Sankararao Tamtam, M.D., P.A. v. Lee Waiters, Individually and as Legal Heir and Representative of the Estate of Josephine Waiters--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION

No. 04-07-00398-CV

Sankararao Tamtam, M.D., P.A.,

Appellant

v.

Lee Waiters, Individually and as Legal Heir and

Representative of the Estate of Josephine Waiters,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 06-1365-CV

Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

Delivered and Filed: April 30, 2008

AFFIRMED

This accelerated interlocutory appeal arises from a healthcare liability claim filed by Appellee Lee Waiters, individually and on behalf of the estate of Josephine Waiters ( Waiters ). The issue is whether the trial court abused its discretion in concluding that Waiters expert report complies with the requirements of section 74.351 of the Texas Civil Practice and Remedies Code. We affirm the judgment of the trial court.

Factual Background

Josephine Waiters was a resident at the Guadalupe Valley Nursing Center G.P., L.L.C. and was under the care of Dr. Sankararao Tamtam. Ms. Waiters suffered from a number of medical problems including gout and renal failure. On or about May 12, 2004, Dr. Tamtam prescribed the medication Allopurinol for Ms. Waiters in response to her complaints about lower leg pain.

Ms. Waiters thereafter experienced a number of symptoms and complications which Waiters ascribes to an adverse reaction to Allopurinol and the onset of Toxic Epidermal Necrolysis ( TEN ). Approximately six weeks later, Ms. Waiters was transported to Guadalupe Valley Hospital for an evaluation and, shortly thereafter, she was transferred to Brooke Army Medical Center ( BAMC ) burn unit where she died on July 6, 2004. According to Waiters, the cause of death was noted in the medical records as TEN and the etiology Allopurinol. A biopsy confirmed the diagnosis.

Waiters filed suit on July 25, 2006 against Dr. Tamtam and the Guadalupe Valley Nursing Center alleging negligence in the medical care and treatment of Ms. Waiters. After Waiters served Dr. Tamtam with the expert report of Dr. Michael Zeitlin, Dr. Tamtam filed a motion to dismiss asserting that the report failed to comply with the statutory requirements of section 74.351. Tex. Civ. Prac. & Rem. Code Ann. 74.351 (Vernon 2003). The trial court denied the motion to dismiss.

In a single issue on appeal, Dr. Tamtam claims the trial court abused its discretion in denying his motion to dismiss because Waiters expert report failed to establish (1) that Dr. Zeitlin is properly qualified and (2) the required causal relationship.

Standard of Review

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. We may not substitute our judgment for the trial court s judgment. Id. Furthermore, an appellate court may not determine the trial court abused its discretion merely because we would have decided the matter differently. See Clayton v. Moore, 224 S.W.3d 440, 444 (Tex. App. Dallas 2007, no pet.).

Dr. Zeitlin s Qualifications

Dr. Tamtam argues that Dr. Zeitlin is not qualified to provide the expert opinion expressed in his report because the report failed to show that Dr. Zeitlin possessed the particular knowledge, skill, experience, training or education to provide an opinion on the proximate cause of the alleged injury. Waiters counters that (1) Dr. Zeitlin s qualifications are adequate and (2) Dr. Tamtam failed to raise lack of qualifications in his motion to dismiss.

A. Preservation of Error

A plaintiff must serve an expert report, with the expert s curriculum vitae, on each physician against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann.
74.351(a). Section 74.351(a) provides: [e]ach defendant physician . . . whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived. Id. (emphasis added). Additionally, section 74.351(l) provides that [a] court shall grant a motion challenging the adequacy of an expert report 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. at 74.351(l). If a report is found to be deficient then the court may grant one 30-day extension to the claimant in order to cure the deficiency. Id. at
74.351(c).

Waiters served Dr. Zeitlin s report on Dr. Tamtam within the statutory time period. Dr. Tamtam did not object to the expert report apart from his motion to dismiss. In his motion to dismiss, Dr. Tamtam objects to the sufficiency of the expert report, stating: Dr. Zeitlin s report is not a fair summary of his expert opinion regarding the causal relationship between the deviation in the standard of care and the injury allegedly suffered as demanded by the Supreme Court in Palacios. Tamtam s motion to dismiss focuses exclusively on the report s alleged lack of causation. The motion is silent with regard to the alleged lack of qualifications of Dr. Zeitlin.

On appeal, Dr. Tamtam argues (1) the phrase in his motion that this report establishes that it does not comply with the definition of an expert report is sufficient to preserve a complaint regarding Dr. Zeitlin s lack of qualifications, and (2) regardless of whether it was raised in the motion to dismiss, Dr. Zeitlin s lack of qualifications was argued before the trial court during the hearing on the motion to dismiss.

B. The Motion

It is axiomatic that a party must state, in the motion, the grounds upon which it seeks relief. In order to preserve error, the record must show that the complaint was made to the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. Civ. App. 33.1(a)(1)(A). We hold that the motion to dismiss was insufficient to make the trial court aware of the complaint regarding Dr. Zeitlin s qualifications. The generic complaint that the expert report fails to meet the requirements of [section] 74.351 et seq., followed by argument relating exclusively to lack of causation, fails to set forth a complaint concerning qualifications with sufficient specificity to preserve error.[1]

C. The Hearing

Dr. Tamtam argues that regardless of whether a specific objection was made, the parties argued lack of qualifications before the trial court. The burden is on the appellant to present a sufficient record to show error requiring reversal. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). The appellate record does not contain a reporter s record of the motion to dismiss, or any indication that the court considered lack of qualifications at the hearing. Without a record of the hearing before the trial court, we have no basis to assume the trial court considered lack of qualifications.

D. Dr. Zeitlin s Qualifications

Even assuming that lack of qualifications was before the trial court, we hold that Dr. Zeitlin was sufficiently qualified to render opinions in this matter. A person may qualify as an expert witness on whether a physician departed from the standard of care only if that person: (1) is a physician who is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of the accepted standards of care involved in the case; 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. 74.402(a) (Vernon 2003). In addition, the court must consider whether, at the time the claim arose or at the time the testimony is given, the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim, and is actively participating in rendering medical care relevant to the claim. Id. at 74.401(c).

Dr. Zeitlin is board certified in family practice with an additional certification in geriatric medicine. Dr. Zeitlin s practice appears focused on geriatric medicine, and he is the author of several articles relating to that subject. His resume reflects post-graduate training in the area of geriatrics and care of the elderly. His employment history reflects several positions involved in the provision of care to the elderly, in both private practice and in residential settings. As a consequence, the statement in his report that he is familiar with the standard of care applicable to doctors and nurses providing care to patients in a nursing home setting is supported by his curriculum vitae. He further provides that he has supervised nurses treatment and care of patients with conditions similar to Josephine Waiters. As someone who cares for geriatric patients, Dr. Zeitlin has the requisite skill and knowledge to opine that the prescribing of Allopurinol to a nursing home patient with renal failure was a breach of the standard of care. A physician with Dr. Zeitlin s background would have knowledge of the adverse effects of prescribed medication. The medical literature of which Dr. Zeitlin is familiar indicates that TEN is a risk associated with Allopurinol. The medical records reviewed by Dr. Zeitlin confirmed that Ms. Waiters death was attributable to TEN and the etiology Allopurinol.

We, therefore, conclude that Dr. Zeitlin s qualifications, as set forth in his report and curriculum vitae, sufficiently qualify him to opine on the accepted standards of care applicable to Dr. Tamtam and the nurses caring for Ms. Waiters and the alleged breach of the standard of care. Likewise, Dr. Zeitlin s qualifications as set forth sufficiently qualify him to opine on causation. Tex. Civ. Prac. & Rem. Code Ann. 74.401(c).

Causation

Dr. Tamtam next complains that the report fails to explain the causal link between any alleged breach of the standard of care and Josephine Waiters death. When considering a section 74.351(l) motion to dismiss, the issue for the trial court is whether Waiters expert report constitutes a good-faith effort to comply with section 74.351. Bowie Mem l Hosp., 79 S.W.3d at 52. To constitute a good-faith effort, the report must (1) inform the defendant of the specific conduct called into question by the plaintiff s claims and (2) provide a basis from which the trial court may conclude the claims have merit. Id. In order to establish causation, an expert report must provide information linking the defendant s purported breach of the standard of care to the plaintiff s injury. Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App. San Antonio 2004, no pet.). The report must also set forth the causal link between the alleged breach of standard of care and the injury or death. See Bowie Mem l Hosp., 79 S.W.3d at 53.

Dr. Zeitlin s report notes that Ms. Waiters s death certificate states her death was due to complications of TEN and her autopsy attributes her death to TEN, necrotizing enterocolitis with invasive Staph and Proteus infection, and Proteus and Staph. Dr. Zeitlin describes Allopurinol as a medication which warns Stevens-Johnson syndrome or TEN is a risk or adverse reaction associated with Allopurinol. The report further explains that [d]rugs are the main cause of TEN. Dr. Zeitlin s report opines that Dr. Tamtam breached the standard of care by inappropriately prescrib[ing] allopurinol; fail[ing] to recognize early signs and symptoms of drug reaction to allopurinol; and not discontinuing allopurinol in a timely manner. As to proximate cause, Dr. Zeitlin s report states:

The inappropriate prescription of allopurinol in a patient with renal compromise caused or contributed to Stevens-Johnson syndrome or TEN.

. . . .

The failures of the nursing staff at Guadalupe Valley Nursing Center and the failures of Dr. Sankararao Tamtam stated above proximately caused the death of Josephine Waiters. Ms. Waiters [was] treated at the burn unit from June 24, 2004 until her death on July 6, 2004. Dr. Wanek determined her death was due to TEN and the etiology allopurinol. A biopsy confirmed the diagnosis. Toxic epidermal necrolysis (TEN) is a wide spread blistering disease and has similarities to Stevens-Johnson syndrome. TEN and Stevens-Johnson syndrome are differentiated on the basis of the percentage of fatal body surface area involved. Drugs are the main cause of TEN. The above breaches in the standard of care resulted in Ms. Waiters unfortunate pain and suffering and ultimate death.

A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent said act or omission 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.). Here, the expert report links the alleged breaches, prescribing Allopurinol and not adequately monitoring and detecting any adverse reaction, to Ms. Waiters death from TEN, an identified risk of Allopurinol.

Dr. Zeitlin opined that Ms. Waiters should not have been prescribed Allopurinol because she had renal failure, and the inappropriate prescription caused or contributed to TEN. He further described the deteriorating condition of Ms. Waiters and Dr. Tamtam s failure to discontinue the Allopurinol as negatively impacting Ms. Waiters prognosis. The report indicates that Dr. Zeitlin relied on the medical records of the nursing center, Guadalupe Valley hospital, and BAMC, including the autopsy. Specifically, the report refers to a BAMC doctor who determined her death was due to TEN and the etiology allopurinol. Dr. Zeitlin concludes: [a] biopsy confirmed the diagnosis. Dr. Zeitlin s expert report contains sufficient information to inform Dr. Tamtam what conduct is at issue and how it contributed to Ms. Waiter s death. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(r)(6).

The record shows the trial court could have concluded Dr. Zeitlin s expert report established a causal relationship between Dr. Tamtam s departure from the standard of care and Ms. Waiters death, thus constituting a good faith effort to provide a fair summary of the expert s opinions. See Tex. Civ. Prac. & Rem. Code Ann. Sec. 74.351(r)(6); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). Therefore, we conclude the trial court did not abuse its discretion in denying Dr. Tamtam s motion to dismiss pursuant to section 74.351(r)(6).

Conclusion

Dr. Tamtam presented a motion to dismiss before the trial court complaining solely of the lack of causation contained in Dr. Zeitlin s report. We hold that such a motion is insufficient to preserve error concerning alleged lack of qualifications and there is nothing in the record to indicate that lack of qualifications was before the trial court. Additionally, Dr. Zeitlin s report provides sufficient notice to Dr. Tamtam of the standards of care allegedly breached, the manner in which the care failed to meet the standard, and the causal relationship between that failure and the injury. We, therefore, affirm the trial court s order denying Dr. Tamtam s motion to dismiss.

Rebecca Simmons, Justice

[1] The parties do not raise and we do not address the sufficiency of the objection to qualifications under section 74.351(a).