Diagnostic Research Group and John R. Holcomb, M.D. v. Sushma Vora , 473 S.W.3d 861 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-15-00029-CV
DIAGNOSTIC RESEARCH GROUP and John R. Holcomb, M.D.,
Appellants
v.
Sushma
Sushma VORA,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-00357
Honorable Larry Noll, Judge Presiding
Opinion by: Jason Pulliam, Justice
Concurring and Dissenting Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: August 19, 2015
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
This is an interlocutory appeal of the trial court’s denial of a motion to dismiss filed by
Appellants Diagnostic Research Group (DRG) and Dr. John Holcomb. DRG and Dr. Holcomb
contend the trial court abused its discretion in denying the motion to dismiss, finding the causes of
action asserted against DRG are not health care liability claims under the Texas Medical Liability
Act (TMLA). Further, DRG and Dr. Holcomb contend the trial court abused its discretion by
denying their challenges to the expert report of Plaintiff Sushma Vora’s (Vora) expert, Dr. Amy
Mulroy.
04-15-00029-CV
Based upon the particular record in this case, we affirm in part and reverse in part the trial
court’s order denying DRG and Dr. Holcomb’s motion to dismiss. We remand for further
proceedings consistent with this opinion.
BACKGROUND
This case arises from Vora’s participation in the pre-market study of a drug, linaclotide,
anticipated to treat irritable bowel syndrome. The drug study was conducted by DRG, with Dr.
Holcomb serving as the Principal Investigator. It is undisputed that during her participation in the
study, Vora experienced three severe adverse events, each resulting in hospitalization. After the
third event, Vora was removed from the pre-market drug study. Vora later suffered seizures and
strokes, which she alleges severely disabled her.
Vora filed suit against DRG and Dr. Holcomb asserting causes of action of negligence and
gross negligence. In her petition, Vora asserts DRG and Dr. Holcomb departed from accepted
standards of medical care “by conducting a study of a dangerous medication and allowing Ms.
Vora to receive linaclotide which had serious side effects ….” Vora asserts this conduct caused
preventable, permanent and debilitating injury.
Although Vora maintains her negligence claims do not fall within the ambit of the TMLA,
in the interest of caution, she timely served upon all defendants the expert report and curriculum
vitae of Dr. Amy Mulroy, as required by Section 74.351 of the TMLA. See TEX. CIV. PRAC. &
REM. CODE ANN. § 74.351(a)(West Supp. 2014). DRG and Dr. Holcomb timely objected to Dr.
Mulroy’s report based upon her lack of qualifications to serve as an expert on causation. DRG
and Dr. Holcomb also timely filed a motion to dismiss Vora’s negligence claims asserting the
causes of action are health care liability claims, and as such, Vora was required to timely serve an
expert report. Because Vora’s expert report did not meet the statutory requirements, DRG and Dr.
Holcomb contended the suit should be dismissed.
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Following a hearing on the motion to dismiss, the trial court overruled the objections to Dr.
Mulroy’s expert report and denied DRG and Dr. Holcomb’s motion to dismiss. In its denial of
their motion to dismiss, the trial court found Vora’s suit against Dr. Holcomb asserts health care
liability claims; however, Vora’s suit against DRG does not assert health care liability claims.
Also, the trial court found Dr. Mulroy’s expert report was “adequate as to Dr. Holcomb as it puts
him on notice of the claims asserted by Plaintiff.” DRG and Dr. Holcomb then perfected this
interlocutory appeal.
ANALYSIS
Issue One: Whether Vora’s causes of action asserted against DRG are “Health Care
Liability Claims”
DRG and Dr. Holcomb first contend Vora’s negligence causes of action asserted against
DRG are health care liability claims pursuant to the TMLA because DRG is a health care provider,
and the nature of her claims concern the care and treatment rendered to Vora during her
participation in the drug study. DRG and Dr. Holcomb assert DRG satisfies the statutory definition
of “health care provider” because DRG is an affiliate of a physician, Dr. Holcomb.
Standard of Review
Ordinarily, an appellate court reviews a trial court’s determination of a motion to dismiss
for failure to comply with Section 74.351 of the TMLA under an abuse of discretion standard. San
Antonio Extended Med. Care, Inc. v. Vasquez, 327 S.W.3d 193, 196-97 (Tex. App.—San Antonio
2010, no pet.). However, determination whether a petition asserts a health care liability claim
under the TMLA is a question of law, to which we apply a de novo standard of review. Id.; Inst.
for Women’s Health, P.L.L.C. v. Imad, No. 04–05–00555–CV, 2006 WL 334013, *1 (Tex. App.—
San Antonio 2006, no pet.) (mem. op.). “[W]hen making that determination courts should consider
the entire court record, including the pleadings, motions and responses, and relevant evidence
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properly admitted.” Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012). In construing a statute,
an appellate court must give it the effect the Legislature intended as found in the plain meaning of
the statute’s text. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 757-58 (Tex. 2014); Lopez v.
Osuna, 453 S.W.3d 60, 64 (Tex. App.—San Antonio 2014, no pet.).
Applicable Law
A “health care liability claim” is defined 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 ANN. § 74.001(a)(13) (West Supp. 2014). Following this statutory
definition, a health care liability claim under the TMLA has three elements: (1) the defendant is a
health care provider or physician; (2) the essence of the nature of the underlying claim concerns
treatment, lack of treatment or other departure from accepted standards of medical care, or health
care, or safety or professional or administrative services directly related to health care; and (3) the
defendant’s alleged act or omission was a proximate cause of the claimant’s alleged injury. 1
Loaisiga, 379 S.W.3d at 255. The party asserting application of the TMLA carries the burden to
show the causes of action asserted are health care liability claims. Bioderm Skin Care, 426 S.W.3d
at 758; Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.—San Antonio 2006, no pet.).
With regard to the first definitional element, a health care provider is “any person,
partnership, professional association, corporation, facility, or institution duly licensed, certified,
registered, or chartered by the State of Texas to provide health care.” TEX. CIV. PRAC. & REM.
1
The parties’ dispute in the trial court and on appeal focuses on the first two definitional elements. The parties do not
dispute the third element: causation. Therefore, the third element is not discussed.
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CODE ANN. § 74.001(a)(12)(A) (West Supp. 2014). The term includes an officer, director,
shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician.
See id. at § 74.001(a)(12)(B)(i).
Following the statutory definition, the crux of classification as a “health care provider” is
the initial requirement that the party be licensed or certified to provide health care. See id. at
§ 74.001(a)(12)(A). As the party asserting application of the TMLA, DRG had the burden to
present evidence to establish this licensure or certification. See Bioderm Skin Care, 426 S.W.3d
at 758; Brown v. Villegas, 202 S.W.3d at 806. DRG failed to provide any such evidence, however,
as the record is silent as to any licensure or certification to provide health care. Without this
evidence of licensure or certification, generally, a court cannot determine whether DRG satisfies
the statutory definition of “health care provider.” See e.g. Shiloh Treatment Ctr., Inc. v. Ward, No.
01-14-00626-CV, 2015 WL 1825757, at *4 (Tex. App.—Houston [1st Dist.] 2015, no pet.);
Doctors Data, Inc. v. Stemp, No. 03-12-00079-CV, 2014 WL 3809742, at *3 (Tex. App.—Austin
2014, pet. denied) (mem. op.); Brown v. Villegas, 202 S.W.3d at 806. However, in this factual
situation, the analysis need not end with this omission of important evidence because the statutory
definition of health care provider goes on to encompass any affiliate of a physician. See Bioderm
Skin Care, 426 S.W.3d at 758.
The TMLA defines a health care provider to include, inter alia, an affiliate of a physician.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(B)(i); Bioderm Skin Care, 426 S.W.3d
at 758. The TMLA then defines “affiliate” as “a person who, directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control with a specified
person, including any direct or indirect parent or subsidiary.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.001(a)(1). Further, the statute defines “control” as “the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of the person, whether
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through ownership of equity or securities, by contract, or otherwise.” Id. at § 74.001(a)(3).
Therefore, if DRG is an affiliate of Dr. Holcomb, then it is a health care provider under the first
element of the three-prong test to determine whether the claim against it is a health care liability
claim. Id. at §§ 74.001(a)(1), 74.001(a)(12)(B)(i); see Bioderm Skin Care, 426 S.W.3d at 758-59;
Doctors Data, Inc., 2014 WL 3809742, at *3.
DRG attached no evidence to its motion to dismiss and presented no evidence during the
hearing on the motion to dismiss.2 Due to this sparse record, the only facts upon which this court
may rely to make any determination regarding whether DRG is an affiliate of Dr. Holcomb are the
undisputed facts derived from Vora’s petition and the appellate briefs. As stated, no party disputes
that Dr. Holcomb is a physician duly licensed in Texas to practice medical care and is employed
by DRG. The trial court found Dr. Holcomb to be a physician and found Vora’s negligence claims
against Dr. Holcomb to be health care liability claims as defined by the TMLA. This holding is
not challenged on appeal, and therefore, will be accepted as a given fact. It is also undisputed that
Dr. Holcomb, as DRG’s employee, was the Principal Investigator of the subject drug study in
which Vora participated. Vora’s petition states DRG is a Texas Limited Liability Corporation and
may be served with process through its registered agent, Charles Andrews.
This limited record contains no evidence that Dr. Holcomb held any ownership of DRG or
exercised any control over DRG’s management and policies. The limited record contains no
evidence of Dr. Holcomb’s scope of employment or job description. The undisputed facts provide
no basis from which this court could determine whether DRG satisfies the statutory definition of
2
Although DRG and Dr. Holcomb attach evidence to their appellate brief, this evidence was not presented to the trial
court in its determination of the motion to dismiss and objections to Vora’s expert report. For this reason this court
may not consider the evidence. See e.g. Crutcher v. Dallas Indep. Sch. Dist., 410 S.W.3d 487, 492 (Tex. App.—
Dallas 2013, no pet.); Hendee v. Dewhurst, 228 S.W.3d 354, 376 (Tex. App.—Austin 2007, pet. denied) (citing
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)) (in summary judgment context).
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“affiliate” or “control” to determine whether DRG is an affiliate of Dr. Holcomb. TEX. CIV. PRAC.
& REM. CODE ANN. § 74.001(a)(3); but see Bioderm Skin Care, 426 S.W.3d at 758-59 (record
contained evidence Dr. Nguyen was the sole owner of the clinic, possessed power to direct its
management and policies and was responsible for its operations.).
Given the sparse record evidence, DRG has failed to show it “was duly licensed, certified,
registered, or chartered by the State of Texas to provide health care.” See Shiloh Treatment Ctr.,
Inc., 2015 WL 1825757, at *4; TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)(A). Further,
given the sparse record evidence, DRG has failed to show that DRG is an affiliate of a physician
to otherwise meet the statutory definition of health care provider. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.001(a)(12)(B)(i); Bioderm Skin Care, 426 S.W.3d at 758. Because there is no
evidence, based upon the limited undisputed facts before this court, this court cannot conclude
DRG is a health care provider as defined by the TMLA. Because DRG failed to show it is a health
care provider, it also cannot show Vora’s claims against it are health care liability claims. See
Loaisiga, 379 S.W.3d at 255. 3
Based upon this particular record, DRG’s first issue is overruled, and we affirm the trial
court’s order concluding Vora’s causes of action asserted against DRG are not health care liability
claims under the TMLA.
Issue Two: Dr. Mulroy’s Qualifications to Opine on the Issue of Causation
DRG and Dr. Holcomb 4 assert the trial court abused its discretion by denying their motion
to dismiss because Dr. Mulroy is not qualified to opine on causation. Without expert opinion on
3
Because we make this determination, the court will not reach the second prong of the analysis whether Vora’s
asserted causes of action are health care liability claims: the essence of the nature of the asserted claims.
4
DRG makes these assertions assuming this court concluded the claims asserted against it are health care liability
claims, and therefore, the suit against it falls within the purview of the TMLA. Because we do not conclude the claims
asserted against DRG are health care liability claims under the facts and evidence before the court, we address this
issue only as it applies to Dr. Holcomb.
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causation, Dr. Holcomb contends Vora fails to meet the requirements of the TMLA, and therefore,
her claims against him should be dismissed. Specifically, Dr. Holcomb argues Dr. Moyer’s report
fails to establish she is qualified to testify on the issue of the causal relationship between Dr.
Holcomb’s decision to prescribe linaclotide and the claimed side effects. Dr. Holcomb argues Dr.
Mulroy’s report does not “state that she has any experience or training regarding linaclotide or
gastrointestinal conditions” and fails to indicate whether Dr. Mulroy has any specific knowledge
or experience in assessing the causal relationship between the prolonged use of linaclotide and the
alleged side effects and injuries.
Standard of Review
We review a trial court’s determination with regard to an expert’s qualifications to assert
an opinion pursuant to 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). A trial court abuses its discretion if its
decision is arbitrary, unreasonable, and without reference to any guiding principles and rules.
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). Under this standard,
when reviewing factual matters committed to a trial court’s discretion, an appellate court may not
substitute its own judgment for the trial court’s judgment. Gray v. CHCA Bayshore L.P., 189
S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 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. Davisson v.
Nicholson, 310 S.W.3d 543, 548 (Tex. App.—Fort Worth 2010, no pet.). A trial court does not
abuse its discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
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Applicable Law
In determining whether the report constitutes a good faith effort to comply with the
statutory requirements, the trial court’s inquiry is limited to “the four corners” of the report.
Palacios, 46 S.W.3d at 878; Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758
(Tex. App.—Houston [14th Dist.] 2007, no pet.); Gray, 189 S.W.3d at 859. Thus, an expert’s
qualifications cannot be inferred, but must be present in the expert report and the curriculum vitae.
See Olveda v. Supulveda, 141 S.W.3d 679, 683 (Tex. App.—San Antonio 2004, pet. denied).
Should a plaintiff fail to establish the purported expert’s qualifications to submit the report, it is
deficient and does not comply with Section 74.351. Collini v. Pustejovsky, 280 S.W.3d 456, 464-
66 (Tex. App.—Fort Worth 2009, no pet.); see TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(l),
(r)(5)-(6) (West Supp. 2014).
A person is qualified to give opinion testimony concerning the causal relationship between
the alleged injury and the alleged departure from the applicable standard of care only if the person
is a physician and is otherwise qualified to render opinions on that causal relationship under the
Texas Rules of Evidence. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(r)(5)(C) (West Supp.
2014), 74.403(a) (West 2011). To be so qualified under the Texas Rules of Evidence, an expert
must have “knowledge, skill, experience, training, or education” regarding the specific issue before
the court. TEX. R. EVID. 702 (West 2014); Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996).
Sections 74.351 and 74.403(a) do not require that the physician serving as an expert be a
practitioner in the same medical specialty as the defendant. Accordingly, the proper inquiry
concerning whether a doctor is qualified to testify regarding causation is not the doctor’s area of
practice or expertise, but rather the doctor’s familiarity with the issues involved in the factual claim
before the court. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003); Collini, 280 S.W.3d
at 464; Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.). “A
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physician who is not of the same school of medicine may be competent [to testify as to causation]
if he has practical knowledge of what is usually and customarily done by a practitioner under
circumstances similar to those confronting the defendant.” Estorque v. Schafer, 302 S.W.3d 19,
26 (Tex. App.—Fort Worth 2009, no pet.); see also Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.
App.—Fort Worth 2004, pet. denied).
Analysis
Following these guidelines, to establish Dr. Mulroy’s qualifications to opine on causation,
Vora was required to demonstrate Dr. Mulroy’s knowledge, skill, experience, training, or
education that would qualify her to opine regarding the specific issues raised in Vora’s petition.
See Roberts, 111 S.W.3d at 120-21; Ehrlich, 144 S.W.3d at 625. Vora’s original petition states
Dr. Holcomb was “negligent in conducting a study of a dangerous medication and allowing Ms.
Vora to receive Linaclotide which had serious side effects including, but not limited to, bowel
obstructions, seizure and stroke.” Vora contends Dr. Holcomb’s acts and omissions caused her
asserted injuries.
Thus, the issues involved in the factual claim before the court are Dr. Holcomb’s conduct
in facilitating a drug study and Dr. Holcomb’s continued prescription of linaclotide to Vora after
she exhibited side-effect symptoms while participating in the study. Based upon the allegation in
the petition, the specialized branches of internal medicine or gastroenterology are not implicated
by Dr. Holcomb’s alleged negligence in conducting the drug study or continuing to prescribe
linaclotide, nor is experience with linaclotide or knowledge of its side effects implicated. Rather,
the factual issues raised in Vora’s petition pertain to a doctor’s standard of care in conducting a
study of an experimental drug and in continuing a person in a drug study after exhibition of
potential side effects. Thus, Vora must demonstrate Dr. Mulroy’s knowledge, skill, experience,
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training, or education in the field of conducting a drug study of an experimental drug and in
treatment of a participant should potential side-effect symptoms arise. 5
Dr. Mulroy’s curriculum vitae shows she has been a licensed physician in the State of
Texas since 1994 and has been board certified in psychiatry and neurology since 1998. Dr. Mulroy
is a practicing adult psychiatrist, and outside of her private practice, Dr. Mulroy served as a
Principle Investigator for at least 45 pre-market drug studies from 2003 to 2012. These pre-market
studies included “open label studies”, as in this case, as well as “double blind studies.” The
majority of these drug studies in which Dr. Mulroy served as the Principal Investigator involved
medication used primarily in the practice of psychiatry; however, many involved medication
relevant to other medical fields. Through this experience as a Principal Investigator, Dr. Mulroy
states she has an understanding of, and is qualified to testify to, the responsibilities and standards
required of a physician conducting a study of an experimental drug. Dr. Mulroy states these
responsibilities and standards in conducting a drug study are the same regardless of the condition
and/or symptoms the experimental medication is used to treat.
Based upon independent review of Dr. Mulroy’s curriculum vitae and expert report, we
conclude the trial court did not abuse its discretion in finding Dr. Mulroy’s credentials and
experience provide adequate qualifications to express an expert opinion on causation under these
facts. The relevant inquiry under these facts is whether Dr. Mulroy’s experience in conducting
pre-market drug studies provides sufficient familiarity with the presented issues whether Dr.
Holcomb acted pursuant to the standard of care in conducting the subject drug study and whether
5
Although Dr. Holcomb asserts the factual issues before the court are “the causal relationship between the prolonged
use of linaclotide and the alleged side effects and injuries”, this is a mischaracterization of the allegations in the
original petition against Dr. Holcomb. This characterization pertains to the strict product liability claim asserted
against the drug manufacturer. Dr. Holcomb also argues Dr. Mulroy’s report does not “state that she has any
experience or training regarding linaclotide or gastrointestinal conditions” and fails to indicate whether Dr. Mulroy
has any specific knowledge or experience in assessing the causal relationship between the prolonged use of linaclotide
and the alleged side effects and injuries; however, this is a mischaracterization of the required specialization.
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Vora’s continuation in the study after her hospitalizations caused her alleged injuries. Dr. Mulroy
exhibits extensive experience as a Principal Investigator in these numerous studies of experimental
medication, the same position held by Dr. Holcomb. Dr. Mulroy’s practice as a Principal
Investigator in a drug study provides sufficient knowledge, experience and training for the trial
court to conclude she possesses sufficient qualifications to opine on the causal link between Vora’s
alleged injuries and Dr. Holcomb’s alleged acts or omissions in allowing Vora to continue
participating in the drug study following two hospitalizations. Based upon this review of Dr.
Mulroys curriculum vitae and report, the trial court’s conclusion is not arbitrary, unreasonable,
and without reference to any guiding principles and rules.
For this reason, we conclude the trial court did not abuse its discretion in finding Dr.
Mulroy qualified to opine on causation, and thus, overruling Dr. Holcomb’s objections to Dr.
Mulroy’s expert report. Dr. Holcomb’s second issue is overruled, and the trial court’s order is
affirmed in part in this respect.
Issue Three: Sufficiency of Dr. Mulroy’s Expert Report on Causation
Dr. Holcomb argues the trial court abused its discretion in denying his motion to dismiss
because Dr. Mulroy’s expert report is merely conclusory on the issue of causation, and therefore,
does not constitute a good faith effort to comply with the statutory expert report requirement of
Section 74.351. Dr. Holcomb contends Dr. Mulroy’s report contains only a series of repetitious,
conclusory statements regarding causation and does not provide the necessary medical detail and
explanation of the causal relationship between Dr. Holcomb’s prescription of linaclotide and
Vora’s alleged injury.
Standard of Review
Again, we review a trial court’s denial of a motion to dismiss pertaining to an expert’s
report served pursuant to Section 74.351 for an abuse of discretion. See Palacios, 46 S.W.3d at
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875. A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without
reference to any guiding principles and rules. Bowie Mem’l Hosp., 79 S.W.3d at 52.
Applicable Law
Pursuant to Section 74.351, a plaintiff who brings a health care liability claim must serve
on the defendant an expert report that addresses standard of care, liability and causation no later
than the 120th day after the claim is filed. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6) (West Supp. 2014); HEB Grocery Co., L.L.P. v. Farenik, 243 S.W.3d 171, 173
(Tex. App.—San Antonio 2007, no pet.). If an expert report has not been served on a defendant
within the 120–day period, then on the motion of the affected defendant, the trial court must
dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Barber, 303 S.W.3d at 790-91. A report has not
been served under the statute if it is found to be deficient. Lewis v. Funderburk, 253 S.W.3d 204,
207-08 (Tex. 2008); Barber, 303 S.W.3d at 790-91. In such instance, the trial court has discretion
to grant one thirty-day extension to allow the plaintiff the opportunity to cure the deficiency. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); Barber, 303 S.W.3d at 790-91. If the deficiency
is not cured or cannot be cured, the case must be dismissed. Id. § 74.351(b)(2).
A report is deficient if it does not represent an objective good faith effort to comply with
the definition of an expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Barber, 303
S.W.3d at 791. 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Palacios, 46 S.W.3d at 878; Barber,
303 S.W.3d at 791. A report does not fulfill this requirement if it merely states the expert’s
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conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879; Barber,
303 S.W.3d at 790-91.
When reviewing the adequacy of a report, the only information relevant to the inquiry is
the information contained within the four corners of the document alone. Palacios, 46 S.W.3d at
878; Barber, 303 S.W.3d at 790-91. This requirement precludes a court from filling gaps in a
report by drawing inferences or guessing as to what the expert likely meant or intended. Barber,
303 S.W.3d at 790-91; see Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin
2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W.3d at 53).
Although the report need not marshal all of a plaintiff’s proof, it must do more than merely
state conclusions; rather, it must explain the basis for the expert’s causation opinions by linking
the expert’s conclusions to the relevant facts. Palacios, 46 S.W.3d at 878-79; Bogar v. Esparza,
257 S.W.3d 354, 364 (Tex. App.—Austin 2008, no pet.). Thus, to satisfy the statutory purpose
with regard to causation, an expert report must provide a fair summary of the expert’s opinions on
the causal relationship between a breach in the standard of care and the alleged harm with enough
specificity to allow the trial court to conclude the plaintiff’s claims have merit. Palacios, 46
S.W.3d at 878-79; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). The report must explain
how any breach in the standard of care caused the alleged injury. Jones v. King, 255 S.W.3d 156,
160 (Tex. App.—San Antonio 2008, no pet.).
Application
Dr. Mulroy states in her report that Dr. Holcomb “breached the standard of care and that
as a result of this breach Ms. Vora was hospitalized for a third time while participating in the study.
Ms. Vora’s third hospitalization and the pain and suffering related thereto would have been wholly
prevented if Dr. Holcomb … had withdrawn Ms. Vora from the study after her first two
hospitalizations ….” To reach this conclusion, Dr. Mulroy began by explaining the standard of
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care of a Principal Investigator of a drug study. The first responsibility is to monitor a participant
for “severe adverse events.” If one occurs, the second responsibility is to re-assess the safety of
the participant, the appropriateness of the participant’s continued involvement in the study and the
integrity of the study. Dr. Mulroy explained that upon the occurrence of more than one severe
adverse event, such as hospitalization, the Principal Investigator must “highly question the
appropriateness of that patient in the study” and “hospitalization for a potential side effect … is
enough to warrant a decision to remove the patient from the study.” Finally, Dr. Mulroy opines
that after the first hospitalization, Dr. Holcomb had a duty to closely monitor and communicate
with Vora; however, Dr. Holcomb failed to do so, and therefore, was not aware of Vora’s second
hospitalization. Dr. Mulroy opines, then, under the standard of care of a doctor conducting a drug
study, discovery of the second hospitalization would have required Dr. Holcomb to remove Vora
from the study. Because Dr. Holcomb did not discover the second hospitalization, and therefore,
did not remove Vora from the study, Dr. Mulroy opines Vora continued to ingest a drug that
presented dangerous side effects to her. Dr. Mulroy concludes that if Dr. Holcomb had removed
Vora from the study, she would not have continued this use of linaclotide. Based upon this
premise, Dr. Mulroy concluded “the proximate cause of the third hospitalization was the continued
use of linaclotide. The third hospitalization was for a distended abdomen and vomiting, which
was a known risk of the drug. Therefore, it was foreseeable that the continued use of the drug
could cause distended abdomen and vomiting. Ms. Vora had already been hospitalized twice for
similar injuries while taking the drug, making it foreseeable that continued use of the drug would
result in distended abdomen and vomiting.”
Upon review of Dr. Mulroy’s expert report, we conclude the report is conclusory with
regard to causation. Dr. Mulroy adequately explained the standard of care of a Principal
Investigator of an experimental drug study, explained how Dr. Holcomb breached the standard of
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care and explained how Dr. Holcomb should have acted under these facts. However, Dr. Mulroy
failed to provide sufficient facts to support her opinion that Dr. Holcomb’s failure to comply with
the standard of care, i.e. failing to monitor Vora closely after the first hospitalization and failing to
remove Vora from participation in the study following the second hospitalization, caused Vora’s
third hospitalization and other alleged resulting injuries. The report fails to set forth a specific link
between Dr. Holcomb’s alleged omissions with Vora’s alleged injuries and fails to discuss the
factual basis of her opinion that Vora’s continued ingestion of linaclotide caused Vora’s third
hospitalization. Particularly, Dr. Mulroy fails to state she reviewed Vora’s medical records
pertaining to her hospitalizations. Dr. Mulroy’s report does not provide a fair summary of her
opinions on the causal relationship between the asserted breach in the standard of care and the
alleged harm with enough specificity to allow the trial court to conclude Vora’s claims have merit
and to adequately inform Dr. Holcomb of the specific conduct that Vora calls into question. For
these reasons, Dr. Mulroy’s expert report is deficient.
Accordingly, we conclude the trial court abused its discretion by denying Dr. Holcomb’s
motion to dismiss based upon insufficiency of Dr. Mulroy’s expert report on the element of
causation. Dr. Holcomb’s third issue is sustained.
Although Dr. Holcomb contends the proper resolution is to render a judgment dismissing
Vora’s claims against him, the Texas Supreme Court has held that should a court of appeals
conclude an expert report is deficient in a manner that can be cured, Section 74.351 permits one
thirty-day extension to cure the specified deficiency. Leland v. Brandal, 257 S.W.3d 204, 207
(Tex. 2008); Collini, 280 S.W.3d at 468. Accordingly, the trial court should have an opportunity
to consider granting Vora an extension to cure the deficiencies detailed in this opinion.
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CONCLUSION
Based upon the foregoing reasons and based upon the limited appellate record, we affirm
in part and reverse in part the trial court’s order denying DRG and Dr. Holcomb’s motion to
dismiss. We remand for further proceedings consistent with this opinion.
Jason Pulliam, Justice
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