Mohsen Shahpouri Arani, M.D v. Ronnie J. Fisher, Claudia M. Graeter, Kevin D. Fisher, and Lou Ellen Beasley, Individually and as Heirs and Personal Representative of the Estate of Maggie Jackson ( 2018 )

Affirmed and Memorandum Opinion filed October 25, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00117-CV
MOHSEN SHAHPOURI ARANI, M.D., Appellant
V.
RONNIE J. FISHER, CLAUDIA M. GRAETER, KEVIN D. FISHER, AND
LOU ELLEN BEASLEY, INDIVIDUALLY AND AS HEIRS AND
PERSONAL REPRESENTATIVE OF THE ESTATE OF MAGGIE
JACKSON, Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2016-60520
MEMORANDUM OPINION
In this interlocutory appeal, a physician challenges the trial court’s denial of
his motion to dismiss under the Texas Medical Liability Act (“TMLA”).1 The
1
The TMLA is codified at Chapter 74 of the Texas Civil Practice and Remedies Code. See
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 864-82 (codified
at Tex. Civ. Prac. & Rem. Code ch. 74).
physician contends that the trial court was required to dismiss the plaintiffs’ claims
against him because the plaintiffs’ expert report was inadequate to establish
causation. Because we conclude that the expert’s conclusions regarding causation
are sufficient, we affirm the trial court’s ruling. As all dispositive issues are settled
in law, we issue this memorandum opinion. Tex. R. App. P. 47.4.
Background
According to appellees’ original petition, Maggie Jackson presented to a
hospital in Tomball, Texas, complaining of shortness of breath. Dr. Mohsen Arani,
an oncologist, admitted Jackson for evaluation of her white blood cell count.
Appellees claim that Dr. Arani instructed hospital staff to perform a bone marrow
biopsy on Jackson and to administer to Jackson “a highly toxic drug” for treatment
of leukemia.2 Further, appellees allege that Dr. Arani instructed staff to administer
the drug multiple times without obtaining Jackson’s consent or informed consent.
Jackson died approximately one week later.
Appellees, as heirs and personal representatives of Jackson’s estate, sued
Tomball Texas Hospital and Dr. Arani for negligence. Appellees timely served a
report from Dr. Harris VK Naina, a practicing clinician and oncologist. Dr. Naina
opined that Dr. Arani breached the standard of care, which required Dr. Arani to
obtain informed consent from Jackson before administering Hydrea. Further, in Dr.
Naina’s opinion, Dr. Arani’s failure to obtain informed consent, followed by the
administration of Hydrea, probably led Jackson to develop tumor lysis syndrome,
heart block, and kidney failure, which ultimately caused her death.
Dr. Arani objected to Dr. Naina’s report as deficient and moved to dismiss
2
Appellees allege that hospital staff administered Hydrea (hydroxyurea), an oral
chemotherapy drug.
2
appellees’ claims against him under the TMLA. See Tex. Civ. Prac. & Rem. Code
§ 74.351(b). Specifically, Dr. Arani contended that Dr. Naina’s report was
inadequate regarding causation because: (1) it failed to state that a reasonable person
would have refused to take Hydrea to reduce white blood cell count; and (2) it failed
to explain how the failure to disclose the risks of Hydrea changed Jackson’s
outcome.
Appellees filed a response, in which they argued among other things that Dr.
Arani’s objections and motion applied only the standard for informed consent cases,
which was an incorrect standard. Appellees noted that they also alleged Jackson was
administered Hydrea without any consent at all and, therefore, the standard for no
consent cases applied, citing this court’s opinion in McGraw-Wall v. Giardino, No.
14-10-00838-CV, 2011 WL 1419608, at *1 n.5 (Tex. App.—Houston [14th Dist.]
Apr. 14, 2011, pet. denied) (mem. op.). Appellees drew a distinction between
medical liability allegations asserting a total lack of consent and allegations asserting
the failure to secure informed consent. See Schaub v. Sanchez, 229 S.W.3d 322,
323-24 (Tex. 2007) (per curiam) (distinguishing between lack of consent cases and
lack of informed consent cases). Applying either standard, appellees argued, Dr.
Naina’s expert report was sufficient. The trial court overruled Dr. Arani’s objections
and denied his motion to dismiss.
Dr. Arani timely challenged the ruling in this accelerated interlocutory appeal,
and we have jurisdiction.3 Dr. Arani seeks either a rendition of judgment that
appellees’ case be dismissed or, alternatively, a remand to the trial court to afford
appellees an opportunity to cure the allegedly deficient expert report.
3
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) (“A person may appeal from an
interlocutory order . . . [that] denies all or part of the relief sought by a motion under Section
74.351(b).”); Tex. R. App. P. 28.1(a) (appeals from interlocutory orders are accelerated appeals).
3
Analysis
Dr. Arani raises three issues. First, he argues that Dr. Naina’s report utilized
an incorrect standard for informed consent cases because it failed to address whether
a reasonable person would have refused treatment had all risks been fully disclosed.
Second, Dr. Arani argues that Dr. Naina’s report was based on an improper causation
analysis. Third, Dr. Arani argues that Dr. Naina’s opinion that Jackson would have
refused to take Hydrea obviates appellees’ informed consent claim, and further that
the report fails to satisfy the necessary causal standard if appellees’ claim is based
on total lack of consent.
A. Applicable Law and Standard of Review
The TMLA requires a plaintiff asserting a health care liability claim4 to file
an expert report and serve it on each party not later than the 120th day after the
petition is filed. See Tex. Civ. Prac. & Rem. Code § 74.351(a). An 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 expert report need not marshal all of the plaintiff’s proof, but it must
4
The TMLA defines a “health care liability claim” as:
a cause of action against a health care provider or physician for treatment, lack of
treatment, or other claimed departure from accepted standards of medical care, or
health care, or safety or professional or administrative services directly related to
health care, which proximately results in injury to or death of a claimant, whether
the claimant’s claim or cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). There is no dispute that appellees’ claim against
Dr. Arani is a health care liability claim.
4
include the expert’s opinion on the three statutory elements: standard of care, breach,
and causation. See Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873,
878 (Tex. 2001); Kelly v. Rendon, 255 S.W.3d 665, 672 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). To pass muster, a plaintiff’s expert report must “represent an
objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).” Tex. Civ. Prac. & Rem. Code § 74.351(l). An expert report
meeting the good faith standard must provide sufficient information to fulfill two
statutory 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 claims have merit. See Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2010);
Palacios, 46 S.W.3d at 879.
To meet these minimum standards, “‘the expert must explain the basis of his
statements to link his conclusions to the facts.’” Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002) (per curiam) (quoting Earle v. Ratliff, 998 S.W.2d 882,
890 (Tex. 1999)). The expert need not use “magical words” nor is the report held to
the same standards as evidence offered on summary judgment or at trial. Jelinek v.
Casas, 328 S.W.3d 526, 540 (Tex. 2010); see also Kelly, 255 S.W.3d at 672. But
the expert must articulate more than bare conclusions or speculation. Rice v.
McLaren, 554 S.W.3d 195, 200-01 (Tex. App.—Houston [14th Dist.] 2018, no pet.);
see also Palacios, 46 S.W.3d at 879. A report that merely states the expert’s
conclusions as to the standard of care, breach, and causation does not fulfill the
statutory purposes. Scoresby, 346 S.W.3d at 556 & n.61.
If the trial court concludes that the expert report does not constitute an
objective good faith effort to comply with the statute, the court must, on the motion
of the affected health care provider, dismiss the plaintiff’s claim with prejudice. Tex.
Civ. Prac. & Rem. Code § 74.351(b), (l); Miller v. JSC Lake Highlands Operations,
5
LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam); Bowie Mem’l Hosp., 79 S.W.3d
at 51-52; Gannon v. Wyche, 321 S.W.3d 881, 885 (Tex. App.—Houston [14th Dist.]
2010, pet. denied). If, on the other hand, the trial court concludes that the report
represents an objective good faith effort to comply with the statute but is nevertheless
deficient in some regard, the court may grant the plaintiff one thirty-day extension
to attempt to cure the deficiency. See Tex. Civ. Prac. & Rem. Code § 74.351(c);
Scoresby, 346 S.W.3d at 556-57; Gannon, 321 S.W.3d at 885.
We review a trial court’s ruling on a motion to dismiss challenging the
adequacy of an expert report for an abuse of discretion. See Palacios, 46 S.W.3d at
875; Rice, 554 S.W.3d at 200. A trial court abuses its discretion if it acts arbitrarily
or unreasonably or without reference to any guiding rules or principles. Jelinek, 328
S.W.3d at 539; Rice, 554 S.W.3d at 200. When reviewing a matter committed to the
discretion of the trial court, a court of appeals may not substitute its judgment for
that of the trial court. See Bowie Mem’l Hosp, 79 S.W.3d at 52. Because the statute
focuses on what the report discusses, our review is constrained to the report’s four
corners. Palacios, 46 S.W.3d at 878.
B. Appellees’ Allegations
We start by clarifying the nature of appellees’ allegations, which in turn
informs our determination of the issues presented for our review. Health care
liability claims grounded on allegations that a claimant’s consent was not
informed—an informed consent claim—are governed by Texas Civil Practice and
Remedies Code sections 74.101-.107. See Schaub, 229 S.W.3d at 323. Under
section 74.101, in a suit against a physician based on the physician’s failure to
disclose or adequately disclose the risks and hazards of medical care or a surgical
procedure, the only theory on which recovery may be obtained is that of negligence
in failing to disclose risks or hazards that could have influenced a reasonable person
6
in making the decision to give or withhold consent. See Tex. Civ. Prac. & Rem.
Code § 74.101. In such a case, the plaintiff’s expert must analyze whether a
reasonable person could have been influenced to give or withhold consent by being
informed of the risks or hazards that were not disclosed and whether the injury
complained of was caused in fact by the undisclosed risk. See, e.g., Baylor Univ.
Med. Ctr. v. Biggs, 237 S.W.3d 909, 922-23 (Tex. App.—Dallas 2007, pet. denied).
Informed consent claims, however, differ materially from claims alleging that
a patient gave no consent at all for the treatment. See Schaub, 229 S.W.3d at 323-
24; McGraw-Wall, 2011 WL 1419608, at *1 n.5. “Performing a procedure without
a patient’s consent is not the same as performing it without her informed consent.”
Peters v. Byrne, No. 05-17-00004-CV, 2018 WL 1790059, at *2 (Tex. App.—Dallas
Apr. 16, 2018, pet. filed) (mem. op.) (citing Schaub, 229 S.W.3d at 324) (emphasis
in original). Health care liability claims based on an allegation that medical care or
a surgical procedure was performed without consent sound in medical battery or
negligence. Schaub, 229 S.W.3d at 324; Gravis v. Physicians & Surgeons Hosp.,
427 S.W.2d 310, 311 (Tex. 1968); Ranelle v. Beavers, No. 02-08-00437-CV, 2009
WL 1176445, at *3 (Tex. App.—Fort Worth Apr. 30, 2009, no pet.) (mem. op.).
For the most part, Dr. Arani characterizes this case as an informed consent
claim, and he devotes the majority of his appellate arguments to the ways in which
he contends Dr. Naina’s report fails the causation standard for informed consent
cases. Appellees dispute that point but also argue that their allegations include
medical battery claims, which are not governed by the informed consent line of
cases.5 We agree with appellees that their live pleading sufficiently pleads a claim
for medical battery because it includes allegations that Dr. Arani administered
5
Appellees raised this argument in response to Dr. Arani’s motion to dismiss in the trial
court.
7
Hydrea without Jackson’s consent.6 Additionally, Dr. Naina’s report contains
assertions supporting a medical battery claim. For example, as Dr. Naina stated,
medical notes indicated that neither Jackson nor her family were informed that
Jackson was diagnosed with and being treated for leukemia before Hydrea was
administered, and Jackson previously indicated that she did not consent to any
chemotherapeutic agents if she was diagnosed with cancer.7
Accordingly, we are not constrained to apply the informed consent standard
stated in Biggs and related cases. See McGraw-Wall, 2011 WL 1419608, at *1 n.5
(construing allegation as “one of no consent at all” and declining to apply informed
consent standard); Ranelle, 2009 WL 1176445, at *3-4 (analyzing expert’s causation
opinion as to medical battery claim). If appellees’ expert report is sufficient as to
the medical battery claim, then we can affirm the denial of Dr. Arani’s motion
without addressing the report’s sufficiency as to any other claims. See Baylor Coll.
of Med. v. Pokluda, 283 S.W.3d 110, 123 n.3 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
C. Dr. Naina’s Opinions as to Causation
In his third issue, Dr. Arani argues that Dr. Naina’s opinion that Jackson
would have refused to consent to administration of Hydrea under any circumstance
6
To be sure, appellees’ petition includes language reasonably construed as asserting an
informed consent theory, such as that Dr. Arani was “negligent in failing to disclose the risks or
hazards that could have influenced a reasonable person in making a decision to give or withhold
consent.” But we do not agree with Dr. Arani’s unstated assumption that appellees’ only pleaded
theory of liability is a lack of informed consent.
7
Dr. Arani disputes the consent issue. According to Dr. Arani, “[i]t is undisputed that Mrs.
Jackson signed a general consent form.” However, Dr. Arani provides no record citation for this
assertion, and we see no indication in the expert’s report that Jackson signed a general consent
form. The only affirmative consent mentioned in Dr. Naina’s report is a reference that Jackson
signed a “[c]onsent form for bone marrow biopsy.” We of course express no opinion on the truth
of either side’s position on consent; we are simply limited, in our sufficiency analysis of Dr.
Naina’s report, to the four corners of the report itself. Bowie Mem’l Hosp., 79 S.W.3d at 52.
8
“removes the claim from the ambit of informed consent and places it more accurately
in the realm of battery or negligence,” and, as to such a claim, Dr. Naina’s report is
“no report at all” because it does not “articulate negligence, battery, or some other
cognizable” health care liability claim. As discussed, we agree that appellees’ claim
is not predicated solely on a lack of informed consent but is at least partially
predicated on an allegation that Jackson never consented to receive Hydrea. But, as
also explained, we disagree with Dr. Arani that Dr. Naina’s report fails to address a
medical battery claim. See McGraw-Wall, 2011 WL 1419608, at *2-3. As to that
claim, we must consider the substance of Dr. Naina’s opinions and conclusions to
determine whether the report is sufficient on the challenged element of causation.
See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) (expert report must include, inter
alia, the causal relationship between the physician’s failure to meet the standard of
care and the injury, harm, or damages claimed). We address this issue first because
it is dispositive.
Although the plaintiff in a medical negligence case is not required to prove
proximate cause with her expert report, the report must show that the expert is of the
opinion she can do so regarding both foreseeability and cause-in-fact. See Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017); Rice,
554 S.W.3d at 201. The expert must explain the basis of his or her conclusions,
showing how and why a breach of the standard of care caused the injury and linking
his or her ultimate conclusions to the facts of the particular case. See Zamarripa,
526 S.W.3d at 460 (“the expert report must make a good-faith effort to explain,
factually, how proximate cause is going to be proven”); Jelinek, 328 S.W.3d at 539;
Bowie Mem’l Hosp., 79 S.W.3d at 52; Cornejo v. Hilgers, 446 S.W.3d 113, 123
(Tex. App.—Houston [1st Dist.] 2014, pet. denied). We determine whether an
expert report is sufficient under section 74.351 by considering the opinions in the
9
context of the entire report, rather than taking statements in isolation. See Van Ness
v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam).
A report may be sufficient if it states a chain of events that begin with a health
care provider’s negligence and end in a personal injury. See Patel v. Williams, 237
S.W.3d 901, 905-06 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see also Engh
v. Reardon, No. 01-09-00017-CV, 2010 WL 4484022, at *10 (Tex. App.—Houston
[1st Dist.] Nov. 10, 2010, no pet.) (mem. op.). In Patel, we held that the trial court
did not abuse its discretion in determining the report was not conclusory or
speculative concerning causation. Patel, 237 S.W.3d at 905-06.
Dr. Naina’s report states, in relevant part:
Dr. Arani ordered the administration of oral chemotherapy to [Jackson],
who did not give, and who refused to give, informed consent to oral
chemotherapy. Additionally, as a result of the nursing staff of Tomball
Hospital’s failure to confirm that informed consent had not been
obtained, the nursing staff of Tomball Hospital administered the initial
dosage of oral chemotherapy to Ms. Jackson.
Within reasonable medical probability, the first administration of
Hydrea destroyed Ms. Jackson’s white blood cells. Thereafter, the
release of cellular contents of the dying white blood cells into the blood
stream caused severe metabolic abnormalities known as tumor lysis
syndrome. Ms. Jackson’s dead white blood cells were then delivered
to her kidneys via the circulatory system, in order to be filtered out of
her body. However, due to the high amount of dead white blood cells
in her system, and the metabolic changes in her blood (tumor lysis
syndrome) which led to the release of potassium from the dead cells
leading to complete heart block and kidney failure.
Once Ms. Jackson’s kidneys shut down, her blood became overly acidic
which caused damage to her other internal organs, including her heart
and brain. As a result, her body shut down and Ms. Jackson died.
Had Dr. Arani properly attempted to obtain Ms. Jackson’s informed
consent to administer Hydrea while she was an in-patient at Tomball
Hospital, it is my opinion, based on my review of the records, that Ms.
Jackson would have refused to consent to the oral chemotherapy
10
treatment of Hydrea, as ordered by Arani and administered by the
nursing staff of Tomball Hospital, and would have been discharged
home, and, in reasonable medical probability, Ms. Jackson would not
have died on July 2, 2014.
Had Hydrea not been administered by the nursing staff of Tomball
Hospital, in the absence of informed consent, in reasonable medical
probability, Ms. Jackson would not have died on July 2, 2014.
The trial court could have reasonably found that Dr. Naina’s expert report
constituted a good-faith effort to comply with the statutory requirements,
specifically the challenged element of causation. Dr. Naina opines that the
administration of Hydrea destroyed Jackson’s white blood cells, which then
infiltrated her blood stream and kidneys, causing tumor lysis syndrome, heart block,
kidney failure, and Jackson’s ultimate death. Dr. Naina states that Jackson
previously declined consent to receive chemotherapeutic agents and, had Dr. Arani
properly attempted to obtain Jackson’s consent to administration of Hydrea, Jackson
would have refused to consent to the treatment, would have been discharged, and
would not have died on July 2, 2014. Thus, the challenged expert report informs Dr.
Arani of the specific conduct that appellees challenge (administering Hydrea without
Jackson’s consent) and provides sufficient information regarding the causal link
between Dr. Arani’s breach and Jackson’s injury to allow the trial court to
reasonably conclude that appellees’ claim has merit. See McGraw-Wall, 2011 WL
1419608, at *2-3; see also Scoresby, 346 S.W.3d at 553-54; Palacios, 46 S.W.3d at
879; Ranelle, 2009 WL 1176445, at *3-4 (holding expert report sufficient as to
causation in medical battery claim). We therefore hold that the trial court did not
abuse its discretion by denying Dr. Arani’s motion to dismiss.
We overrule Dr. Arani’s third issue.
D. Dr. Arani’s Remaining Issues
We have concluded that Dr. Naina’s expert report satisfies the TMLA’s
11
causation requirement, insofar as appellees’ health care liability claim is predicated
on Dr. Arani’s alleged failure to obtain consent before administering Hydrea to
Jackson. Therefore, dismissal of appellees’ suit against Dr. Arani is not warranted,
regardless whether Dr. Naina’s report is also sufficient with respect to any informed-
consent allegation. See Pokluda, 283 S.W.3d at 123 n.3. Thus, we need not address
Dr. Arani’s remaining arguments, which are premised on an application of the
informed-consent standard.8 See id.Conclusion
We overrule Dr. Arani’s third issue, and do not reach his first or second issue
on appeal. We affirm the trial court’s order denying Dr. Arani’s motion to dismiss.
/s/ Kevin Jewell
Justice
Panel consists of Justices Donovan, Wise, and Jewell.
8
In his first issue, Dr. Arani argues that that the threshold inquiry for an informed-consent
case is whether a reasonable person would have refused consent, not whether a reasonable person
could have been influenced to give or withhold consent upon disclosure of the pertinent risks, and
that Dr. Naina improperly utilized this latter standard. In his second issue, Dr. Arani argues that
Dr. Naina’s report did not adequately illustrate a causal relationship between a lack of informed
consent and Jackson’s death.
12