Harold David Wills, D.O. v. Ana Mendoza ( 2022 )

Opinion issued November 10, 2022.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00003-CV
———————————
GABRIEL AREVALO, M.D., HAN PHAM HULEN, M.D. P.A. D/B/A
WOUND INTEGRITY, HOLLI DEZAUN WALLER, D.O., AND
HAROLD DAVID WILLS, D.O., Appellants
V.
ANA MENDOZA, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2021-27439
MEMORANDUM OPINION
Appellant Dr. Harold Wills brings this interlocutory appeal challenging the
trial court’s denial of his motion to dismiss the healthcare liability claims filed
against him by appellee Ana Mendoza.1 Dr. Wills argues the trial court abused its
discretion by denying his motion to dismiss because Mendoza’s expert reports do
not sufficiently address the elements of standard of care, breach, and causation. We
affirm the trial court’s orders denying Dr. Wills’ motion to dismiss.
Background
The reports prepared by Mendoza’s expert, Dr. John Cascone (“Dr.
Cascone”), provide the background facts in this appeal. The medical records are not
before us, and we accept the factual statements in the reports for the limited purpose
of this appeal.2
1
Appellee also filed health care liability claims against other physicians, nurse
practitioners, and facilities involved in her post-operation treatment including
Gabriel Arevalo, M.D. (“Dr. Arevalo”), Han Pham Hulen, M.D. P.A. d/b/a Wound
Integrity (“Dr. Hulen”), Holli Dezaun Waller, D.O. (“Dr. Waller”), North Houston-
TRMC, LLC d/b/a HCA Houston Healthcare Tomball, Bao Van, M.D. (“Dr. Van”),
Lisa Jo Duenes, APRN, CNP, Maria Ella Bacareza Valbuena, APRN, CNP, IPC
The Hospitalist Management Company, LLC, IPC Healthcare, Inc., IPC Healthcare
Services of Texas, PLLC, IPC PAC Healthcare Services of Texas, PLLC, and THW
Emergency Management of Houston, LLC.
Dr. Wills, Dr. Arevalo, Dr. Hulen, and Dr. Waller filed notices of interlocutory
appeal from the trial court’s denial of their respective motions to dismiss Appellee’s
healthcare liability claims against them. Dr. Arevalo, Dr. Hulen, and Dr. Waller
filed a motion to dismiss their appeals, which we granted on May 5, 2022. As a
result, Dr. Wills is the only remaining appellant.
2
See Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.]
2012, pet. denied) (citing Shenoy v. Jean, No. 01–10–01116–CV, 2011 WL
6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem.
op.)).
On May 23, 2019, Mendoza, a 62-year-old woman, underwent an elective
hernia repair surgery. Mendoza was transferred to the rehabilitation unit for
strengthening and recovery on May 31, 2019. Dr. Bao Van, M.D. (“Dr. Van”) was
the admitting physician.
On June 6, 2019, the general surgery nurse practitioner, Stacie L. Bohn, NP
(“Bohn”), documented that Mendoza’s abdominal incision was healing without
erythema or drainage. Dr. Gabriel Arevalo, M.D. (“Dr. Arevalo”), a general
surgeon, cosigned Bohn’s progress note. On June 7, 2019, Mendoza’s medical
records reflect that she was evaluated by Dr. Van and she was documented as having
a temperature of 100.0°F.
On June 8, 2019, at 9:05 a.m., a nursing note in Mendoza’s medical records
reflects that Mendoza’s abdominal surgical site “had approximated wound edges and
that there was ‘redness around incision site, small area of black skin, near tip of site’”
and “moderate yellow exudate with an odor.” This description is “consistent with a
surgical site infection with foul smelling purulence and skin necrosis.” Five hours
later, Mendoza was evaluated by nurse practitioner Maria Bacareza Valbuena, N.P.
(“Valbuena”). Valbuena documented that Mendoza had “low-grade temp [sic]
elevations in the evening” and that nurses had reported erythema and purulent
drainage on the abdominal surgical incision site. Valbuena further noted that
Mendoza “complained of fevers and that [a] greenish gray strike through was found
on the incision dressing.” The plan was to “monitor the incision for signs of
infection and obtain a wound [Gram-stain (“GMS”)] and culture.” Valbuena’s
progress note, which was cosigned by Dr. Wills, reflects that the “assessment and
plan were developed in collaboration with” Dr. Wills.
On June 9, 2019, the results of the wound GMS came back showing “white
blood cells (WBC) and Gram-negative rods.” According to Dr. Cascone, these
findings “are consistent with purulence due to a Gram-negative infection.” “Gram-
negative rods are typically resistant to multiple antibiotics” and require “more than
one antibiotic to cover potential resistance and to cover anaerobic organisms.”
Nursing notes from later that evening documented that “the abdominal wound edges
were not approximated and there was green wound exudate.” Mendoza was not
evaluated by a physician or nurse practitioner on June 9, 2019.
Mendoza was evaluated by Dr. Van and Dr. Arevalo on June 10, 2019. Dr.
Arevalo documented that Mendoza’s abdominal “incision looks [sic] with signs of
necrosis3 at the center of the wound but not at the confluence of the transverse and
longitudinal incisions, however at this site there is secretions with exudate.” Dr.
Arevalo’s plan was to “consult wound care and reassess the need for oral
antibiotics.” Dr. Van documented that Mendoza “was having abdominal pain
keeping her up at night” and nursing notes from that day document that Mendoza’s
3
Necrosis is another word for “tissue death.”
“abdominal incision had a moderate amount of purulent drainage.” That evening, a
nurse noted “dark red drainage in the JP drains” and notified Dr. Van that the wound
GMS showed WBC and Gram-negative rods.
On June 11, 2019, family practice nurse practitioner Lisa Duenes, N.P.
(“Duenes”) evaluated Mendoza and documented that Mendoza complained of
weakness and had “had green drainage reported from abdominal wound on
Saturday.” After noting that Mendoza’s abdominal wound had a “copious amount
of wound drainage,” Duenes ordered an infectious disease consult and started
Mendoza on an oral dose of the antibiotic Levofloxacin. Dr. Wills cosigned Duenes’
progress note.
Mendoza was also evaluated by wound care physician Dr. Holli Waller, D.O.
(“Dr. Waller”) on June 11, 2019. Dr. Waller noted that Mendoza had “begun to run
fevers over the last 3 days” and that the nurse reported a temperature of 101.7°F.
Dr. Waller’s examination of Mendoza showed “the inferior portion of the wound
bandage had strikethrough drainage; the vertical incision line had eschar present
under the staples measuring 7.5 cm length x 2.9 cm width; the T portion of the
incision had fat exposure measuring 2.6 cm length x 2.3 cm width x 0.2 cm depth;
there was no healthy granulation tissue visible; and there was slough present.” The
tissue surrounding Mendoza’s abdominal wound had “erythema and moderate
drainage.” Dr. Waller acknowledged that Levofloxacin had been started and an
infectious disease consult had been ordered.
Mendoza was examined by infectious disease physician Dr. Brijesh
Arvindkumar Raval, M.D. (“Dr. Raval”) later that evening. Dr. Raval noted that
Mendoza “had fever and possible sepsis due to an abdominal wound infection” and
the “wound culture results that showed growth of P. aeruginosa and K.
pneumoniae.” Dr. Raval ordered two sets of blood cultures, continued Levofloxacin,
and added intravenous Meropenem, which according to Dr. Cascone, provided
“additional Gram-negative coverage for potentially resistant organisms and
coverage of anaerobic organisms.”
On June 12, 2019, Dr. Arevalo evaluated Mendoza and he documented that
her abdominal incision had “signs of necrosis” at the center of the wound and
purulent exudate secretions. Dr. Arevalo planned to take Mendoza to the operating
room for “abdominal wall debridement of the subcutaneous tissue.” Dr. Waller, who
evaluated Mendoza in the preoperative holding room, noted that Mendoza
“continued to run [a] fever all night and is not feeling quite well.” She also noted
that Mendoza’s wound “remains with 100% covered in eschar,” which is “black
necrotic tissue” and there was “periwound erythema.” Dr. Waller’s examination of
the inferior abdominal wound revealed “contraction of the wound but with persistent
boggy tissue,” no healthy granulation tissue, and moderate to heavy seropurulent
drainage.
Dr. Arevalo performed Mendoza’s debridement surgery four hours later.
According to Dr. Cascone, the “procedure included excisional debridement of
necrotic tissue involving the skin, subcutaneous tissue, and debridement of the deep
subcutaneous tissue abscess.” The abdominal wound contained a “significant
amount of dark fluid” and “both necrotic and liquefied fat.” “Approximately 5 cm
x 2 cm x 5 cm depth of necrotic tissue was removed.” The 10 cm deep abscess “had
septations and was filled with necrotic tissue.” Six days after her surgery, Dr. Raval
opined that Mendoza “would need four weeks or more of intravenous antibiotics,
depending on the clinical progress of the abdominal wound.”
In February 2020, Mendoza was admitted to another hospital for abdominal
surgery by plastic surgeon Dr. Anthony Echo, M.D. (“Dr. Echo”). Dr. Echo noted
that Mendoza had undergone “numerous adhesion takedowns, debridements, and
revisions following her initial surgery [on May 23, 2019].” Mendoza, who was
taking oral Amoxicillin, had completed 6 to 8 weeks of intravenous antibiotics,
received home health care for wound care, including a wound vac with dressing
change 2 to 3 times per week, and she had weekly wound care center clinic
appointments. Dr. Echo “performed a debridement of the abdominal wound with
mesh removal, the left abdominal fasciocutaneous flap, the right abdominal
fasciocutaneous flap, and placement of an incisional wound VAC (20 square
centimeters).” Dr. Echo evaluated Mendoza in June 2020 and documented that she
“continued to have abdominal tightness and cramping around the surgical scar,
which required her to wear an abdominal binder all day for support.”
On May 6, 2022, Mendoza filed health care liability claims against Dr. Wills
and other physicians, nurse practitioners, and facilities that involved in her post-
operation treatment, claiming that Dr. Wills breached the duty of care to Mendoza
by (1) “failing to conduct a thorough history and physical examination to evaluate
the source of [Mendoza’s] fever;” (2) “failing to conduct a thorough physical
examination of the abdominal surgical wound;” (3) “failing to obtain blood cultures;
(4) failing to order a chest x-ray;” (5) “failing to order advanced imaging (e.g. CT
scan) to access for infection of deep structures including the hernia mesh;” (6)
“failing to start empiric intravenous broad-spectrum antibiotics;” (7) “failing to
obtain an Infectious Disease consult;” and, (8) “failing to obtain a General Surgery
consult..”4
4
As previously discussed, Mendoza asserted medical negligence claims against Dr.
Van, Duenes, Valbuena, North Houston-TRMC, LLC d/b/a HCA Houston
Healthcare Tomball, IPC The Hospitalist Management Company, LLC, IPC
Healthcare, Inc., IPC Healthcare Services of Texas, PLLC, IPC PAC Healthcare
Services of Texas, PLLC, and THW Emergency Management of Houston, LLC.
None of these defendants are parties to this appeal. Although Dr. Arevalo, Dr.
Hulen, and Dr. Waller filed notices of interlocutory appeal from the trial court’s
denial of their respective motions to dismiss Mendoza’s healthcare liability claims
Dr. Cascone’s Expert Reports
Pursuant to Section 74.351(a) of the Texas Civil Practice and Remedies Code,
Mendoza served a timely report for Dr. Wills, Dr. Van, Valbuena, Dr. Arevalo, Dr.
Waller, and Duenes prepared by her expert, Dr. Cascone. With respect to Dr. Wills,
Dr. Cascone opined that the applicable standard of care required Dr. Wills to conduct
“a thorough history and physical examination to evaluate the source” of Mendoza’s
fever, and “a through physical examination of the abdominal surgical wound.” The
standard of care also required Dr. Wills to order blood cultures, a chest x-ray, and
“advanced imaging (e.g. CT scan) to access for infection of deep structures including
the hernia mesh.” Dr. Wills was also required to start “empiric intravenous broad-
spectrum antibiotics,” and obtain infectious disease and general surgery
consultations.
Dr. Cascone opined that Dr. Wills breached the standard of care on June 8,
2019 by not (1) examining Mendoza’s abdominal wall incision, (2) ordering blood
cultures, (3) ordering advanced imaging of Mendoza’s abdomen, (4) starting
Mendoza on empiric intravenous broad-spectrum antibiotics, (5) obtaining an
infectious disease consult, and (6) obtaining a general surgery consult.
against them, Dr. Arevalo, Dr. Hulen, and Dr. Waller subsequently filed a motion
to dismiss their appeals, which we granted on May 5, 2022.
With respect to causation, Dr. Cascone opined that these “failures led to a
failure to identify, curtail, and address developing infection.” As Dr. Cascone
explained,
The failure to identify and curtail developing infection led to worsening
of the abdominal surgical wound infection and abscess causing
involvement of the abdominal cavity and hernia mesh along with
worsening of the abdominal wound necrosis. This worsening, led to
intraabdominal abscess formation that became a 10 cm abscess by June
12, 2019. The development of a 10 cm intra-abdominal abscess
necessitated multiple abdominal surgeries for wound debridement,
abscess debridement, and lysis of adhesions. These surgeries led to the
formation of intra-abdominal adhesions, formation of abdominal wall
scar tissue and damage of abdominal wall nerve tissue. Adhesions, scar
tissue, and damage to nerve tissue cause permanent abdominal pain and
neuropathy.
Dr. Cascone further opined:
Had Ms. Mendoza’s abdominal wall incision been examined, blood
cultures been ordered; and advanced imaging of the abdomen been
ordered, the infection would have been identified. Had empiric
intravenous broad-spectrum antibiotics been started the developing
infection would have been curtailed. Had infectious disease consult
and a general surgery consult been obtained the developing infection
would have been addressed through debridement.
Had Dr. Wills and NP Valbuena undertaken the above measures, on
June 8th, the developing infection would have been found, curtailed,
and addressed. Had the developing infection been found, curtailed, and
addressed on the 8th, there would be no worsening over the next several
days of the abdominal surgical wound infection and abscess causing
involvement of the abdominal cavity and hernia mesh along with
worsening of the abdominal wound necrosis. Had this worsening not
occurred, a 10 cm intra-abdominal abscess would not have grown and
existed on June 12, 2019. Had the 10 cm intra-abdominal abscess not
existed, there would be no need for multiple abdominal surgeries for
wound debridement, abscess debridement, and lysis of adhesions. If
these surgeries had not occurred, Ms. Mendoza would not have
experienced the formation of intra-abdominal adhesions, formation of
abdominal wall scar tissue and damage of abdominal wall nerve tissue.
If Ms. Mendoza had not experienced adhesions, scar tissue, and damage
to nerve tissue, she would not now have permanent abdominal pain and
neuropathy.
After Dr. Wills objected to the adequacy of Dr. Cascone’s opinions on
standard of care, breach, and causation, Mendoza voluntarily served a supplemental
report by Dr. Cascone. In his supplemental report, Dr. Cascone explains that “[t]he
subject matter of surgical site infection diagnosis and treatment is recognized and
developed in multiple fields of practice, including infectious disease and those of
every named physician in this claim” including Dr. Wills. Dr. Cascone further
states:
The standards of care I previously enunciated, and will again detail
below, are not standards of care for a specialized field or area of medical
services. Rather, the standards of care I opine on regarding this claim—
standards of care for surgical site infection diagnosis and treatment—
are basic medical skills learned by all physicians as part of their basic
medical training and are required of all physicians regardless of
whether they received specialized, additional, or advanced education
and training. The identified, specific actions that should be taken—the
applicable standard of care—varies upon the circumstances,
circumstances that the individual physician happens upon at the time
they are rendering care.
With respect to Dr. Wills, Dr. Cascone reiterated the same standard of care
and breach he set forth in his initial report. Dr. Cascone further stated that as a
cosigner of nurse practitioner notes, Dr. Wills was also required to develop an
assessment and plan for Mendoza’s care in collaboration with the nurse practitioner
that fulfilled the standard of care.
Per Ms. Mendoza’s HCA medical records, page 257, the progress note
documents that the assessment and plan were developed in
collaboration with Dr. Wills. N.P. Valbuena developed the plan in
collaboration with Dr. Wills. The plan does not prescribe actions that
fulfill the standard of care. As I stated in my prior report, there was a
failure to examine the abdominal wall incision; a failure to order blood
cultures; a failure to order advanced imaging of the abdomen; a failure
to start empiric intravenous broad-spectrum antibiotics; a failure to
obtain infectious disease consult; and a failure to obtain a general
surgery consult. The plan of care did not meet the standard of care and
Dr. Wills participated in the development of this plan.
In his supplemental report, Dr. Cascone described the pathophysiology of
Mendoza’s surgical site infection:
A surgical site infection occurs when microbial contamination of a
surgical wound causes the development of inflammation and infection.
The body’s host defenses attempt to eradicate the infection by
recruiting white blood cells (WBC) to the surgical site in an attempt to
stop bacteria replication and eradicate the presence of bacteria from the
surgical site. The combination of WBCs and bacteria causes the
development of purulence. The surgical wound inflammation and
purulence causes the formation of abscess, adhesions, and tissue death
(i.e. necrosis). The necrosis facilitates bacterial replication and
inflammation. If the surgical wound inflammation, necrosis, and
purulence are left untreated or are not properly treated then the infection
will continue to progress leading to growth of the abscess and more
adhesion formation. In addition, systemic inflammation (e.g. fever) can
develop. If the infection continues to progress then the body may
develop a dysregulated inflammation causing sepsis.
With respect to causation, Dr. Cascone further opined
To dovetail my original report, the infection will progress and worsen
if it is not properly identified, curtailed, and addressed. This worsening
development as detailed in the preceding paragraph is progressively
occurring continuously and for this reason, each identified breach
contributed to and is causally linked to Ms. Mendoza’s injuries
regardless of when the breach occurred. While the end result was a 10
cm abscess on June 12, 2019, which in turn necessitated multiple
surgeries resulting in permanent abdominal pain and neuropathy, this
end result was the product of the progressive, continuous process
detailed above. The 10 cm abscess did not occur or form overnight. It
was permitted to progressively form, beginning on June 7, 2019, and
continuing through June 12, 2019, due to a failure to identify, curtail,
and address the continuously and progressively worsening infection.
Each individual breach of the applicable standards, alone and in
combination, contributed to the end result because of the continuously
and progressively worsening pathophysiology of a surgical site
infection. Each breach—regardless of when the specific breach
occurred—led to a failure to identify, curtail, or address the infection
properly. The fact that Ana’s infection continuously and progressively
worsened is the result of each of those failures.
Dr. Wills filed a motion to dismiss and objections to Dr. Cascone’s
supplemental report. Dr. Wills argued Dr. Cascone’s supplemental report failed to
cure the deficiencies of the initial report because it continued to apply identical
standards of care to each provider, regardless of their role and made a more detailed,
yet still conclusory opinion on causation.
On December 13, 2021, the trial court denied Dr. Wills’ objections to Dr.
Cascone’s expert report and Dr. Wills’ motion to dismiss. This interlocutory appeal
followed.
Chapter 74 Expert Reports
Dr. Wills argues the trial court abused its discretion in denying his motion to
dismiss Mendoza’s health care liability claims against him because Dr. Cascone
failed to provide a fair summary of his opinions regarding the standard of care
applicable to Dr. Wills, the manner in which the care rendered by Dr. Wills failed to
meet that standard, and the causal relationship between that alleged failure and the
injuries claimed. According to Dr. Wills, Dr. Cascone’s opinions with respect to
standard of care and breach are insufficient because Dr. Cascone does not explain
why he applies the same standard of care to all defendants, regardless of their
practice area and role in Mendoza’s care, and because Dr. Cascone’s opinion on the
applicable standard of care is inaccurate because it conflicts with the facts set forth
in his reports and does not account for the fact that Dr. Wills’ treatment of Mendoza
was limited to his role as cosigner of the nurse practitioners’ progress notes. Dr.
Wills further contends that Dr. Cascone’s opinion with respect to causation is
insufficient because it is conclusory and fails to link his specific conduct to
Mendoza’s alleged injury.
A. Applicable Law
Chapter 74 of the Texas Medical Liability Act (“TMLA”) requires a health
care liability claimant to serve each defendant health care provider with an adequate
expert report no later than the 120th day after the defendant filed its original answer.
See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (l), (r)(6); see generally E.D. by &
through B.O., Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022). By
doing so, Chapter 74 serves as a gatekeeper through which no medical negligence
cause of action may proceed unless the plaintiff has made a good-faith effort to
demonstrate that a qualified medical expert believes that a defendant’s conduct
breached the applicable standard of care and caused the claimed injury. See TEX.
CIV. PRAC. & REM. CODE § 74.351(l), (r)(6); see generally E.D. by & through B.O.,
644 S.W.3d at 664.
To accomplish this goal, the TMLA requires a health care liability claimant
to “serve on [a defendant] or the party’s attorney one or more expert reports, with a
curriculum vitae of each expert listed in the report for each physician or health care
provider against whom a liability claim is asserted” to substantiate her claims. TEX.
CIV. PRAC. & REM. CODE § 74.351(a); see E.D. by & through B.O., 644 S.W.3d at
662; Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018). An
expert report is adequate if it makes an objective good-faith effort to provide a fair
summary of the expert’s opinions as of the date of the report regarding (1) the
applicable standards of care, (2) the manner in which the care rendered by the
defendant physician or health care provider failed to meet the standards, and (3) the
causal relationship between that failure and the injury, harm, or damages claimed by
the plaintiff. TEX. CIV. PRAC. & REM. CODE § 74.351(l), (r)(6); see E.D. by &
through B.O., 644 S.W.3d at 662.
To constitute a good -faith effort, the report must provide enough information
to fulfill two purposes: (1) inform the defendant of the specific conduct that the
plaintiff has called into question; and (2) provide a basis for the trial court to
conclude that the claim has merit. See E.D. by & through B.O., 644 S.W.3d at 664
(quoting Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018)). A report that merely
states the expert’s conclusions about standard of care, breach, and causation is
conclusory and does not fulfill these two purposes. See Am. Transitional Care Ctrs.
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert must explain
the basis for his statements and link his conclusions to the facts. See Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). In determining whether the report
meets those requirements, the court should look no further than the report itself,
because all the information relevant to the inquiry must be contained within the
report’s four corners. See id. (citing Palacios, 46 S.W.3d at 878); see also Austin
Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.)
(stating four-corners requirement “precludes a court from filling gaps in a report by
drawing inferences or guessing as to what the expert likely meant or intended”).
Courts must view the report in its entirety, rather than isolating specific portions or
sections, to determine whether it is sufficient. See Baty, 543 S.W.3d at 694; see
also Austin Heart, P.A., 228 S.W.3d at 282 (“The form of the report and the location
of the information in the report are not dispositive.”).
“While an expert’s report must not be conclusory, the court’s skepticism about
the expert’s opinion does not render it so.” See E.D. by & through B.O., 644 S.W.3d
at 667 (citing Abshire, 563 S.W.3d at 226). “The ‘fair summary’ benchmark is not
an evidentiary standard, and at this early stage of the litigation, ‘we do not require a
claimant to present evidence in the report as if it were actually litigating the merits.’”
E.D. by & through B.O., 644 S.W.3d at 667 (quoting Abshire, 563 S.W.3d at 226).
Thus, the accuracy and reasonableness of the expert’s opinions are not relevant to
the analysis of whether his opinion constitutes a good-faith effort to meet the
statute’s requirements. See Miller v. JSC Lake Highlands Operations, LP, 536
S.W.3d 510, 516–17 (Tex. 2017) (stating reasonability of expert’s opinion “is not
relevant to the analysis of whether the expert’s opinion constitutes a good-faith
effort”); see also Abshire, 563 S.W.3d at 226 (stating evidentiary value of expert’s
opinions “is a matter to be determined at summary judgment and beyond”); Holt v.
Holt, No. 01-17-00008-CV, 2017 WL 3483211, at *3 (Tex. App.—Houston [1st
Dist.] Aug. 15, 2017, pet. denied) (mem. op.) (“The court’s role is not to determine
the truth or falsity of the expert’s opinion, or the facts upon which the expert bases
such opinions, but to act as a gatekeeper in evaluating the sufficiency of the report
itself.”) (citing Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st
Dist.] 2010, no pet.)).
When a plaintiff serves an initial expert report and a supplemental report, we
consider the reports together when assessing whether the plaintiff made a good-faith
effort to demonstrate that a qualified medical expert believes that a defendant’s
conduct breached the applicable standard of care and caused the claimed injury, as
required by Chapter 74. See TEX. CIV. PRAC. & REM. CODE § 74.351(i) (allowing
expert reports to be considered together in determining whether adequate expert
report has been served); Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193,
196 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (considering expert’s initial
and supplemental reports together in assessing plaintiff’s compliance with Chapter
74).
B. Standard of Review
We review a trial court’s ruling on a Chapter 74 motion to dismiss for an abuse
of discretion. See Baty, 543 S.W.3d at 692 (citing Palacios, 46 S.W.3d at 878). A
trial court abuses its discretion when it acts in an arbitrary or unreasonable manner
or without reference to any guiding rules or principles. See Wright, 79 S.W.3d at
52. We may not substitute our own judgment for that of the trial court merely
because we would have ruled differently. Id.; see also Gray v. CHCA Bayshore L.P.,
189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). When
reviewing decisions for an abuse of discretion, “[c]lose calls must go to the trial
court.” Larson v. Downing, 197 S.W.3d 303, 305 (Tex. 2006).
We conduct our review keeping in mind that Chapter 74’s expert report
requirements are intended to deter frivolous claims, not to dispose of claims
regardless of their merit. Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011);
see also Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (“The
Legislature’s goal was to deter baseless claims, not to block earnest ones.”); Henry
v. Kelly, 375 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)
(noting Texas Supreme Court “has encouraged trial courts to liberally construe
expert reports in favor of plaintiffs”).
C. Adequacy of Dr. Cascone’s Reports as to Standard of Care and Breach
Dr. Wills argues the trial court abused its discretion by denying his motion to
dismiss because Dr. Cascone’s expert reports do not sufficiently address the
elements of standard of care and breach. According to Dr. Wills, Dr. Cascone’s
opinions on these elements are insufficient because Dr. Cascone initially “applied
identical standards of care to all defendants, regardless of their role in the patient’s
care” and then “attempted to cure this deficiency by stating that the identical standard
of care articulated is the same for ‘any physician’ and ‘any nurse practitioner.’” Dr.
Wills argues that Dr. Cascone’s opinion is conclusory because he does not explain
why identical standards of care apply to multiple defendants. Dr. Wills further
contends that Dr. Cascone’s opinion on the applicable standard of care is inaccurate
because it conflicts with the facts set forth in his reports and does not account for the
fact that Dr. Wills’ treatment of Mendoza was limited to his role as cosigner of the
nurse practitioners’ progress notes.
1. Applicable Law
Standard of care is defined by what an ordinarily prudent health care provider
or physician would have done under the same or similar circumstances. Palacios,
46 S.W.3d at 880. Identifying the standard of care is critical because “[w]hether a
defendant breached his or her duty to a patient cannot be determined absent specific
information about what the defendant should have done differently.” Id. “While a
fair summary is something less than a full statement of the applicable standard of
care and how it was breached, even a fair summary must set out what care was
expected, but not given.” Id.; see also Abshire, 563 S.W.3d at 226 (noting that to
identify standard of care adequately expert report must set forth “specific
information about what the defendant should have done differently”). When a
plaintiff sues more than one defendant, the expert report must set forth the standard
of care for each defendant. See Univ. of Tex. Med. Branch v. Railsback, 259 S.W.3d
860, 864 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
2. Analysis
In his supplemental report, Dr. Cascone explains that “[t]he subject matter of
surgical site infection diagnosis and treatment is recognized and developed in
multiple fields of practice, including infectious disease and those of every named
physician in this claim” including Dr. Wills, and Dr. Cascone reiterates that the
standards of care he identifies in his reports “are not standards of care for a
specialized field or area of medical services.” Dr. Cascone opines that the “standards
of care for surgical site infection diagnosis and treatment . . . are basic medical skills
learned by all physicians as part of their basic medical training and are required of
all physicians regardless of whether they received specialized, additional, or
advanced education and training.” Dr. Cascone further states that the “identified,
specific actions that should be taken—the applicable standard of care—varies upon
the circumstances, circumstances that the individual physician happens upon at the
time they are rendering care.”
Dr. Cascone states in his initial report that Mendoza, who had been running a
fever and whose abdominal surgical incision exhibited signs “consistent with a
surgical site infection with foul smelling purulence and skin necrosis,” “had
indisputable signs and symptoms of a post-operative surgical site infection and
wound necrosis on June 8, 2019.” Dr. Cascone opines that the applicable standard
of care required under such circumstances required Dr. Wills to (1) conduct a
thorough history and physical examination of the patient, including examination of
the surgical wound, to evaluate the source of the patient’s fever, (2) order blood
cultures, a chest x-ray, and “advanced imaging (e.g. CT scan) to access for infection
of deep structures including the hernia mesh,” (3) start the patient on “empiric
intravenous broad-spectrum antibiotics,” and (4) obtain infectious disease and
general surgery consultations.
Dr. Cascone further opines that Dr. Wills breached these standards of care on
June 8, 2019 by not (1) examining Mendoza’s abdominal wall incision, (2) ordering
blood cultures, a chest x-ray, and advanced imaging of Mendoza’s abdomen,
(3) starting Mendoza on empiric intravenous broad-spectrum antibiotics, and
(4) obtaining infectious disease and general surgery consultations.
After reviewing the reports in their entirety, we conclude that Dr. Cascone’s
reports inform Dr. Wills that, as a physician rendering care to a post-surgical patient
who presents with a fever and signs of an abdominal surgical site infection, Dr. Wills
has a duty to conduct a thorough history and physical examination of the patient,
including examination of the surgical incision, order blood cultures, a chest x-ray,
and advanced imaging of the patient’s abdomen, start the patient on “empiric
intravenous broad-spectrum antibiotics,” and obtain infectious disease and general
surgery consultations. Dr. Cascone’s reports also inform Dr. Wills how he believes
Dr. Wills breached those standards of care on June 8, 2019, namely, by not (1)
examining Mendoza’s abdominal wall incision, (2) ordering blood cultures, a chest
x-ray, and advanced imaging of Mendoza’s abdomen, (3) starting Mendoza on
empiric intravenous broad-spectrum antibiotics, and (4) obtaining infectious disease
and general surgery consultations. Having done so, Dr. Cascone’s reports inform
Dr. Wills of the specific conduct he has called into question and provide Dr. Wills
with a fair summary of Dr. Cascone’s opinions concerning how Dr. Wills failed to
meet the applicable standards of care with respect to his role in Mendoza’s
post-surgical care. See E.D. by & through B.O., 644 S.W.3d at 664; Abshire, 563
S.W.3d at 226; Palacios, 46 S.W.3d at 879–80.
Dr. Wills argues Dr. Cascone was required to provide a standard of care for
“a physician who did not examine the patient but only co-signed a note. Or, at least,
Cascone was required to provide some explanation that the identical standard of care
was applicable to Dr. Wills under his specific circumstances.” Dr. Wills further
contends that he did not “directly participate” in Mendoza’s care because he only
cosigned the nurse practitioner’s note and collaborated on the assessment and plan
portion of that note after Valbuena examined Mendoza and Dr. Cascone
mischaracterizes this conduct as “direct particip[ation]” in Mendoza’s care. Dr.
Wills also argues that Dr. Cascone’s opinion that “identical standard[s of care]
appl[y] to all defendants is in direct conflict with Cascone’s reiteration of the facts”
in his reports, and this Court can infer from the facts set forth in his reports that Dr.
Cascone’s opinion on the applicable standard of care is inaccurate. Dr. Wills’
arguments are not persuasive.
As previously discussed, Dr. Cascone articulated a standard of care “for
surgical site infection diagnosis and treatment” that he opines applies to all
physicians and he explains that this standard applies to all physicians, including Dr.
Wills, because these are “basic medical skills learned by all physicians as part of
their basic medical training.” Thus, Dr. Cascone’s reports explain why he believes
the defendants, including Dr. Wills, share similar standards of care with respect to
Mendoza’s medical treatment despite their differing specialties and the specific roles
they played in her care.5 See Gray, 189 S.W.3d at 859 (recognizing that while
identical standards of care can apply to more than one health care provider, “such
generic statements, without more, can reasonably be deemed conclusory”); see
generally Sanjar v. Turner, 252 S.W.3d 460, 467 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (“nothing . . . explicitly forbids applying the same standard of care to
more than one physician if, as in the present case, they all owed the same duty to the
patient”).
While Dr. Wills argues that we can infer that Dr. Cascone’s opinion on the
applicable standard of care is inaccurate, courts are not at liberty to draw inferences
when assessing the sufficiency of a Chapter 74 expert report. See Wright, 79 S.W.3d
at 53 (stating reviewing courts cannot draw inferences and are limited to information
5
Dr. Wills’ assertion that Dr. Cascone “applied identical standards of care to each
provider, regardless of their role” is not supported by the record. Although there is
considerable overlap among the standards of care applicable to Dr. Wills and the
other defendants, Dr. Cascone also modified these standards depending on
Mendoza’s clinical presentation and the facts in existence when the defendants
treated Mendoza. For example, unlike when Dr. Wills treated Mendoza on June 8,
2019, the physicians who treated Mendoza on June 9, 2019 had access to the results
of Mendoza’s wound GMS, which showed white blood cells and Gram-negative
rods, and unlike Dr. Wills, the standard of care also required those physicians to
evaluate the findings of the GMS.
contained within four corners of expert’s report). Moreover, whether Dr. Cascone’s
opinion is correct or even reasonable is not relevant with respect to whether his
opinion constitutes a good-faith effort to meet the statute’s requirements. See Miller,
536 S.W.3d at 516–17 (stating reasonability of expert’s opinion “is not relevant to
the analysis of whether the expert’s opinion constitutes a good-faith effort”).
Similarly, although Dr. Wills challenges the accuracy of Dr. Cascone’s opinions, the
facts that he relies upon, and the factual inferences he has drawn from those facts,
those issues are not before us at this stage of the litigation. See Abshire, 563 S.W.3d
at 226 (stating “ultimate evidentiary value” of expert’s opinions “is a matter to be
determined at summary judgment and beyond” and faulting court of appeals for
“improperly examin[ing] the merits of the expert’s claims” when assessing
sufficiency of expert report); see also Clavijo v. Fomby, No. 01-17-00120-CV, 2018
WL 2976116, at *10 (Tex. App.—Houston [1st Dist.] June 14, 2018, pet. denied)
(mem. op.) (“Whether an expert’s factual inferences made in the expert report are
accurate is an issue for summary judgment, not a Chapter 74 motion to dismiss.”).
Furthermore, to the extent Dr. Cascone’s expert reports are inconsistent or
contradictory, as Dr. Wills argues, the trial court was within its discretion to resolve
any such inconsistencies. See Albo v. Bahn, No. 01-17-00409-CV, 2018 WL
2204295, at *4 (Tex. App.—Houston [1st Dist.] May 15, 2018, no pet.) (mem. op.)
(“An expert report that contains inconsistent or contradictory statements, however,
may still constitute a good-faith effort to comply with Chapter 74’s expert report
requirements.”) (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144
(Tex. 2015)).
After reviewing Dr. Cascone’s reports as a whole, we conclude that the trial
court reasonably could have determined that these reports represent a good-faith
effort to inform Dr. Wills of the applicable standards of care and the ways in which
he allegedly breached those standards. See E.D. by & through B.O., 644 S.W.3d at
664; Abshire, 563 S.W.3d at 226; Palacios, 46 S.W.3d at 879–80. Therefore, the
trial court did not abuse its discretion by denying Dr. Wills’ Chapter 74 motion to
dismiss on the ground that Dr. Cascone’s reports were deficient as to standard of
care and breach. See E.D. by & through B.O., 644 S.W.3d at 664; see also Larson,
197 S.W.3d at 304 (stating when reviewing for abuse of discretion, “[c]lose calls
must go to the trial court”).
D. Causation
Dr. Wills argues that Dr. Cascone’s reports are insufficient as to causation
because Dr. Cascone’s opinion is conclusory, and he fails to link Mendoza’s alleged
injury to any specific act or omission by Dr. Wills.6
6
Dr. Wills also argues without elaboration that Dr. Cascone “fails to communicate
the requisite foreseeability and cause-in-fact elements of causation.”
1. Applicable Law
To address causation, an expert report must explain how and why the
defendant’s breach of the standard of care proximately caused the plaintiff’s injury.
See E.D. by & through B.O., 644 S.W.3d at 664 (citing Abshire, 563 S.W.3d at 224).
The expert “must explain the basis of his statements and link conclusions to specific
facts” and provide enough information from which the trial court could reasonably
conclude that the claim has merit. Abshire, 563 S.W.3d at 223, 226. The explanation
must be factual because “without factual explanations, the reports are nothing more
than the ipse dixit of the experts, which . . . are clearly insufficient.” Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017); see
also Abshire, 563 S.W.3d at 224 (“A conclusory statement of causation is
inadequate; instead, the expert must explain the basis of his statements and link
conclusions to specific facts.”). An expert report is only required to provide notice
of what conduct forms the basis for the plaintiff’s complaints; it is not required to
prove a defendant’s liability at this early stage of the litigation. Apodaca v. Russo,
228 S.W.3d 252, 255 (Tex. App.—Austin 2007, no pet.); see also Abshire, 563
S.W.3d at 224 (stating “the expert need not prove the entire case or account for every
known fact” to satisfy “how and why” requirement). “An expert may show causation
by explaining a chain of events that begins with a defendant doctor’s negligence and
ends in injury to the plaintiff.” Head v. Hagan, 600 S.W.3d 375, 379 (Tex. App.—
Tyler 2019, no pet.) (citing McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex.
App.—Texarkana 2012, no pet.)).
Proximate cause has two components: (1) foreseeability and (2) cause in fact.
Zamarripa, 526 S.W.3d at 461. 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.” Id. at 460 (internal quotations
omitted); see also Wright, 79 S.W.3d at 53 (“[A] report’s adequacy does not depend
on whether the expert uses any particular ‘magical words.’”). A health care
provider’s breach is a foreseeable cause of the plaintiff’s injury if a health care
provider of ordinary intelligence would have anticipated the danger caused by the
negligent act or omission. Curnel v. Hous. Methodist Hosp.–Willowbrook, 562
S.W.3d 553, 562 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (citing Price v.
Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)).
“For a negligent act or omission to have been a cause-in-fact of the harm, 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 (citation omitted).. “[A] defendant’s act
or omission need not be the sole cause of an injury, as long as it is a substantial factor
in bringing about the injury.” Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex.
2017).
2. Analysis
Dr. Wills argues that Dr. Cascone’s causation opinions are conclusory and Dr.
Cascone does not link Dr. Wills’ acts or omissions to Mendoza’s alleged injury, and
instead, Dr. Cascone merely asserts that “each identified breach contributed to and
is causally linked to Ms. Mendoza’s injuries regardless of when the breach
occurred.”
In his reports, Dr. Cascone opines that Mendoza developed a surgical site
infection and abscess on June 7, 2019. Although Mendoza “had indisputable signs
and symptoms of a post-operative surgical site infection and wound necrosis on June
8, 2019,” Dr. Wills did not (1) examine Mendoza’s abdominal wall incision, (2)
order blood cultures, a chest x-ray, and advanced imaging of Mendoza’s abdomen,
(3) start Mendoza on empiric intravenous broad-spectrum antibiotics, and (4) obtain
infectious disease and general surgery consultations, and these omissions deviated
from the applicable standard of care.
Dr. Cascone then draws a line directly connecting Dr. Wills’ omissions to
Mendoza’s injuries. According to Dr. Cascone, Mendoza’s existing surgical cite
infection would have been identified if Dr. Wills had examined Mendoza’s
abdominal wall incision and ordered blood cultures and advanced imaging of
Mendoza’s abdomen on June 8, 2019. He further opines that if Dr. Wills had started
Mendoza on empiric intravenous broad-spectrum antibiotics on June 8, 2019,
Mendoza’s infection “would have been curtailed,” and had Dr. Wills had obtained
an infectious disease and general surgery consult on June 8, 2019, Mendoza’s
“developing infection would have been addressed through debridement.”
Dr. Cascone states that Dr. Wills’ failure to identify and curtail Mendoza’s
surgical wound infection on June 8, 2019 caused Mendoza’s abdominal surgical
wound infection and the abscess, which began forming on June 7, 2019, to
progressively worsen, which led to the “involvement of the abdominal cavity and
hernia mesh along with worsening of the abdominal wound necrosis.” Mendoza’s
worsening surgical wound infection caused her to develop a 10-centimeter
intraabdominal abscess which was filled with necrotic tissue by June 12, 2019.
Mendoza had to undergo “multiple abdominal surgeries for wound debridement,
abscess debridement, and lysis of adhesions” because of her large intraabdominal
abscess. Dr. Cascone further opines that these surgeries caused Mendoza to develop
“intra-abdominal adhesions, formation of abdominal wall scar tissue and damage of
abdominal wall nerve tissue,” which caused Mendoza to suffer “permanent
abdominal pain and neuropathy.”
In his supplemental report, Dr. Cascone explains that all physicians learn
about surgical site infection diagnosis and treatment as part of their basic medical
training. He explains that surgical site infections develop when bacteria contaminate
the wound and cause “inflammation and infection” to develop. The host’s body
responds by sending white blood cells to the site to eradicate the bacteria and prevent
it from replicating and the combination of the bacteria and white blood cells causes
purulence to develop. The inflammation and purulence cause abscesses and
adhesions to develop and “tissue death (i.e. necrosis).” The necrosis, in turn,
“facilitates bacterial replication and inflammation.” Dr. Cascone explains that “the
infection will continue to progress leading to growth of the abscess and more
adhesion formation” if the inflammation, necrosis, and purulence are untreated or
not properly treated. According to Dr. Cascone, the worsening infection and tissue
damage “is progressively occurring continuously and for this reason, each identified
breach contributed to and is causally linked to Ms. Mendoza’s injuries regardless of
when the breach occurred.” According to Dr. Cascone, “[e]ach individual breach of
the applicable standards, alone and in combination, contributed to the end result
because of the continuously and progressively worsening pathophysiology of a
surgical site infection.”
Having done so, Dr. Cascone’s reports provide a factually supported
explanation of “how and why” Dr. Wills’ breaches caused Mendoza’s injuries. See
E.D. by & through B.O., 644 S.W.3d at 664 (stating report adequately addresses
causation when expert explains “how and why” breach of standard caused injury in
question by “explain[ing] the basis of his statements and link[ing] conclusions to
specific facts”) (quoting Abshire, 563 S.W.3d at 224)). Dr. Cascone also provided
facts sufficient to demonstrate that a physician of ordinary intelligence would have
anticipated the danger that Mendoza’s abdominal surgical site infection and abscess
would continue to progressively worsen and grow in size and scope such that
abdominal surgeries would be required to address the condition, and that such
surgeries would result in permanent abdominal pain and neuropathy, when he failed
to examine Mendoza’s abdominal wall incision, order blood cultures, a chest x-ray,
and advanced imaging of Mendoza’s abdomen, start Mendoza on empiric
intravenous broad-spectrum antibiotics, and obtain infectious disease and general
surgery consultations for Mendoza. See Curnel, 562 S.W.3d at 562 (stating breach
is foreseeable cause of plaintiff’s injury if health care provider of ordinary
intelligence would have anticipated danger caused by negligent act or omission).
The fact that Dr. Cascone describes some of his opinion on causation with respect
to all of the defendants, including Dr. Wills, does not alter this conclusion because
a negligent act or omission “need not be the sole cause of an injury, as long as it is a
substantial factor in bringing about the injury.” Bustamante, 529 S.W.3d at 457.
Dr. Wills contends that Dr. Cascone does not provide enough facts to
sufficiently explain how any of the standards of care he ascribes to Dr. Wills caused
Mendoza’s injuries. In particular, Dr. Wills argues the reports are deficient as to
causation because Dr. Cascone does not state what a thorough history and physical
examination, blood cultures, chest x-ray, or “unspecified advanced imaging” would
have shown that would have changed the outcome in this case. Dr. Wills also faults
Dr. Cascone for the not identifying the empiric IV antibiotic that should have been
ordered, when it should have been ordered, or explaining how it would it have
affected the outcome. He also faults Dr. Cascone for not identifying the type of
bacteria that caused the infection, “when was it evident, and what medication was it
susceptible to that was not ordered.” An expert report, however, does not need to
contain such detailed information to provide a fair summary of the expert’s opinions
on causation. See Abshire, 563 S.W.3d at 227 (stating report that did not “designate
a specific documentary procedure that should have been used” was not deficient as
to causation because such detail “is simply not required at this stage of the
proceedings”) (quoting Baty, 543 S.W.3d at 697); Naderi v. Ratnarajah, 572 S.W.3d
773, 781–82 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (rejecting argument
expert report was deficient as to causation because expert did not “identify what
antibiotics should have been used, if it would have made a difference which were
used and the timing of use, or anything else that would clarify the what, why, and
when of antibiotics”; “[A]n expert report is not required to contain that level of detail
at this early stage of the litigation.”).
After reviewing Dr. Cascone’s reports as a whole, we conclude the trial court
reasonably could have determined Dr. Cascone’s reports constituted a good-faith
effort to provide a fair summary of Dr. Cascone’s opinion regarding how Dr. Wills’
alleged breaches of the applicable standard of care caused Mendoza’s injuries. See
E.D. by & through B.O., 644 S.W.3d at 662 (citing TEX. CIV. PRAC. & REM. CODE
§ 74.351(l), (r)(6)). Thus, the trial court did not abuse its discretion by denying Dr.
Wills’ motion to dismiss on the ground that Dr. Cascone’s reports were deficient as
to causation. See id.; see also Larson, 197 S.W.3d at 304 (stating when reviewing
for abuse of discretion, “[c]lose calls must go to the trial court”).
We overrule Dr. Wills’ challenges to the sufficiency of Dr. Cascone’s reports.
Conclusion
We affirm the trial court’s order denying Dr. Wills’ motion to dismiss.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.