Erik Sloman-Moll, M.D. v. Maria Estela Chavez and Homer Chavez, Sr. and as Next Friends of Homero Chavez, Jr.--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-06-00589-CV
Erik SLOMAN-MOLL, M.D.,
Appellant
v.
Maria Estela CHAVEZ and Homero Chavez, Sr.
as Next Friends of Homero Chavez, Jr.,Appellees
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2005-CVQ-000986-D4
Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: February 28, 2007

 

AFFIRMED

 

In this accelerated appeal, Dr. Erik Sloman-Moll challenges the trial court's denial of his motion to dismiss the lawsuit filed by Maria Estela Chavez and Homero Chavez, Sr., as next friends of Homero Chavez, Jr., due to an inadequate expert report. Because we conclude that the expert report represents a good faith effort to comply with the applicable statute, we affirm the judgment of the trial court.

Background

The Chavezes sued Dr. Sloman-Moll, an otolaryngologist, alleging that he negligently treated their minor son, Homero, in relation to a nasal surgery. The Chavezes timely served the expert report of Dr. Eugene L. Alford, also an otolaryngologist, pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(a) (Vernon Supp. 2006). Thereafter, Dr. Sloman-Moll filed a motion objecting to the adequacy of the report, alleging that it failed to address the standard of care, breach, and causation, and requesting the trial court to dismiss the claims against him. After hearing argument, the trial court denied the motion. On appeal, Dr. Sloman-Moll argues that the trial court abused its discretion in denying his motion to dismiss the lawsuit against him because the report: (1) contains conclusory statements regarding the applicable standard of care and Dr. Sloman-Moll's breach thereof; (2) is speculative and conclusory regarding causation; and (3) does not establish Dr. Alford's qualifications to offer his opinion on causation.

Adequacy of Expert Report

We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id.

Plaintiffs filing medical malpractice suits must timely provide each defendant health care provider an expert report with the expert's curriculum vitae. Tex. Civ. Prac. & Rem. Code Ann. 74.351(a). The expert report must provide "a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem. Code Ann. 74.351(r)(6) (Vernon Supp. 2006). If a defendant moves to dismiss the plaintiff's case based upon the report's inadequacy, the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. 74.351(l). To constitute a "good faith effort," the report must provide enough information to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001); Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 67-68 (Tex. App.--San Antonio 2005, pet. denied).

In determining whether the expert report constitutes a good faith attempt to comply with the statute, we look no further than the report itself. See Palacios, 46 S.W.3d at 878 (the only information relevant to the inquiry is within "the four corners" of the report). While the report need not marshal all of the plaintiff's proof, it must include the expert's opinion on each of the elements identified in the statute: standard of care, breach, and causation. Id. at 878-79; Tovar, 185 S.W.3d at 68. The report need not present evidence as if the plaintiff were actually litigating the merits, but it must do more than merely state the expert's conclusions about the statutory requirements. Palacios, 46 S.W.3d at 879. Instead, "the expert must explain the basis of his statements to link his conclusions to the facts." Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

 

Standard of Care and Breach

Dr. Sloman-Moll argues that Dr. Alford's report does not represent a good-faith effort to comply with section 74.351 because it contains conclusory statements regarding the applicable standard of care and Dr. Sloman-Moll's breach thereof. The standard of care is defined by what an ordinarily prudent physician would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880. "Identifying the standard of care is critical: whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. At the very least, the expert report "must set out what care was expected, but not given." Id. (quoting Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865 (Tex. App.--Houston [1st Dist.] 1999) (Taft, J., dissenting), rev'd, 46 S.W.3d 873 (Tex. 2001)). The report is not required to use any "magical words" to describe the applicable standard of care. Wright, 79 S.W.3d at 53; Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App.--San Antonio 2004, no pet.).

Dr. Alford's report identifies at least one instance in which Dr. Sloman-Moll's treatment of Homero fell below the standard of care for an otolaryngologist treating a patient after a sinus surgery.

On May 12, 2003, following [Homero's] surgical procedure, it became apparent that the patient had developed right eye swelling and diplopia. From a description of the post-operative care unit note, it is clear that [Homero] developed an orbital hematoma, which was not managed properly. Proper management of an orbital hematoma includes a lower lid canthotomy, cantholysis, treatment with steroids, as well as evacuation of the hematoma. This evacuation procedure requires a return to surgery for immediate evacuation. It is clear that this was not performed by Dr. Sloman-Moll.

 

These statements set out the standard of care for treating an orbital hematoma, which include returning the patient to surgery for evacuation of the hematoma, a lower lid canthotomy, cantholysis, and steroidal treatment. Dr. Alford then states that Dr. Sloma-Moll failed to perform these procedures. These statements notify Dr. Sloman-Moll of the actions he should have taken, and failed to take, in managing the orbital hematoma that developed post-surgery. Accordingly, we conclude that Dr. Alford's report represents a good-faith effort to summarize the standard of care and Dr. Sloman-Moll's breach of the standard of care. Dr. Sloman-Moll's first issue is overruled.

Causation

Next, Dr. Sloman-Moll contends that the report is inadequate because it includes only speculative and conclusory opinions regarding causation under section 74.351 (r)(6). "[C]ausation is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and without which the harm would not have occurred." Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.--San Antonio 2004, no pet.). The report must provide enough information to inform the defendant of the conduct at issue and allow the trial court to conclude that the suit has merit. Hutchinson,144 S.W.3d at 617.

Dr. Alford's report states that as a result of Dr. Sloman-Moll's failure to properly follow up Homero's endoscopic sinus surgery, Homero "developed progressive meningitis, encephalitis, and . . . a severe loss of function." The report links Dr. Sloman-Moll's inaction to Homero's injuries. Specifically, had Dr. Sloman-Moll provided proper postoperative care, including returning Homero to surgery for evacuation of the hematoma, and performing a lower lid canthotomy, cantholysis, and steroid treatment, Homero would not have suffered from meningitis and encephalitis. Furthermore, Dr. Sloman-Moll's failure to follow up on Homero's post-surgery complications, such as the cerebrospinal fluid leakage and diplopia, caused Homero to suffer from meningitis and encephalitis. Because we conclude that the report adequately addresses causation, Dr. Sloman-Moll's second issue is overruled.

Expert's Qualifications

In his final issue, Dr. Sloman-Moll argues that neither Dr. Alford's report nor his curriculum vitae set forth Dr. Alford's qualifications to render opinions regarding the cause of Homero's neurological dysfunction. The qualification of a witness to serve as an expert is within the trial court's discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). Section 74.403(a) provides that ". . . a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence." Tex. Civ. Prac. & Rem. Code Ann. 74.403(a) (Vernon 2005); see also Group v. Vicento, 164 S.W.3d 724, 729 (Tex. App.--Houston [14th Dist.] 2005, pet. filed). Rule 702 requires an expert witness to be qualified on the basis of "knowledge, skill, experience, training, or education." Tex. R. Evid. 702.

As stated in his report, Dr. Alford is a board-certified otolaryngologist (head and neck surgeon) as well as a board-certified facial and plastic reconstructive surgeon with current active staff privileges at seven Houston hospitals. His twenty-four page curriculum vitae details his extensive education and training, including formal residency training in head and neck surgery, surgery of the facial nerves, endoscopic sinus surgery, and facial plastic and reconstructive surgery. His curriculum vitae further lists involvement in research, writing, lecturing, and serving as an associate book review editor, all in the area of head and neck surgery. Clearly, both his report and curriculum vitae establish that Dr. Alford was qualified by experience, training and special knowledge to render expert opinions on the subject of head and neck surgery, and specifically, on the subject of endoscopic sinus surgery.

Dr. Sloman-Moll maintains that despite Dr. Alford's background as an otolaryngologist, he did not adequately set forth his ". . . knowledge, skill, experience, training or education to offer causation opinions concerning the patient's alleged 'loss of function' and permanent disability." We disagree. It is axiomatic that a physician trained to perform surgery is also trained to manage surgical complications. See Keo v. Vu, 76 S.W.3d 725, 733 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (holding that physician who regularly performed surgery on the head and neck was qualified to assert an opinion regarding issues common to all surgeries, including the treatment of postoperative infections). Accordingly, Dr. Alford's expertise as a head and neck surgeon also qualifies him to opine on the cause in fact of postoperative complications that flow from that surgery. Here, Dr. Alford testified:

As a result of Dr. Sloman-Moll's failure to appropriately render the usual and ordinary standard of care with regard to followup on patients undergoing endoscopic sinus surgery, Homero Chavez developed progressive meningitis, encephalitis, and has a severe loss of function. From my review, it is unlikely that Homero Chavez will recover any higher level of cerebral function and is a permanently disabled young man as a result of Dr. Sloman-Moll's failing to meet the usual and ordinary standard for care.

 

We cannot say that the trial court abused its discretion by allowing Dr. Alford to render an expert opinion on the causal relationship between Homero's endoscopic sinus surgery and his postoperative complications. Dr. Alford is clearly an expert in endoscopic sinus surgery. As such, he has the training, education and knowledge necessary to opine on the causal relationship between the surgery and the patient's postoperative complications, including progressive meningitis, encephalitis, and loss of function. See Keo, 76 S.W.3d at 733; McKowen v. Ragston, No. 01-06-00665-CV, 2007 WL 79330, at *7 (Tex. App.--Houston [1st Dist.] Jan. 11, 2007, no pet. h.) (expert physician is qualified to testify in an area in which he has "knowledge, skill, training, and experience, and where the subject of the claim. . . falls squarely within his medical expertise"). Accordingly, Dr. Sloman-Moll's third issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice