Dr. Timothy Mooring and BSA Hospital, LLC v. Teresa Britton, Individually and on Behalf of the Estate of John Britton ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00253-CV
DR. TIMOTHY MOORING AND BSA HOSPITAL, LLC, APPELLANTS
V.
TERESA BRITTON, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF JOHN BRITTON, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court No. 109,351-C-CV, Honorable Ana Estevez, Presiding
February 12, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Dr. Timothy Mooring and BSA Hospital, LLC, appeal the denial of their motions to
dismiss appellee Teresa Britton’s healthcare liability claims against them, based on
alleged deficiencies in Britton’s expert report. We reverse and remand.
Background
We present the background information as pled in Britton’s petition. Britton alleges
that on November 26, 2017, John Britton presented at the BSA Hospital Emergency
Department with pneumonia. On the morning of December 12, Dr. Mooring performed a
“28 French Right tube Thoracostomy” on John.1 According to Britton, Dr. Mooring cut an
artery during this procedure. That night, John’s symptoms worsened; he developed
tachycardia, hypotension, and intrathoracic bleeding, leading Dr. Mooring to drain 750
cubic centimeters of blood. Sadly, John’s condition deteriorated, and he died the
following day.
Britton filed this lawsuit on December 10, 2019, alleging that BSA and Dr. Mooring
were negligent in their treatment of John. Pursuant to the Texas Medical Liability Act
(“TMLA”), Britton served an expert report, authored by Dr. Venktesh R. Ramnath, on the
defendants on May 15, 2020. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West
2017).2 BSA and Dr. Mooring filed objections to the report, which the trial court sustained.
The trial court granted Britton a thirty-day extension to cure the report’s deficiencies, and
Britton served Dr. Ramnath’s revised report on July 24.3 BSA and Dr. Mooring again filed
objections and motions to dismiss the lawsuit on the basis that the revised report still did
1 We will refer to John Britton as “John” to avoid confusion with the appellee, Teresa Britton.
2The parties agreed to an extension of the deadline due to the State of Disaster in Texas caused
by the COVID-19 pandemic.
3 In this opinion, our discussion of Britton’s expert report refers to the revised report.
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not meet the requirements of the TMLA. Following a hearing, the trial court overruled
their objections and denied the motions. This interlocutory appeal followed.4
Standard of Review and Applicable Law
On appeal, BSA and Dr. Mooring argue that the trial court erred in denying their
motions to dismiss because the expert report (1) did not support Britton’s claim as set
forth in her pleadings, (2) did not state specific standards of care applicable to each
respective defendant, (3) contained only conclusory allegations of breach, and/or (4)
failed to explain how the alleged breaches caused John’s death. In addition, they seek
remand to the trial court for an award of attorney’s fees and costs.
Under the TMLA, healthcare liability claimants must serve an expert report upon
each defendant not later than 120 days after that defendant’s answer is filed. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a). An expert report is sufficient under the Act if it
provides a fair summary of the expert’s opinions regarding applicable standards of care,
the manner in which the care rendered failed to meet the standards, and the causal
relationship between the failure and the injury. Id. § 74.351(r)(6). A trial court need only
find that a report constitutes a “good faith effort” to comply with the Act’s requirements.
Id. § 74.351(l). An expert report demonstrates a “good faith effort” when it (1) informs the
defendant of the specific conduct called into question and (2) provides a basis for the trial
court to conclude the claims have merit. Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018) (per curiam). An expert report need not marshal all the claimant’s
4 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2020).
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proof, but a report is insufficient if it merely states the expert’s conclusions about the
standard of care, breach, and causation. Id. A court may not “fill gaps” in an expert report
by drawing inferences or guessing what the expert likely meant or intended. Patterson v.
Ortiz, 412 S.W.3d 833, 835-36 (Tex. App.—Dallas 2013, no pet.).
If a claimant fails to timely serve an adequate expert report, the defendant
physician or healthcare provider is entitled to dismissal of the claims against it. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(b). We review the denial of a motion to dismiss based
on the adequacy of an expert report for an abuse of discretion. Abshire, 563 S.W.3d at
223. We must determine whether the trial court acted arbitrarily and without reference to
any guiding rules or principles. Nexion Health at Duncanville, Inc. v. Ross, 374 S.W.3d
619, 622 (Tex. App.—Dallas 2012, pet. denied). We may not substitute our own judgment
for the trial court’s judgment, nor will we find the trial court abused its discretion merely
because we would have decided the matter differently. House v. Jones, 275 S.W.3d 926,
928 (Tex. App.—Dallas 2009, pet. denied).
Analysis
BSA and Dr. Mooring maintain that the expert report provided by Britton is deficient
in several ways. Because it is dispositive of this appeal, we address only their argument
that the report fails to satisfy the statute’s requirement as to causation.
Causation as to BSA
BSA and Dr. Mooring argue that the expert report is not sufficient as to BSA
because, among other things, its statement of causation is conclusory. Under the TMLA,
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regarding causation, an expert report must explain, to a reasonable degree of medical
probability, how and why the alleged negligence caused the complained-of injury. See
Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An expert must explain the basis of
his statements and link conclusions to specific facts; a conclusory statement of causation
is insufficient. Id. at 539. To satisfy the “how and why” requirements, the expert need not
prove the entire case or account for all the facts; a report is sufficient if it makes a good
faith effort to factually explain how proximate cause will be proven. Abshire, 563 S.W.3d
at 224.
As to BSA’s alleged breach, the report states, “BSA breached [the] standard of
care by not providing adequate pre-, intra-, or post-procedure monitoring such that
possible complications could not be recognized and intervened upon to prevent clinical
harm.” The report then addresses the issue of causation thus:
It is my opinion that the negligent and substandard medical care mentioned
above was more likely than not a proximate cause in Mr. Britton’s death as
follows: the placement of a large bore chest tube and removal of an existing
chest tube in a patient with active therapeutic anticoagulation (blood
thinning) incurred unnecessary risk of hemorrhage and exacerbation of
existing pneumothorax, the clinical consequences of which were not
recognized until they were irreversible. But for these factors he would not
have developed such a rapid clinical decline and death.
This statement sets out a chain of events that attempts to link (1) the placement of
a new chest tube and removal of an existing chest tube while on anticoagulants to (2) an
unnecessary risk of hemorrhage and exacerbation of pneumothorax to (3) John’s rapid
decline and death. This causation chain addresses only the alleged negligent conduct of
Dr. Mooring; it does not include a reference to BSA’s alleged breach, i.e., failure to provide
adequate monitoring. While the report asserts that the “clinical consequences” of the risk
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of hemorrhage and the exacerbation of pneumothorax “were not recognized until they
were irreversible,” there is no factual explanation as to how “adequate monitoring” would
have changed the outcome. For example, the report does not explain what medical
information would have been revealed by adequate monitoring, what medical intervention
could have been timely performed in light of such information, and how that intervention
would have prevented the ultimate injury. See, e.g., Abshire, 563 S.W.3d at 225-26
(report sufficient where expert opined that nursing staff failed to properly document
patient’s osteogenesis imperfect (OI) and back pain, which led to delay in diagnosis and
proper treatment (imaging of the patient’s back and a spinal fusion), which led to ultimate
injury of paraplegia); cf. Lovitt v. Colquitt, No. 05-18-00939-CV, 2019 Tex. App. LEXIS
5727, at *16-17 (Tex. App.—Dallas July 9, 2019, pet. denied) (mem. op.) (report
insufficient as to causation where expert did not explain what treatment patient should
have received if kept in hospital additional night or how such treatment would have
prevented patient’s fall or reduced risk of falling).
We conclude that the report fails to make a good faith effort to factually explain
how proximate cause will be proven as to BSA. Therefore, we sustain BSA and Dr.
Mooring’s complaint on appeal that the expert report is insufficient on this basis. We
reverse the trial court’s order denying appellants’ motion to dismiss Britton’s claims
against BSA.
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Causation as to Dr. Mooring
BSA and Dr. Mooring also argue that the expert report is not sufficient as to Dr.
Mooring because causation is stated in a conclusory fashion. As discussed above, the
report links the placement of a new chest tube and removal of an existing chest tube in a
patient on anticoagulants to an unnecessary risk of hemorrhage and exacerbation of
pneumothorax. John’s injury is said to be acute hemorrhagic shock that led to his death.
We therefore look within the four corners of Dr. Ramnath’s report to determine whether a
chain of events connects Dr. Mooring’s alleged breach of the standard of care to the fatal
hemorrhage.
The report states that Dr. Mooring breached the standard of care in three ways:
(1) “Failing to stop anticoagulants (blood thinner medications) prior to a semi-elective
invasive procedure,” (2) “Removal of original chest tube prior to placement of a new chest
tube for a worsening pneumothorax,” and (3) “Choosing a large bore chest tube rather
than a small bore chest tube for pneumothorax.” Nowhere in Dr. Ramnath’s report do we
find that any of these acts caused or worsened John’s bleeding. Although Britton alleged
in her petition that Dr. Mooring severed John’s artery when inserting the chest tube, that
theory is not articulated in the expert report. Instead, Dr. Ramnath opines that Dr.
Mooring’s acts and omissions “incurred unnecessary risk of hemorrhage and
exacerbation of existing pneumothorax, the clinical consequences of which were not
recognized until they were irreversible” (emphasis added). An increased risk of a
hemorrhage is not enough to show causation of a hemorrhage. See, e.g., IHS Cedars
Treatment Center of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004)
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(“cause in fact is not established where the defendant’s negligence does no more than
furnish a condition which makes the injuries possible”); Windsor v. Maxwell, 121 S.W.3d
42, 48 (Tex. App.—Fort Worth 2003, pet. denied) (no abuse of discretion in dismissing
case where expert report alleging “risk of vascular injury” failed to show causal connection
to patient’s intimal injury and complaint that catheter used was wrong size).
While Dr. Ramnath’s report mentions the presence of anticoagulant medications,
it does not link that fact to a conclusion that John’s bleeding was harmfully compounded
by the presence of those medications. Similarly, while the report questions Dr. Mooring’s
decision to insert a chest tube, it does not link that critique to an opinion that the insertion
or removal of a chest tube actually caused or worsened John’s bleeding. In sum, Dr.
Ramnath does not explain what particular action Dr. Mooring took, or what particular
action he failed to take, that led to John’s hemorrhage. This failure to opine as to the
cause and time of John’s hemorrhage renders the expert report fatally deficient. Without
an understanding of why and when the bleeding began, we cannot determine that John’s
hemorrhagic shock was more likely than not caused by a negligent act of or omission by
Dr. Mooring. See Jelinek, 328 S.W.3d at 536 (expert report must explain, to a reasonable
degree of medical probability, how and why the alleged negligence caused the injury).
Therefore, we conclude that the report fails to establish the necessary causal link
between the alleged failures to meet the standard of care and John’s injury. Accordingly,
we sustain BSA and Dr. Mooring’s complaint on appeal that the expert report is insufficient
on this basis. We reverse the trial court’s order denying appellants’ motion to dismiss
Britton’s claims against Dr. Mooring.
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Attorney’s Fees
In their final issue, BSA and Dr. Mooring seek a remand to the trial court for a
determination and award of their attorney’s fees and costs. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(b) (defendant is entitled to attorney’s fees and court costs if plaintiff
does not timely serve complying expert report). Because we have determined that the
expert report served by Britton does not comply with the TMLA’s requirements, we
remand the case for the trial court to assess an award of the reasonable attorney’s fees
and court costs incurred by BSA and Dr. Mooring. See Rivenes v. Holden, 257 S.W.3d
332, 341 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (where trial court fails to
consider matter, remand is appropriate to allow court to do so).
Conclusion
We reverse the trial court’s order denying the motion to dismiss Britton’s claims
against BSA and Dr. Mooring. We remand for a determination of attorney’s fees and
court costs incurred by appellants.
Judy C. Parker
Justice
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