affirm the trial court’s order
denying in part Dr. Otero’s second motion to dismiss.
SUE W ALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.
DELIVERED: September 30, 2010
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