Damian Chaupin, M.D. v. Melissa Schroeder, Individually as wrongful death beneficiary of Zane Schroeder, deceased, on behalf of all wrongful death beneficiaries of Zane Schroeder, Deceased, and as Administrator of the Estate of Zane Schroeder, Deceased--Appeal from Probate Court No 2 of Harris County

Affirmed and Memorandum Opinion filed July 26, 2007

Affirmed and Memorandum Opinion filed July 26, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01102-CV

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DAMIAN CHAUPIN, M.D., Appellant

V.

MELISSA SCHROEDER, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF ZANE SCHROEDER, DECEASED, ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF ZANE SCHROEDER, DECEASED, AND AS ADMINISTRATOR OF THE ESTATE OF ZANE SCHROEDER, DECEASED, Appellee

On Appeal from Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 347,996-402

M E M O R A N D U M O P I N I O N

This is a health care liability lawsuit governed by chapter 74 of the Texas Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 74.001-.507 (Vernon 2005 & Supp. 2006). Damian Chaupin, appellant and a defendant below, brings this interlocutory appeal from the trial court=s denial of his motion to dismiss, which was based on the alleged inadequacy of the preliminary expert report prepared by Robert Schoene and filed by appellee/plaintiff, Melissa Schroeder, individually as wrongful death beneficiary of Zane Schroeder, deceased, on behalf of all wrongful death beneficiaries of Zane Schroeder, deceased, and as administrator of the estate of Zane Schroeder, deceased. See id. ' 51.014 (Vernon Supp. 2006) (authorizing interlocutory appeal). On appeal, Chaupin contends that (1) Schoene was not qualified to offer the opinions in the report, and (2) the report was inadequate regarding the standard of care, the alleged breach of the standard, and the causal connection between the alleged breach and the alleged damages. We affirm.

I. Course of Events

On March 7, 2004, Zane Schroeder was admitted to Houston Northwest Medical Center complaining of severe back and abdominal pain and abdominal tension.[1] Chaupin examined him and concluded that he had a severe ileus, or intestinal obstruction.[2] Chaupin ordered a nasogastric tube placed and ordered Mr. Schroeder=s oxygen levels monitored with a pulse oximeter. He also instructed that he was to be notified if the levels fell below 94 percent. During the night, Mr. Schroeder=s pulmonary rate was uneven and rapid. He was placed on an oxygen mask, but even with supplemental oxygen, his oxygen levels fluctuated between 90-95 percent. An X-ray taken the next morning showed his lungs to be hypoinflated, apparently due to an inability to take a full breath.

Chaupin again examined Mr. Schroeder at 9:30 a.m., indicating in a progress note that he had oxygen levels at 93-96 percent. He further indicated that he would re-examine the patient after a CT scan was performed. Dr. Bhavesh Bhatt, a pulmonologist, examined Mr. Schroeder at 11:30, noting oxygen levels of 90-92 percent. He recommended transfer to the intensive care unit and ordered a stat (i.e., immediate) arterial blood gas test. Subsequently, Dr. Jefy Mathew was called to evaluate Mr. Schroeder for respiratory failure. When the arterial blood gas results arrived, Matthew decided to intubate due to Aimpending respiratory failure.@

After two failed intubation attempts, the second of which apparently entered the esophagus, Mathew ordered a stat surgery and anesthesia consult. After a third failed intubation, cardiopulmonary resuscitation had to be performed. At that point, Dr. Bethea, an anesthesiologist and emergency room physician, arrived and attempted one last intubation.[3] After this attempt also failed, Chaupin, who had also arrived, performed a cricothyroidotomy (an incision into the airway to assist breathing), and CPR continued. Mr. Schroeder was pronounced dead at 1:50 p.m. An autopsy identified the cause of death as an air embolism and stated that the most likely source was the wound created by the cricothyroidotomy.

 II. Schoene=s Report

Melissa Schroeder (Aplaintiff/appellee@) filed suit alleging negligence against Chaupin, Mathew, Bhatt, and Houston Northwest, among others. Pursuant to chapter 74 of the Texas Civil Practice and Remedies Code, she served the report of Schoene, a pulmonologist and internist, on each defendant.

In his report, Schoene listed extensive qualifications, including current and former teaching and practicing positions, as well as numerous articles and memberships, primarily focusing on pulmonary medicine. He stated that he has been practicing medicine in an area relevant to this case and has trained and consulted with health care providers licensed in the same fields as doctors Mathew, Bhatt, and Chaupin. He further stated that by virtue of his education, training, experience, and board certifications, he is familiar with the accepted standards of care for the treatment at issue in this case. Schoene=s curriculum vitae supports these assertions with the details of numerous teaching and practicing positions, extensive training, and certifications in internal medicine and pulmonary disease.

Among the criticisms Schoene made in his report was that Chaupin had the opportunity to properly evaluate Mr. Schroeder and Ainstitute routine and accepted medical interventions that would have, in reasonable medical probability, prevented his death.@ He opined that pulse oximeters are often inaccurate and unreliable because they measure only oxygenation, not ventilation, and they cannot detect changes in oxygen tension until levels fall low enough to cause a change in the saturation of the hemoglobin. He states that by the time a blood gas was finally drawn on Mr. Schroeder, his pulse oximeter reading showed an oxygen level of 90.4 percent, when his actual oxygen level at the time was only 67.4 percent, well below the normal level of 80-100 percent. Further, the amount of carbon dioxide in the blood was elevated, and the pH was markedly acidotic.

Based on these assessments, Schoene opined that under the circumstances, Chaupin Afell below the standard of care by relying on the inaccuracy of the pulse oximeter readings and not obtaining an arterial blood gas.@ Had a blood gas been drawn earlier, according to Schoene, the Atrue nature of [Mr. Schroeder=s] poor pulmonary function and deteriorating status would have been recognized and he could have received more aggressive care for his worsening ileus to improve his respiratory status or a safe, well planned intubation to ensure proper oxygenation.@ He further states that Chaupin violated the standard of care by inaccurately assessing Mr. Schroeder=s condition, suggesting Chaupin failed to correctly read and react to vital signs and physical symptoms. This failure to accurately assess, in turn led to Chaupin=s failure to (1) recognize that the attempts to decompress the ileus were not working and (2) immediately institute other medical procedures, such as a well-planned intubation, that would have improved Mr. Schroeder=s deteriorating condition before an emergency intubation became necessary.

Further, regarding causation, Schoene stated as follows:

In reasonable medical probability, by allowing Mr. Schroeder to sit around for 18 hours before an arterial blood gas was obtained, Dr. Chaupin allowed Mr. Schroeder to deteriorate to a point where the intubation became necessary. In addition, Dr. Chaupin=s failure to decompress Mr. Schroeder=s abdomen caused Mr. Schroeder to suffer intense, unrelieved abdominal pain, with expansion of his intestines and stomach to the point where, in reasonable medical probability, it impeded his ability to achieve adequate oxygenation and ventilation by preventing his diaphragms from moving up and down with his breathing. This caused his O2 saturation to drop, and, in reasonable medical probability, resulted in respiratory distress and the failed intubation attempts which led, in the natural sequence of events, to Mr. Schroeder=s death.

. . . .

In this case, it is especially distressing that not only did Mr. Schroeder not have to die, but his last 18 hours were spent in excruciating pain. Dr. Chaupin, Dr. Bhatt, Dr. Matthew [sic] and the Houston Northwest Medical Center, each had numerous opportunities to help Mr. Schroeder and save his life. Instead, no one acted with any urgency during his hospitalization. While his pain grew, his abdomen expanded and became more tense and swollen, his ileus worsened, and his oxygenation never reached normal levels. As a result, Mr. Schroeder died needlessly.

As stated, the trial court denied Chaupin=s motion to dismiss based on Schoene=s qualifications and the adequacy of the report.

III. Standards of Review

We utilize an abuse of discretion standard in reviewing a trial court=s decision on a motion to dismiss a case under section 74.351 of the Civil Practice and Remedies Code. Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.CHouston [14th Dist.] 2006, no pet.); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (decided under prior law). Under section 74.351(l), a trial court should grant a motion challenging the adequacy of an expert report if the report does not represent an objective good faith effort to comply with the definition of an expert report in subsection (r)(6). Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(l). Subsection (r)(6) defines Aexpert report@ as a written report providing a fair summary of the expert=s opinions regarding the standard of care, the manner in which the care rendered by the health care provider failed to meet the standard of care, and the causal relationship between that failure and the harm claimed. Id. ' 74.351(r)(6). Additionally, in order to provide an acceptable report, the expert must establish that he or she is qualified to do so. Id. ' 74.351(r)(5)(A). To qualify as an expert on the issue of whether a physician departed from standards of medical care, the report and curriculum vitae must demonstrate that he or she 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, cure, 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. Id. ' 74.401(a). In determining whether a witness is qualified on the basis of training or experience, the court must consider whether the witness: (1) is board certified or has other substantial training or experience in an area or medical practice relevant to the claim; and (2) is actively participating in rendering medical care relevant to the claim. Id. ' 74.401(c).

Ultimately, to constitute a good faith effort, an expert=s medical liability report must establish the expert=s qualifications, the applicable standard of care, how that standard was breached by the particular actions of the defendant, and how that breach caused the damages claimed by the plaintiff. See, e.g., Palacios, 46 S.W.3d at 878-79. The report must do more than merely state the expert=s conclusions; it must be sufficiently explicit to: (1) inform the defendant of the specific conduct that is being called into question; and (2) provide a basis for the trial court to conclude that the plaintiff=s claims have merit. Id. at 879.

 IV. Schoene=s Qualifications

In his first issue, Chaupin contends that Schoene was not qualified to offer the opinions contained in his report. Specifically, Chaupin asserts that Schoene, a pulmonologist and internist, has demonstrated no expertise qualifying him to assess the conduct of Chaupin, a general surgeon, regarding treatment of a possible ileus with abdominal distension and pain.

Chaupin is correct in noting that not every physician automatically qualifies as an expert in every area of medicine. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). However, it is equally true that to be qualified as an expert in a particular case, a physician need not be a practitioner in the same specialty as the defendant. See id. at 153; see also Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Instead, the test is whether the offering party has established that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003). Specifically for preliminary expert reports under chapter 74, the report itself, together with the attached CV, must demonstrate that the physician has knowledge of accepted standards of medical care for the diagnosis, cure, or treatment of the illness, injury, or condition involved in the claim and is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.401(a). If a particular subject is substantially developed in more than one medical field, a qualified physician in any of those fields may testify. Broders, 924 S.W.2d at 152; Blan, 7 S.W.3d at 745-46. Furthermore, if the subject is common to and equally recognized and developed in all fields of practice, any physician familiar with the subject may testify as to the standard of care. E.g.,Blan, 7 S.W.3d at 745-46.

Chaupin contends that the illness or condition at issue in this case is an ileus.[4] He states that surgeons treat ileus and pulmonologists do not; thus, according to Chaupin, Schoene cannot be qualified as an expert regarding Chaupin=s treatment of Mr. Schroeder=s ileus. Schoene=s report, however, focuses on Chaupin=s reliance on a pulse oximeter to measure Mr. Schroeder=s oxygenation and his failure to order a more reliable arterial blood gas test. He further criticizes Chaupin=s failure to re-evaluate Mr. Schroeder after a CT scan was performed and his failure to accurately assess Mr. Schroeder=s vital signs. Schoene mentions the ileus both in the medical history section of the report and the causation section in the context of its being the cause of Mr. Schroeder=s respiratory distress.[5] According to Schoene, although the ileus caused the onset of the respiratory problems, Chaupin=s failure to utilize the proper blood gas test and failure to properly evaluate and assess the patient led to the emergency failed attempts to intubate, which led ultimately to Mr. Schroeder=s death.

Schoene=s report and CV adequately demonstrate that he poses sufficient expertise regarding the use of blood gas tests and the evaluation and assessment of patients undergoing pulmonary distress to opine regarding Chaupin=s conduct in these matters. In his report, Schoene listed numerous teaching and practicing positions, as well as articles and memberships, primarily focusing on internal and pulmonary medicine. He stated that he has been practicing medicine in an area relevant to this case and has trained and consulted with health care providers licensed in the same field as Chaupin. He further stated that by virtue of his education, training, experience, and board certifications, he is familiar with the accepted standards of care for the treatment at issue in this case. Schoene=s CV generally supports these assertions.

In Blan v. Ali, an expert opined in his report that the standard of care he described would apply to any physician treating a patient suffering from a stroke. 7 S.W.3d at 746. Based on this assertion and the expert=s demonstrated training and experience in the treatment of strokes, we held that he was qualified to opine on the care provided to a stroke victim by a cardiologist and an emergency room physician. Id. at 747. Schoene made similar statements in his report regarding the use of blood gas tests and the evaluation and assessment of Mr. Schroeder=s condition. Chaupin, however, attempts to distinguish Blan by arguing that because the expert in that case was a neurologist, he had clear expertise on neurological conditions such as strokes, whereas Schoene does not have such obvious expertise regarding the treatment of ileus. But again, it is Chaupin=s treatment of Mr. Schroeder=s pulmonary distress, not the treatment of the ileus, that is the focus of Schoene=s criticisms. His stated qualifications support his expertise in making those statements, and Blan is closely analogous to the present case.

Similarly, several courts have held that a physician with demonstrated expertise in treating infections could offer an opinion on the treatment of an infection by a physician from a different specialty. See, e.g., McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at *10 (Tex. App.CHouston [1st Dist.] Jan. 11, 2007, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 25 26 (Tex. App.CSan Antonio 2001, pet. denied); Tennyson v. Phillips, No. 12 02 00154 CV, 2004 WL 63158, at *8 (Tex. App.CTyler 2004, pet. denied) (mem. op.). As in Blan, the focus in these cases is on whether the physician-expert has demonstrated expertise regarding the subject matter at issue, not on whether he or she has expertise in the specialty of the defendant-physician. See McKowen, 2007 WL 79330, at *10; Keeton, 53 S.W.3d at 25 26; Tennyson, 2004 WL 63158, at *8. Chaupin attempts to distinguish these cases by pointing out that they each involved post-operative care, not pre-operative care as in the present case. This distinction is not meaningful. We believe that the infection treatment cases are very analogous to the present situation. Although Chaupin practices a different specialty than Schoene, the physician-expert is qualified to opine on the defendant-physician=s conduct because he has demonstrated expertise in the subject matter at issue.[6]

Based on the foregoing, we find that Chaupin=s arguments regarding Schoene=s qualifications are without merit. Accordingly, we overrule Chaupin=s first issue.

V. Adequacy of Report

In his second issue, Chaupin contends that even if Schoene is qualified as an expert in this case, his statements in the report are inadequate to establish the elements required under section 74.351. To be adequate, the report must state: (1) the applicable standards of care; (2) the manner in which the defendant=s conduct breached the standards of care; and (3) the causal relationship between the breach and the claimed damages. Palacios, 46 S.W.3d at 878-79. Specifically, Chaupin contends that the report is inadequate regarding: (1) the standard of care relating to Chaupin=s use of blood gas tests; (2) the causal relationship between the use of blood gas tests and the claimed damages; (3) the standard of care relating to evaluation and assessment of Mr. Schroeder; and (4) the standard of care and alleged breach of the standard relating to decompression of Mr. Schroeder=s abdomen. We will examine each argument in turn.

 A. Blood Gas MonitoringCStandard of Care

Regarding the standard of care for blood gas monitoring, Chaupin asserts that the report does not contain any statement of the standard specifically applicable to him (or to surgeons), but only includes general statements regarding Aany physician.@ However, Schoene=s statements in the report are more specific than Chaupin suggests. Schoene provides significant detail and explanation regarding the proper use of pulse oximeters and arterial blood gas tests, including why the latter is preferable to the former under circumstances such as those presented in the treatment of Mr. Schroeder. It is true that among his comments on the standard of care, Schoene says: AThe standard of care for any physician taking care of a patient with pulse oximeter readings of 88-94% while on 100% non-rebreather mask requires the physician to obtain arterial blood gases to determine the patient=s true pulmonary status.@ (emphasis added). Notwithstanding the use of the Aany physician@ language of which Chaupin complains, the report is quite specific to Chaupin and the situation he faced in treating Mr. Schroeder and is not a generic description of amorphous standards. Schoene=s statements must also be read in light of his qualifications, as stated in the report and attached CV, which include the assertions that Schoene has been practicing medicine in an area relevant to Mr. Schroeder=s treatment, has trained and consulted with health care providers licensed in the same field as Chaupin, and is familiar (by virtue of his education, training, experience, and board certifications) with the accepted standards of care for the treatment at issue in this case.

Furthermore, we reject Chaupin=s suggestion that a report may be deemed inadequate simply because it states that Aany physician@ would have certain knowledge or expertise. As we stated in Blan: ADespite the fact that we live in a world of niche medical practices and multilayer specializations, there are certain standards of medical care that apply to multiple schools of practice and any medical doctor.@ 7 S.W.3d at 746; see also In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405-06 (Tex. App.CAmarillo 2006, orig. proc.) (finding expert report was adequate on standard of care for multiple defendants where each defendant was involved in the same type of care and expert clearly stated and explained that the standard was the same for each).

Chaupin cites Olveda v. Sepulveda, 141 S.W.3d 679 (Tex. App.CSan Antonio 2004, pet. denied), and Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App.CHouston [1st Dist.] 2006, no pet.), for the proposition that it is improper to apply global standards of care to different health care providers. However, these cases are distinguishable from the present case. In Olveda, the court does say that A[i]t is not enough . . . to state that all physicians should be able to diagnose [a particular illness].@ 141 S.W.3d at 682. However, the point that the court is making is not that such a statement renders the report inadequate on standard of care, but that such a statement does not convert the opining physician into an expert on the conduct of the defendant-physician, absent proof that the expert was qualified based on knowledge, skill, experience, training, or education. See id. Olveda turns on qualifications, not standard of care. As discussed above, Schoene has stated that he is qualified based on his education, training, experience, and board certifications to opine regarding Chaupin=s care of Mr. Schroeder, and he has trained and consulted with health care providers licensed in the same field as Chaupin. Schoene=s CV also supports these statements.

In Gray, the expert opined, without explanation, that an identical standard of care applied to both the anesthesiologist and the nursing staff who cared for the patient in question. 189 S.W.3d at 859. The court held that A[w]hile it is possible that an identical standard of care applied to both . . . such generic statements, without more, can reasonably be deemed conclusory.@ Id. The court also emphasized the abuse of discretion standard, stating that the trial court did not act unreasonably in granting the motions to dismiss. Id. Here, Schoene=s report is not merely conclusory regarding the standard of care on blood gas testing. As stated above, Schoene opined in some detail as to the appropriate use of pulse oximeters and arterial blood gases. Accordingly, Gray is distinguishable from the present case. Chaupin=s arguments regarding the adequacy of the report in addressing the standard of care relating to blood gas monitoring are without merit.

 B. Blood Gas MonitoringCCausation

Chaupin next argues that Schoene=s statements regarding causation, as related to the blood gas tests, are inadequate. First, Chaupin asserts that Schoene=s blood gas-related causation statements are Aconclusory and [do] not establish that any breach in this regard by Dr. Chaupin caused the injury in question.@ Chaupin then isolates one point from Schoene=s report as being conclusory: where Schoene states that had an arterial blood gas been drawn earlier, Athe true nature of [Schroeder=s] poor pulmonary function and deteriorating status would have been recognized and he could have received more aggressive care for his worsening ileus to improve his respiratory status.@ This statement in itself could be considered conclusory, at least in regard to what Amore aggressive care@ might entail. In its context, however, it loses its conclusory nature: the statement is made in the ADeviations from the Standard of Care@ section of the report and not in the ACausation@ section (discussed in more detail below), and Chaupin neglects to mention the last phrase in the quoted sentence, which reads: Aor a safe, well planned intubation to ensure proper oxygenation.@ This concluding phrase provides a specific measure that, according to Schoene, should have been undertaken had the true nature of Mr. Schroeder=s pulmonary function been known by use of an arterial blood gas rather than a pulse oximeter.[7] Chaupin=s isolation of this one partial sentence does not demonstrate that Schoene=s opinions were deficient regarding causation.

Chaupin further argues that there exists an analytical gap Ain Dr. Schoene=s explanation of how Dr. Chaupin=s care caused this patient to aspirate his vomitus, or how Dr. Chaupin violated a standard of care . . . which caused the vomiting, aspiration, or death.@ Chaupin does not, however, point to any specific language in the report as demonstrating such a gap. To the contrary, reading Schoene=s report as a whole, it is clear that he is opining that Chaupin=s failure to use the proper blood gas test under the circumstances and failure to properly evaluate and assess Mr. Schroeder=s condition allowed Mr. Schroeder=s condition to deteriorate to the point where an emergency intubation became necessary. Schoene explains at length how difficult and dangerous the emergency intubation attempts were and how they, in turn, led to Mr. Schroeder=s aspirating his vomitus, which led directly to his death.

Additionally, Chaupin argues that Athe statement that the outcome >could= have been affected by Dr. Chaupin is insufficiently [sic] conclusory and broad.@ He further contends that this language, amounting to no more than a suggestion of increased risk, does not describe an actionable tort in Texas, citing Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 405-06 (Tex. 1993). Chaupin does not, however, identify the Acould@ language that he is referencing. Schoene states in the report that as a result of Chaupin=s actions and inactions (as well as those of others), AMr. Schroeder died needlessly.@ He opines that by not using the appropriate blood gas test and by not properly evaluating and assessing Mr. Schroeder=s condition, Chaupin allowed Mr. Schroeder to deteriorate to a point at which the emergency intubation attempts became necessary. Based on these specific statements, and the report as a whole, we do not find the causation statements to be overbroad or conclusory.

Lastly, Chaupin complains that Schoene failed to rule out other factors beyond Chaupin=s control as causes of Mr. Schroeder=s damages. Such an opinion is not required. This case is not on appeal from a final trial or from the grant of summary judgment. In a preliminary expert report, the expert is charged with identifying standards, breach thereof, and causation. Palacios, 46 S.W.3d at 878-79. Chaupin does not cite any cases, and we are aware of none, further requiring the expert (beyond an affirmative explanation of causation) to rule out other possible causes not yet raised in the case. Furthermore, in his report, Schoene did in fact discuss at length other conduct by other care givers that Schoene believes also proximately caused the claimed damages. More than one act and more than one actor can be proximate causes of the same damages. See, e.g., Morrell v. Finke, 184 S.W.3d 257, 284 (Tex. App.CFort Worth 2005, pet. abated) (A[A]ll persons whose negligent conduct contributes to the injury, proximately causing it are liable.@) (citing Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)).

 C. Evaluation and AssessmentCStandard of Care

Chaupin next attacks Schoene=s statement that A[t]he standard of care requires any physician caring for a patient to accurately evaluate and assess the patient in order to institute necessary medical interventions.@ Chaupin argues that this sentence: (1) contains an impermissibly broad statement of the standard of care; (2) provides no factual description of what should have been done to evaluate or assess the patient in this case; and (3) does not contain a proper statement of the legal standard because it is not based on Aordinary care.@ However, this sentence must be read in the broader context of the report, not in isolation. Immediately prior to this sentence, and in the same paragraph, Schoene criticizes Chaupin=s failure to re-evaluate Schroeder after the CT scan was performed as well as Chaupin=s alleged notation of inaccurate vital signs. It is thus clear from the context that Schoene is talking about re-evaluating Schroeder after the CT scan (and in light of the results) and assessing his vital signs. Schoene is not making a completely unfocused generalization about evaluating and assessing a patient as Chaupin suggests. Furthermore, contrary to Chaupin=s second assumption, it is clear from this context that Schoene is basing his statement of the standard of care on the facts of the case at hand.

Lastly, there is no requirement of magic words such as Aordinary care@ in chapter 74. There is nothing in the report to suggest that when Schoene states that Athe standard of care requires . . .@ he is referencing any standard other than that of ordinary care. Accordingly, we find Chaupin=s arguments regarding Schoene=s Aevaluate and assess@ language to be without merit.

D. Perceived Decompression Criticism

Lastly, Chaupin points out that in the causation section of the report, Schoene appears to make allegations regarding Chaupin=s treatment of Mr. Schroeder=s ileus. Specifically, Schoene states as follows:

Dr. Chaupin=s failure to decompress Mr. Schroeder=s abdomen caused Mr. Schroeder to suffer intense, unrelieved abdominal pain, with expansion of his intestines and stomach to the point where, in reasonable medical probability, it impeded his ability to achieve adequate oxygenation and ventilation by preventing his diaphragms from moving up and down with his breathing. This caused his O2 saturation to drop, and, in reasonable medical probability, resulted in respiratory distress and the failed intubation attempts which led, in the natural sequence of events, to Mr. Schroeder=s death.

Considering the report as a whole, it was logical for the trial court to conclude that the accusations being made by Schoene are that Chaupin breached the standard of care by failing to order an arterial blood gas when he should have, by failing to reevaluate Mr. Schroeder after the CT scan, and by failing to accurately record his vital signs. The mention of the failure to decompress, included in the causation section, is an explanation as to why Mr. Schroeder was in such distress. In other words, Mr. Schroeder=s breathing problems, according to Schoene, were a result of his discomfort from the ileus. Because he did not take required measures, Chaupin apparently did not realize the extent of Mr. Schroeder=s respiratory distress, and his failure to relieve the ileus led to Mr. Schroeder=s inability to adequately fill his lungs. These failures, according to Schoene, ultimately led to Mr. Schroeder=s death. The discussion of the respiratory distress would be incomplete without mention of the unrelieved ileus because it was the cause of the respiratory distress. Accordingly, we find Chaupin=s arguments regarding Schoene=s perceived decompression criticism to be without merit. We overrule appellant=s second issue.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 26, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

[1] These background facts are derived from Schoene=s report and are for purposes of this appeal only. Prior to arrival at Houston Northwest, Mr. Schroeder had previously undergone a procedure at another hospital for treatment of chronic lower back pain. Subsequently, but prior to admission to Houston Northwest, Mr. Schroeder made two appearances at the emergency room at Cypress Fairbanks Medical Center. On the second appearance, he was transferred to Houston Northwest.

[2] AIleus,@ or Aparalytic ileus,@ results when intestinal contents back up because of a failure of peristalsis, or normal involuntary intestinal contractions. Webster=s Third International Dictionary 1125, 1682 (1993).

[3] Bethea was not a defendant below, and his first name does not appear in the record.

[4] Chaupin supports this assertion by citing to plaintiff/appellee=s petition, wherein it is alleged that Chaupin failed to properly treat the ileus and failed to timely decompress and examine Mr. Schroeder for surgery. In assessing the sufficiency of a preliminary medical report under chapter 74, a court is not to draw outside inferences but must instead rely exclusively on the information contained within the four corners of the report. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (citing Palacios, 46 S.W.3d at 879). However, the petition also alleges that Chaupin failed to properly assess Mr. Schroeder=s condition, an allegation that would appear to encompass failure to use the proper blood gas test, as well as failure to properly evaluate Mr. Schroeder=s worsening state.

Additionally, Chaupin does not discuss whether internists treat ileus or whether Schoene=s board certification in internal medicine, along with his stated experience and training, would qualify him to opine regarding treatment of that condition. However, because of our reading of the report as opining primarily on pulmonary issues, we need not decide this additional point.

[5] This reading of Shoene=s report (as not focusing on the treatment of ileus) is the interpretation put forth by the plaintiff/appellee in the trial court and on appeal. In other words, plaintiff/appellee is not asserting that the report specifically covers treatment of the ileus.

[6] Although Schoene=s comments stray to some degree into criticism of the ileus treatment, particularly when he suggests that Chaupin could have relieved Mr. Schroeder=s respiratory distress by properly decompressing his abdomen, the focus of the report is clearly on the diagnosis and treatment of the respiratory condition. Indeed, Schoene also suggests Mr. Schroeder=s distress could have been relieved by a well-planned, non-emergency intubation. Accordingly, we need not and do not resolve the question of whether Schoene has demonstrated the requisite qualifications to opine regarding the treatment of ileus. See n.4 supra.

[7] It further should be noted that at no point does Chaupin specifically argue that Schoene=s statements regarding breach of the standard of care (as related to the blood gas tests) are inadequate.