Scott A. Protzman, M.D., El Paso Orthopaedic Surgery Group P.A., and Fred Utter, CRNA v. Maria T. Gurrola, Individually and on Behalf of All Wrongful Death Beneficiaries, and as Representative of the Estate of Oscar Gurrola , 510 S.W.3d 640 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SCOTT A. PROTZMAN, M.D., EL PASO §
ORTHOPAEDIC SURGERY GROUP,
P.A., AND FRED UTTER, CRNA, § No. 08-15-00281-CV
Appellants, § Appeal from the
v. § 448th District Court
MARIA T. GURROLA, INDIVIDUALLY § of El Paso County, Texas
AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES, § (TC# 2014-DCV-3560)
AND AS REPRESENTATIVE OF THE
ESTATE OF OSCAR GURROLA, §
DECEASED,
§
Appellee.
OPINION
This is a health care liability case subject to the Texas Medical Liability Act.
TEX.CIV.PRAC.&REM.CODE CH. 74 (West 2011). On November 9, 2012, Mr. Oscar Gurrola
underwent a non-surgical manipulation of his shoulder which was performed under anesthesia at
El Paso Specialty Hospital, was discharged, suffered cardiac arrest, and died. His wife, Maria
Gurrola, sued El Paso Specialty Hospital, Dr. Scott A. Protzman, El Paso Orthopaedic Surgery
Group (EPOSG), and Nurse Anesthetist Fred Utter, CRNA.1 Maria timely served Dr. Michael
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El Paso Specialty Hospital challenges the trial court’s ruling on the expert report as to the hospital in a separate
Koumjian’s expert reports on the defendants. The trial court heard the defendants’ objections to
the expert reports and denied their motion to dismiss Maria’s suit. TEX.CIV.PRAC.&REM.CODE
ANN. § 74.351(b)(West Supp. 2015).
In this interlocutory appeal, Appellants ask us to determine whether the trial court abused
its discretion when it overruled their objections and denied their motion to dismiss.
TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(9)(West Supp. 2015). Appellants assert the expert
reports were inadequate because: (1) Dr. Michael Koumjian failed to establish his qualifications
to opine on the standard of care, breach of that standard, and causation in support of Maria’s health
care liability claims relating to the death of her husband, Oscar; and (2) the expert reports fail to
satisfy the TMLA requirements regarding causation based on the conduct of Dr. Scott A. Protzman
and Nurse Utter, and as to the standard of care and breach of that standard in relation to the conduct
of Nurse Utter. TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(10).
We conclude the trial court did not abuse its discretion in denying the defendants’
objections and motion to dismiss Dr. Koumjian’s expert report regarding Dr. Protzman’s conduct,
and affirm the trial court’s ruling. However, Dr. Koumjian’s expert report regarding Nurse Utter
is inadequate to constitute an objective good faith effort to comply with TMLA’s statutory
requirements. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(l)(West Supp. 2015). We affirm in
part, reverse in part, and remand the case for further proceedings. TEX.R.APP.P. 43.2(a), (d).
BACKGROUND
The basis of Maria’s claim and the focus of Dr. Koumjian’s report involves Oscar’s
post-procedure tachycardia as well as the acts or omissions of the Hospital’s employees or agents
appeal. See El Paso Specialty Hospital, LTD v. Maria Gurrola, Individually and on Behalf of all Wrongful Death
Beneficiaries and as Representative of the Estate of Oscar Gurrola, Deceased, No. 08-15-00282-CV.
2
in relation thereto, specifically with regard to the failure to monitor, diagnose, care for and treat the
condition. Maria alleges that while Oscar was under the care of the defendants, he developed
symptoms of congestive heart failure but was discharged home where he suffered a cardiac arrest,
was cared for by emergency personnel, and transported to another medical facility where he was
pronounced dead. An autopsy revealed that Oscar died from severe coronary atherosclerosis.
DISCUSSION
Standard of Review
We review the trial court’s ruling to determine whether it abused its discretion in ruling on
the adequacy of the expert report. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877 (Tex. 2001); Tenet Hospitals Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App.--El
Paso 2009, pet. denied). Under an abuse of discretion standard, the appellate court defers to the
trial court’s factual determinations if they are supported by evidence, but reviews the trial court’s
legal determinations de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.
2011)(citing In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)). A trial court
abuses its discretion if it rules without reference to guiding rules or principles. Samlowski v.
Wooten, 332 S.W.3d 404, 410 (Tex. 2011).
I. Expert Qualifications
Appellants present their complaints in four issues. In Issues One and Two respectively,
Appellants challenge Dr. Koumjian’s qualifications to render expert opinions on the standards of
care and breach of applicable standards, and his qualifications to opine regarding the causal nexus
between the alleged negligence and Oscar’s death. We first address Issue Two.
To opine on whether a physician departed from accepted standards of medical care for
physicians, an expert must be a physician who:
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(1) is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of medical care.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(a)(West 2011); TEX.CIV.PRAC.&REM.CODE
ANN. § 74.351(r)(5)(A). To opine on whether a health care provider other than a
physician departed from accepted standards of health care, an expert must be a person who:
(1) is practicing health care in a field of practice that involves the same type of
care or treatment as that delivered by the defendant health care provider, if
the defendant health care provider is an individual, at the time the testimony
is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for
the diagnosis, care, or treatment of the illness, injury, or condition involved
in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of health care.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(b); TEX.CIV.PRAC.&REM.CODE ANN.
§ 74.351(r)(5)(A). To opine on causation in any healthcare liability claim, an expert must
be a physician who is otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5)(C).
An expert report or its required accompanying curriculum vitae must show that the expert
is qualified to opine on the subject matter at issue. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a);
In re McAllen Med. Center, Inc., 275 S.W.3d 458, 463 (Tex. 2008). The medical expert need not
practice in the same specialty as the defendant in order to qualify as an expert. Roberts v.
Williamson, 111 S.W.3d 113, 122 (Tex. 2003). However, not every licensed physician is always
4
qualified to testify on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex.
1996).
To determine whether an expert report is sufficient to demonstrate the qualifications of the
expert to opine, the trial court should focus on the medical expert’s “knowledge, skill, experience,
training, or education” concerning the specific issue before the court which would qualify the
expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153-54 (applying
Texas Rule of Evidence 702); see also Tenet Hospitals, Ltd. v. Garcia, 462 S.W.3d 299, 306
(Tex.App.--El Paso 2015, no pet.)(application of rules of evidence in assessing expert’s
qualifications to opine on causation as set forth in Section 74.351(r)(5)(C) pertains only to expert’s
qualifications and does not extend to expert’s opinion). The focus of the trial court should not be
on the specialty of the medical expert. Roberts, 111 S.W.3d at 122. A medical expert from one
specialty may be qualified to testify if he has practical knowledge of what is traditionally done by
medical experts of a different specialty under circumstances similar to those at issue in the case.
Pediatrix Med. Services Inc. v. De La O, 368 S.W.3d 34, 40 (Tex.App.--El Paso 2012, no pet.). If
the subject matter is common to and equally recognized and developed in all fields of practice, any
practitioner familiar with the subject may testify as to the standard of care. Id. at 40. The trial
court must ascertain that the expert does indeed possess the expertise on the subject for which he is
giving an expert opinion. Palafox v. Silvey, 247 S.W.3d 310, 316 (Tex.App.--El Paso 2007, no
pet.). The proffered medical expert’s qualifications must be evident from the four corners of his
expert report and curriculum vitae. See Palacios, 46 S.W.3d at 878. We cannot infer causation
either by filling in missing gaps or by guessing what an expert likely meant or intended. Tenet
Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 171 (Tex.App.--El Paso 2015, no pet.); Tenet Hosps, Ltd.
5
v. Garcia, 462 S.W.3d 299, 310 (Tex.App.--El Paso 2015, no pet.)(citing Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002)).
The basis of Maria’s claim and the focus of Dr. Koumjian’s report involves Oscar’s
post-procedure tachycardia as well as the acts or omissions of Dr. Protzman and Nurse Utter in
relation thereto, specifically with regard to the failure to diagnose, care for and treat the condition.
Maria alleges that while Oscar was under the care of the defendants, he developed symptoms of
congestive heart failure but was discharged home where he suffered a cardiac arrest, was
transported to another medical facility, and was pronounced dead. An autopsy revealed that
Oscar had died from severe coronary atherosclerosis.
1. Qualifications to Opine on Standards of Care and Breach
In Issue Two, Appellants complain Dr. Koumjian is not qualified to render expert opinions
regarding the standard of care or the breach of that standard by Dr. Protzman or Nurse Utter. As
to Protzman, Appellants contend that Dr. Koumjian has failed to demonstrate “how or why” he is
familiar with the standard of care, and assert that his failure to specify standards for post-procedure
care renders his report too ambiguous, vague, and overbroad to render him qualified to opine as to
the standards applicable to Dr. Protzman or Nurse Utter. They also complain that Dr. Koumjian
fails to explain how or why Dr. Protzman should have been aware of the severe nature of Oscar’s
cardiovascular disease or should have acted differently.
Appellants argue that Dr. Koumjian has not shown that he is qualified to opine on the
standard of care and breach of the standard that is applicable to Nurse Utter because he fails to
show that he is practicing health care in a field of practice that involves the same type of care or
treatment as that delivered by Nurse Utter, providing anesthesia, or was practicing that type of
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health care at the time Maria’s claim arose, or has knowledge of the accepted standards of care for
health care providers for the diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim.
We disagree with these assertions. In her petition, Maria asserts that: (1) Appellants
knew or should have known that Oscar was at risk for “developing a cardiac arrest because of
severe coronary disease;” (2) while Oscar was at the hospital, the standard of care included proper
assessment and treatment to prevent a patient like Oscar from “developing a cardiac arrest because
of severs coronary artery disease;” (3) Appellants violated the standard of care by failing to
provide proper assessment and treatment to prevent Oscar’s cardiac arrest and death; and (4) at all
relevant times, the Hospital and EPOSG acted by and through its employees and agents and are
vicariously liable for their negligent acts and omissions. 2 There is no question that Maria’s
complaint addresses Oscar’s status as an at-risk cardiac patient, and challenges the Hospital’s
compliance with the proper standard of care to be provided him as an at-risk cardiac patient.
Therefore, pursuant to Section 74.351(r)(5)(B), Dr. Koumjian must establish that he is qualified
under the requirements of Sections 74.401 and 74.402 to testify as an expert witness on the issue of
whether the physician and defendant health care provider departed from those applicable accepted
standards of care. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5)(B); TEX.CIV.PRAC.&
REM.CODE ANN. §§ 74.401, 74.402.
2
We analyze the sufficiency of the expert report only with respect to the actions of EPOSG’s employees and agents in
Maria’s vicarious liability claim. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 626 (Tex. 2013)(defendant did
not challenge adequacy of expert report as to its vicarious liability); TTHR Ltd. Partnership v. Moreno, 401 S.W.3d
41, 45 (Tex. 2013)(expert report is analyzed as to physician’s actions, and plaintiff’s claims that hospital was
vicariously liable for the physician’s actions may proceed if expert report regarding physician’s actions adequately
address the standard of care, breach, and causation as to physician); see also Tenet Hosp. Ltd. v. Bernal, 482 S.W.3d
165, 174 (Tex.App.--El Paso 2015, no pet.)(expert must consider both the pleadings and the medical record in
formulating opinion, but is not required to address hospital’s vicarious liability for physician’s acts or omissions in
order for expert’s report to be adequate)(citing Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012)).
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Applicable Law
In a suit involving a health care liability claim against a physician for injury to or death of a
patient, a person may qualify as an expert witness on the issue of whether the physician departed
from accepted standards of medical care only if the person is a physician who:
(1) is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of medical care.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(a). For the purpose of this section, “practicing
medicine” or “medical practice” includes, but is not limited to, training residents or students at an
accredited school of medicine or osteopathy or serving as a consulting physician to other
physicians who provide direct patient care, upon the request of such other physicians.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(b). In determining whether a witness is qualified on
the basis of training or experience, the court shall consider whether, at the time the claim arose or
at the time the testimony is given, the witness: (1) is board certified or has other substantial
training or experience in an area of medical practice relevant to the claim; and (2) is actively
practicing medicine in rendering medical care services relevant to the claim.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(c)(1), (2). The court shall apply the criteria specified
in Subsections (a), (b), and (c) in determining whether an expert is qualified to offer expert
testimony on the issue of whether the physician departed from accepted standards of medical care,
but may depart from those criteria if, under the circumstances, the court determines that there is a
good reason to admit the expert’s testimony. TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(d).
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In a suit involving a health care liability claim against a health care provider, a person may
qualify as an expert witness on the issue of whether the health care provider departed from
accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care
or treatment as that delivered by the defendant health care provider, if the defendant
health care provider is an individual, at the time the testimony is given or was
practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the
diagnosis, care, or treatment of the illness, injury, or condition involved in the
claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion
regarding those accepted standards of health care. [Emphasis added].
TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(b). “Practicing health care” includes: (1) training
health care providers in the same field as the defendant health care provider at an accredited
educational institution; or (2) serving as a consulting health care provider and being licensed,
certified, or registered in the same field as the defendant health care provider.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(a).
In determining whether a witness is qualified on the basis of training or experience, the
court shall consider whether, at the time the claim arose or at the time the testimony is given, the
witness: (1) is certified by a licensing agency of one or more states of the United States or a
national professional certifying agency, or has other substantial training or experience, in the area
of health care relevant to the claim; and (2) is actively practicing health care in rendering health
care services relevant to the claim. TEX.CIV.PRAC.&REM.CODE ANN. § 74.402(c). In
determining whether an expert is qualified to offer expert testimony on the issue of whether the
defendant health care provider departed from accepted standards of medical care, the court shall
9
apply the criteria specified in Subsections (a), (b), and (c) but may depart from those criteria if,
under the circumstances, the court determines that there is a good reason to admit the expert’s
testimony. TEX.CIV.PRAC.&REM.CODE ANN. § 74.401(d). If it departs from the specified
criteria, the court shall state on the record its reason for admitting the testimony. Id.
Analysis
Maria filed Dr. Koumjian’s expert reports regarding Dr. Protzman and Nurse Utter on
March 23, 2015, and April 6, 2015, respectively. In each, Dr. Koumjian’s curriculum vitae
indicates that he has been licensed to practice medicine since 1978, is currently the Chief of
Surgery at Sharp Grossmont Hospital, has appointments as attending staff, consulting staff,
provisional staff, or transitional staff in cardiothoracic surgery at seven hospital facilities, is board
certified in Thoracic Surgery, and also conducts a private practice in cardiovascular and thoracic
surgery. Thus, he was licensed and practicing medicine as a cardiovascular and thoracic surgeon
and as Chief of Surgery at the time of his expert report and at the time Maria’s claim arose. He
has previously served as Chief of the Cardio-Thoracic Section of Scripps Mercy Hospital, and has
served as a District Counselor for the American College of Cardiologists. Dr. Koumjian has
completed residencies in general surgery and cardiothoracic surgery, as well as fellowships
involving cardiac surgery, cardiac transplantation, and cardiac “valve.” He has lectured on the
intra-operative use of inotropic agents during and immediately post-cardiopulmonary bypass, and
has served as an assistant clinical professor of surgery for the University of California at San
Diego’s Department of Cardiac Surgery.
In his expert reports, Dr. Koumjian states that his medical practice involves the diagnosis
and treatment of coronary artery disease under the same or similar circumstances here, and that he
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is familiar with the standard of care concerning the evaluation of both the risk and prevention of
death caused by severe coronary atherosclerosis under the same or similar circumstances in this
case. He is familiar with the evaluation, consultation, diagnosis, and treatment of patients who
are at risk for death caused by atherosclerosis, and notes that the standard of care for identifying
the risks and symptoms of severe coronary artery disease and obtaining cardiology consultation
under the same or similar circumstances in this case applies to all physicians, including
orthopaedic surgeons, and to nurse anesthetists. Dr. Koumjian works closely with nurses who
evaluate patients who are at risk and have symptoms associated with severe coronary artery
disease under the same or similar circumstances in this instance, and is familiar with the nursing
standard of care for reporting to physicians the symptoms associated with coronary artery disease,
the diagnosis, care, or treatment of which is involved in Maria’s claim.
In his expert report, Dr. Koumjian notes that a cardiologist had determined ten days before
Oscar’s shoulder-manipulation procedure that although surgery was not contraindicated, Oscar
would need to be closely monitored due to his history of coronary artery disease. Oscar was at
risk of death due to severe coronary artery disease, and Dr. Koumjian states that Appellants knew
or should have known this as Oscar had a diagnosis of atherosclerotic disease, coronary artery
stents, uncontrolled diabetes, and hypertension, which are factors for tachycardia. Without
prompt diagnosis and treatment, tachycardia can lead to cardiac arrest. Dr. Koumjian claims
Appellants failed to properly diagnose and treat the signs and symptoms which Oscar presented
post-procedure. These symptoms included elevated blood pressure, elevated heart rate, pain, and
dizziness. He asserts that the applicable standard of care required the performance of a “STAT
cardiac workup.” This workup would have shown Oscar’s tachycardia and would have required
11
immediate treatment such as defibrillation, intubation, and mechanical ventilation. These
treatments, more likely than not, would have prevented Oscar’s cardiac arrest and death.
According to Dr. Koumjian, in addition to the standard of care applicable to both
physicians and healthcare providers, the standard of care further required that Dr. Protzman as a
physician both closely monitor Oscar because of his high risk for cardiac arrest due to coronary
artery disease, and provide orders to staff to carefully monitor Oscar for any signs or symptoms
related to heart failure, such as a significant change in blood pressure, tachycardia, or dizziness,
and to notify him immediately if they occurred. Instead, Dr. Protzman failed to closely monitor
Oscar, and failed to provide orders to staff to carefully monitor Oscar for signs or symptoms of
heart failure such as changes in blood pressure, tachycardia, or dizziness. This breach of the
standard resulted in a failure to diagnose and treat Oscar’s ventricular tachycardia before he was
discharged from El Paso Specialty Hospital. Oscar experienced a significant change of blood
pressure, tachycardia, and dizziness while at the hospital but was sent home where he died that
same day. According to Dr. Koumjian, had the standard of care been followed, the hospital’s
nursing staff would have notified Dr. Protzman or a physician, Oscar more likely than not would
have been diagnosed with tachycardia and treated, and with such diagnosis and treatment, Oscar’s
ventricular tachycardia would have resolved and his cardiac arrest and death would have been
prevented.
We do not find Dr. Koumjian’s recitations regarding his experience, training, knowledge,
or familiarity with the diagnosis, care, or treatment of the condition, injury, or harm in this case to
be vague, overbroad, or permitting of impermissible inferences as Appellants suggest.
Dr. Koumjian’s qualifications to opine on the standards of care and breach of those standards
12
regarding Maria’s claims in this case are evident from the four corners of his expert report and
curriculum vitae. See Palacios, 46 S.W.3d at 878. Consequently, we conclude the trial court did
not abuse its discretion in concluding that Dr. Koumjian is qualified to opine on the standard of
care and breach thereof as it applies to Dr. Protzman as a physician and to Nurse Utter as a health
care provider. Issue Two is overruled.
2. Qualifications to Opine on Causation
In Issue One, Appellants argue Dr. Koumjian has failed to explain his qualifications and
has therefore not demonstrated that he is qualified to render an expert opinion on causation. They
label as insufficient Dr. Koumjian’s assertion that his practice of medicine “involves the diagnosis
and treatment of coronary artery disease, under the same or similar circumstances as in this case.”
They specifically complain that Dr. Koumjian provides no insight regarding how his practice
involves matters confronted by either Dr. Protzman or Nurse Utter, fails to address whether he
treats patients like Oscar or is familiar with the issues presented in Maria’s claim, and fails to assert
that he is familiar with the consequences of the purported breaches of the standards of care.
Although acknowledging that Dr. Koumjian may be qualified to opine on causation, Appellants
assert his expert reports contain insufficient information, such as an explanation of his familiarity
with the non-surgical interventions that he claims were required and could have prevented Oscar’s
death.
To opine on causation in any healthcare liability claim, an expert must be a physician who
is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(5)(C); TEX.CIV.PRAC.&REM.CODE
ANN. § 74.401(a). Rule of Evidence 702 provides that a witness who is qualified as an expert by
13
knowledge, skill, experience, training, or education may testify in the form of an opinion if the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or determine a fact issue. See TEX.R.EVID. 702. Section
74.351(r)(5)(C) incorporates the rules of evidence in the context of the expert’s qualifications, not
the substance of the opinion itself. Garcia, 462 S.W.3d at 306. Consequently, Rule 702’s
requirement that the witness must be qualified by “knowledge, skill, experience, training, or
education” applies here. Id.
That an expert is qualified to opine on the subject matter at issue may be shown in the
expert’s report or its required accompanying curriculum vitae. TEX.CIV.PRAC.&REM.CODE ANN.
§ 74.351(a); In re McAllen Med. Center, 275 S.W.3d at 463. We have examined Dr. Koumjian’s
report and curriculum vitae, and find that he has adequately shown that he is qualified by
knowledge, skill, experience, training, or education to opine on causation on the matter at issue.
To the extent we have addressed Dr. Koumjian’s qualifications by knowledge, skill,
experience, training, or education as presented within the four corners of his expert reports, we
need not repeat them here. However, in addition to stating that his “practice of medicine involves
the diagnosis and treatment of coronary artery disease, under the same or similar circumstances as
in this case,” Dr. Koumjian also notes his familiarity with the standard of care for the prevention of
death under the same or similar circumstances as those of Oscar.
Dr. Koumjian’s qualifications to opine on the standards of care, breach of those standards,
and causation arising from such breach with regard to the claims in this case are evident within the
four corners of his expert report and curriculum vitae. See Palacios, 46 S.W.3d at 878.
Consequently, because Dr. Koumjian’s expert report shows that he is a physician having
14
knowledge and experience concerning the subject of his opinion, we conclude the trial court did
not abuse its discretion in determining that Dr. Koumjian was qualified to offer an opinion on the
cause of Oscar’s cardiac arrest and death. Issue One is overruled.
II. Sufficiency of Expert Reports
In Issues Three and Four respectively, Appellants complain the trial court abused its
discretion in overruling their objections to the adequacy of Dr. Koumjian’s expert reports and in
failing to dismiss Maria’s suit. Issue Three complains that Dr. Koumjian’s expert report fails to
provide a non-conclusory, factually-supported explanation of the causal link between
Dr. Protzman and Nurse Utter’s alleged negligence and Oscar’s death. Issue Four asserts that
Dr. Koumjian’s expert report fails to establish the standard of care applicable to Nurse Utter, and
Nurse Utter’s breach of that standard of care.
Applicable Law
A plaintiff asserting a health care liability claim must serve each defendant with an expert
report that includes “a fair summary of the expert’s opinions . . . 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 damage
claimed.” TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(6); Van Ness v. ETMC First Physicians,
461 S.W.3d 140, 141 (Tex. 2015); Bustillos v. Rowley, 225 S.W.3d 122, 130 (Tex.App.--El Paso
2005, pet. denied)(expert report need not include full statement of applicable standard of care and
how it was breached; fair summary must set out what care was expected, but not given)(citing Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001)). A challenge
to the sufficiency of a report must be sustained if the report does not represent an objective good
15
faith effort to comply with the statutory requirements. TEX.CIV.PRAC.&REM.CODE ANN.
§ 74.351(l); Van Ness, 461 S.W.3d at 141. A report is a good faith effort if it provides adequate
information to inform the defendant of the specific conduct the plaintiff has called into question,
provides a basis for the trial court to conclude that the claims have merit, and does not contain a
material deficiency. Van Ness, 461 S.W.3d at 141-42.
The evidence in the expert report need not be the same evidence as if the merits of the claim
are being litigated. Palacios, 46 S.W.3d at 879; Tenet Hosps. Ltd. v. Barajas, 451 S.W.3d 535,
540 (Tex.App.--El Paso 2014, no pet.). Rather, the expert’s report can be informal and the
information contained therein “does not have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879; Barajas, 451
S.W.3d at 540. However, an expert must explain, based on facts set out in the report, how and
why the breach caused the injury. Van Ness, 461 S.W.3d at 142, citing Jelinek v. Casas, 328
S.W.3d 526, 539-40 (Tex. 2010). A bare expert opinion that the breach caused the injury will not
suffice. Van Ness, 461 S.W.3d at 142.
Analysis
Dr. Koumjian set out the following facts in his report as those on which he based his
opinions. Oscar’s cardiologist, Dr. Gregorio J. Castillo, examined him on October 29, 2012.
Dr. Castillo noted that Oscar was scheduled for surgery the following week, that his blood sugars
were elevated after increasing the dose of medication, that his blood pressure was 110/70, and his
pulse was 63. Although Oscar had no symptoms of dizziness or syncope, Dr. Castillo observed
that Oscar had uncontrolled diabetes and atherosclerotic cardiovascular disease. He noted that
Oscar did not have a medical contraindication for surgery under general anesthesia for treatment of
16
his right shoulder adhesive capsulitis, but indicated that Oscar would require close monitoring
because of his history of coronary artery disease.
On November 9, 2012, Oscar went to El Paso Specialty Hospital for a right shoulder
therapeutic manipulation under general anesthesia and an injection of anesthetic, steroid, and
arthrogram. Dr. Scott Protzman, an orthopaedic surgeon, and Nurse Anesthetist Fred Utter
performed the orthopaedic procedure. Oscar’s pre-anesthesia blood pressure was 128/90, and his
heart rate was 84. The anesthesia was started at 9:05 a.m., and the procedure was commenced at
9:21 a.m. The procedure ended at 9:30 a.m., and Oscar was in the recovery room at 9:42 a.m. At
that time, his heart rate was 82, and his respirations were 18. Anesthesia was ended eight minutes
later at 9:50 a.m.
In the recovery room, Oscar complained of increasing pain. He subsequently underwent a
block for post-operative pain, with anesthesia commending at 11:20 a.m. and ending at 11:45 a.m.
Dr. Koumjian’s expert report does not identify the person who administered this anesthesia to
Oscar. In the recovery room, Oscar’s blood pressure was 163/91, and his heart rate had increased
to 91. Oscar told the recovery room nurse that he was feeling dizzy and very sleepy. The nurse
informed Oscar that his symptoms were normal, and noted to Oscar and Maria that although
Oscar’s blood pressure was high, that was normal as well. The unidentified recovery room nurse
did not notify a physician about Oscar’s reported symptoms, and at approximately 12:50 p.m., “the
nurse” instructed Oscar and Maria to return home.
As instructed, Oscar and Maria returned home. Maria assisted Oscar out of their car and
into their home, and at approximately 2 p.m., Maria left to run errands. When Maria returned
home, she found Oscar unresponsive and called 9-1-1. Emergency medical services arrived at
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4:30 p.m., initiated cardio-pulmonary resuscitation on Oscar, and transported him to a hospital,
arriving there at 4:47 p.m. Cardio-pulmonary resuscitation was discontinued at 4:59 p.m., and
Oscar was pronounced dead. An autopsy report shows Oscar died from severe coronary
atherosclerosis, and the certificate of death identifies Oscar’s immediate cause of death was severe
coronary artery disease.
B. Expert Reports on Causation
In Issue Three, Appellants complain that Dr. Koumjian fails to provide a factual
underpinning for his causation conclusions, and fails to explain how or why Oscar’s ventricular
tachycardia led to his fatal cardiac arrest, fails to discuss any connection between the ventricular
tachycardia and the severe coronary atherosclerosis found after autopsy, or how immediate
treatment consisting of defibrillation, intubation, and mechanical ventilation would have
prevented the fatal cardiac arrest “hours later.”
In his five-page expert reports, Dr. Koumjian notes that Oscar’s post-procedure heart rate,
elevated blood pressure, and dizziness are signs and symptoms of ventricular tachycardia. He
states that untreated ventricular tachycardia can lead to cardiac arrest. There is no evidence noted
in the expert report that the recovery room nurse or any nurse ever notified Dr. Protzman or any
physician about Oscar’s tachycardia signs and symptoms. Rather, the recovery nurse informed
Oscar and Maria that Oscar’s symptoms were normal and instructed them to return home.
Dr. Koumjian explains that Dr. Protzman breached the standard of care by failing to
closely monitor Oscar, by failing to provide orders that staff carefully monitor Oscar for any signs
and symptoms of heart failure such as a significant change in blood pressure, tachycardia, or
dizziness, and to notify him or a doctor of such signs and symptoms. This breach of the standard
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of care resulted in the failure to diagnose and treat Oscar’s ventricular tachycardia before he was
discharged and sent home. Oscar experienced a significant change of blood pressure,
tachycardia, and dizziness post-procedure while at the hospital. Had the standard of care been
followed, the hospital’s nursing staff would have notified Dr. Protzman or a physician, and Oscar
more likely than not would have been diagnosed with ventricular tachycardia and immediately
treated with defibrillation, intubation, and mechanical ventilation. More likely than not, this
diagnosis and treatment would have prevented Oscar’s cardiac arrest and death.
In his report regarding Nurse Utter, Dr. Koumjian explains that Nurse Utter breached the
standard of care by failing to carefully monitor Oscar for any signs and symptoms of heart failure
such as a significant change in blood pressure, tachycardia, and dizziness. He opines that had
Nurse Utter followed the standard of care, he would have assessed Oscar, found that Oscar had a
significant change of blood pressure, tachycardia, and dizziness, and would have reported these
findings to a physician. According to Dr. Koumjian, Nurse Utter’s breach of the standard of care
resulted in a failure to diagnose and treat Oscar’s ventricular tachycardia before he was discharged
and sent home. If Nurse Utter had followed the standard of care, more likely than not, Oscar
would have been treated for tachycardia by defibrillation, intubation, and mechanical ventilation.
This diagnosis and treatment, based on a reasonable medical probability, more likely than not
would have resolved Oscar’s ventricular tachycardia and prevented his cardiac arrest and death.
Dr. Koumjian’s expert reports demonstrate that Dr. Protzman’s and Nurse Utter’s alleged
negligence are causally related to Oscar’s death. He reports that the signs and symptoms of
Oscar’s ventricular tachycardia were evident, detectable, and treatable, and that adherence to the
standard of care by providing proper monitoring and administration of treatment more likely than
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not would have resolved the tachycardia and prevented Oscar’s cardiac arrest and death. It was
incumbent upon the trial court to review the reports, sort out their contents, resolve
inconsistencies, and decide whether the expert reports demonstrated a good faith effort to show
that Maria’s claims have merit. See Van Ness, 461 S.W.3d at 144. Based on our review, the
reports provide a fair summary of Dr. Koumjian’s opinions as to the causal relationship between
Dr. Protzman’s and Nurse Utter’s alleged breaches and the harm claimed, inform the defendants of
the conduct being called into question, and provide a basis for the trial court to conclude that
Maria’s claims have merit. Consequently, we conclude the trial court did not abuse its discretion
by determining that the expert reports are not conclusory and constitute a good-faith effort to
comply with the TMLA’s requirements as to causation. Issue Three is overruled.
1. Expert Report on Nurse Utter’s Standard of Care and Breach.
In Issue Four, Appellants complain the trial court abused its discretion by overruling their
objections to the expert report regarding Nurse Utter on the basis that Dr. Koumjian’s report fails
to establish the standard of care applicable to Nurse Utter and his alleged breach of that standard.
According to Dr. Koumjian’s expert report, the standard of care for a nurse anesthetist, like that of
Dr. Protzman, required that Nurse Utter monitor Oscar for signs and symptoms associated with
heart failure and ventricular tachycardia, “such as a significant change in blood pressure,
tachycardia, and dizziness,” and report them to a physician, and alleges that Nurse Utter breached
the standard of care by failing to do so.
Appellants counter that Dr. Koumjian’s report as to Nurse Utter is deficient in part because
it fails to place Nurse Utter in the recovery room with Oscar or explain the role of a nurse
anesthetist in providing post-procedure care. They contend the report is also deficient because it
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fails to identify or discuss Utter’s role in relation to that of the hospital’s nursing staff present in the
recovery room with Oscar, or the hospital nursing staff to whom Dr. Protzman should have issued
orders to closely monitor Oscar.3 Appellants note that Nurse Utter cannot be assumed to have
provided post-operative care to Oscar, and indicate that Dr. Koumjian’s report only links Nurse
Utter to Oscar during the administration of anesthesia between 9:05 and 9:50 a.m., during which
the report fails to claim that Oscar presented any observable symptoms of severe coronary artery
disease such as elevated blood pressure, heart rate, and dizziness. Those symptoms, Appellants’
argue, presented only after a second administration of anesthesia by an unnamed provider. For
these reasons, Appellants argue Dr. Koumjian’s expert report regarding Nurse Utter is speculative
and without foundation as no facts recited in the report connect Nurse Utter’s care to Oscar’s
post-procedure care.
We agree with these assertions. The facts recited in Dr. Koumjian’s expert report
regarding Nurse Utter do not adequately explain how or why Nurse Utter’s specific conduct
constitutes a breach of the standard of care for a nurse anesthetist. In his report, Dr. Koumjian
specifically identifies Nurse Utter as the person who provided general anesthesia to Oscar between
9:05 and 9:50 a.m. Oscar’s pre-anesthesia heart rate was 84, and when he was taken to the
recovery room at 9:42 a.m., eight minutes before anesthesia concluded at 9:50 a.m., his heart rate
was 82. However, the report does not identify Nurse Utter as the person who subsequently
administered the anesthesia to Oscar for a pain-control block, nor as a member of the nursing staff
of the hospital or its recovery room. The facts which Dr. Koumjian recites regarding Oscar’s
post-procedure complaints, signs, and symptoms, neither directly nor indirectly implicate any act
3
Maria does not claim that Nurse Utter is an employee of the hospital.
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or omission by Nurse Utter which indicates that he breached the standard of care for a nurse
anesthetist in this situation.
The trial court’s factual determination of Nurse Utter’s alleged breach is not supported by
the facts recited in Dr. Koumjian’s expert report. See Stockton, 336 S.W.3d at 615. Because
Dr. Koumjian’s expert report does not provide adequate information to inform Nurse Utter of the
specific conduct Maria has called into question, it fails to provide a basis for the trial court to
conclude that Maria’s claims against Nurse Utter have merit, and does not constitute an objective
good faith effort to comply with the statutory requirements of an expert report. See Van Ness, 461
S.W.3d at 141-42. We conclude the trial court abused its discretion when it overruled Appellants’
objections to Dr. Koumjian’s expert report regarding Nurse Utter’s alleged breach of the standard
of care. Issue Four is sustained.
The Supreme Court has determined that when an appellate court reverses a trial court’s
denial of a motion to dismiss a health care liability claim due to omission of any of the statutory
expert report requirements, the appellate court may remand the case to the trial court to consider
granting a thirty-day extension to cure the deficiencies in the report. Leland v. Brandal, 257
S.W.3d 204, 207–08 (Tex. 2008); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.
2008)(stating that a deficient report may be cured by amending the report or by serving a new
report from a separate expert that cures the deficiencies in the previously filed report); Regent
Health Care Center of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441 (Tex.App.--El Paso 2008,
no pet.). The trial court is in the best position to decide whether a cure for an inadequate expert
report is feasible. See Samlowski v. Wooten, 332 S.W.3d 404, 411–12 (Tex. 2011). Based on
these decisions, it is appropriate to remand the case to the trial court for consideration of whether
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the deficiencies in the expert reports can be cured, and therefore, whether to grant an extension of
time.
CONCLUSION
The trial court’s order is affirmed in part, and reversed and remanded in part to the trial
court for further proceedings.
August 24, 2016
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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