Kelly Kuykendall and husband, Terry Kuykendall v. Michael J. Dragun, M.D., West Texas Urology--Appeal from 142nd District Court of Midland County

Opinion filed March 23, 2006

In The

Eleventh Court of Appeals

___________

   No. 11-05-00230-CV

__________

KELLY KUYKENDALL AND HUSBAND, TERRY

KUYKENDALL, Appellants

V.

MICHAEL J. DRAGUN, M.D. AND WEST TEXAS UROLOGY, Appellees

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CV45114

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

This is a medical malpractice action. Michael J. Dragun, M.D. and West Texas Urology filed a motion to dismiss contending that Kelly and Terry Kuykendall=s expert report did not satisfy the requirements of Tex. Rev. Civ. Stat. art. 4590i, ' 13.01 (2001).[1] The trial court granted appellees= motion to dismiss and denied appellants= request for an extension of time to file an amended report. We find no error and affirm.

Facts

Kelly Kuykendall underwent a bilateral salphingo-oophorectomy and a laparoscopic-assisted vaginal hysterectomy on June 24, 2002. The surgery was performed by Dr. Brady Locke. Kelly=s bladder was perforated during the surgery. Dr. Dragun was contacted and was asked to repair the injury. He performed a laparotomy and was assisted in the procedure by Dr. Locke.

The original surgery was scheduled for two hours. Because of the bladder complication, the surgery lasted six hours. Appellants allege that Kelly=s peripheral nerves were damaged during the extended surgery.

Appellants filed a medical malpractice action against Dr. Dragun and other health care providers on May 29, 2003. They timely filed the expert report and curriculum vitae of Dr. Mearl A. Naponic. Appellees filed a motion to dismiss, contending the expert report did not satisfy the requirements of Article 4590i, section 13.01. Appellants responded that Dr. Naponic=s expert report was sufficient and, alternatively, requested an Article 4590i, section 13.01(g) thirty-day extension. The trial court conducted a hearing and granted appellees= motion to dismiss and denied appellants= request for an extension.

Issues

In two issues, appellants contend that their expert report satisfies the requirements of Article 4590i, section 13.01 or, alternatively, that the trial court abused its discretion by denying their request for an Article 4590i, section 13.01(g) thirty-day grace period to amend their report.

Standard of Review

A trial court=s decision to dismiss a lawsuit because of an inadequate expert report is reviewed under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court=s decision to grant or deny an Article 4590i, section 13.01(g) grace period is also reviewed under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A reviewing court is not allowed to substitute its judgment for that of the trial court when reviewing a discretionary decision. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241-42.

Does Dr. Naponic=s Report Satisfy Article 4590i?

In Palacios, 46 S.W.3d at 878-79, the supreme court outlined the criteria for evaluating the efficiency of expert reports. Specifically, the court wrote:

[T]he expert report must represent only a good-faith effort to provide a fair summary of the expert=s opinions. A report need not marshal all the plaintiff=s proof, but it must include the expert=s opinion on each of the elements identified in the statute. In setting out the expert=s opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.

A report that merely states the expert=s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Nor can a report meet these purposes and thus constitute a good-faith effort if it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial. (citations omitted)

Courts have identified additional considerations when multiple defendants are sued. In that instance, the expert report must provide an explanation of how each defendant specifically breached the applicable standard of care and how that breach caused or contributed to the cause of injury. Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.CCorpus Christi 2004, no pet.).

That portion of Dr. Naponic=s expert report which addressed Dr. Dragun=s actions contained the following language:

On June 24, 2002, Kelly Kuykendall underwent bilateral salphingo-oophorectomy, as well as a laparoscopic assisted vaginal hysterectomy. Theses [sic] surgical treatments were performed in an effort to relieve pre-operative symptoms of pelvic pain, dysmenorrhea and menorrhagia and failed medical management of same. The initial procedure scheduled for two hours was performed by Dr. Brady Locke and was complicated by an intra-operative injury to the bladder. The perforation of the bladder necessitated surgical repair; and, thus this two hour surgery evolved into a six hour surgery, involving a laparotomy to repair an incision into the bladder of approximately eight to nine centimeters. This second surgery was performed by Dr. Michael Dragun and assisted by Dr. Brady Locke.

The standard of care for such procedures as described above, necessarily require[s] that the peripheral nerves in and adjacent to the operative site be identified and protected. This is particularly true when a self-retaining retractor is used and the length of the surgery is prolonged. Complications, including nerve injuries, from self-retaining retractors are well-known and well-described in the relevant literature. Failing to properly pad the self-retaining retractor, failure to adequately position the patient and/or leaning on the patient during this prolonged surgery are the most likely cause of the intra-operative injuries and complications suffered by Kelly Kuykendall and are below the accepted standard of care for these procedures. As both Dr. Locke and Dr. Dragun performed the bladder repair, they shared the responsibility to protect Kelly Kuykendall against this injury.

A fair summary is something less than a full statement of the applicable standard of care and how it was breached. A fair summary must set out what care was expected but not given. Palacios, 46 S.W.3d at 880 (A[w]hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently@). An expert report must show causation beyond mere conjecture. Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Knowing what specific conduct the plaintiff=s expert has called into question is critical to both the defendant=s ability to prepare for trial and the trial court=s ability to evaluate the viability of the plaintiff=s claims. Palacios, 46 S.W.3d at 876-77. Dr. Naponic=s report does not provide this level of information because his analysis is premised on several assumptions and because he fails to distinguish between the actions of Dr. Locke and Dr. Dragun.

Dr. Naponic=s analysis is similar to a res ipsa approach. Because Kelly suffered from peripheral nerve damage and because the relevant literature documents a connection between that injury and the failure to properly pad self-retaining retractors, improperly positioning the patient, or leaning on the patient, Dr. Naponic assumes that these are the Amost likely@ causes of her injury. He assumes further that Dr. Locke and Dr. Dragun are collectively responsible for one or more of these actions.[2]

There are several problems with this approach. First, Dr. Naponic=s report does not document that a self-retaining retractor was even used or, if so, by whom. This is not a question of mere semantics. Dr. Dragun cannot be held responsible for any actions taken before he arrived in the operating room, nor can he be held responsible for improperly using equipment that was never utilized. Knowing what Dr. Naponic alleges Dr. Locke did during the initial portion of the procedure and what Dr. Naponic alleges happened during Dr. Dragun=s portion of the procedure are vital.

Second, even assuming Dr. Dragun used a self-retaining retractor, Dr. Naponic did not document how it was padded or how it should have been padded. Third, the report does not document how Kelly was positioned at any point in time during her surgical procedure, nor how she should have been positioned during Dr. Dragun=s procedure. Finally, the report provides no support for his hypothesis that Dr. Dragun leaned on Kelly beyond his contention that this is frequently the cause of her type of injury.

The supreme court=s holding in Palacios, 46 S.W.3d at 873, that a trial court=s decision to grant a motion to dismiss is subject to an abuse of discretion review, mandates that we provide trial courts with some deference when determining what constitutes a good faith effort to comply with the statute in a particular case. Because Dr. Naponic=s report failed to provide specific information concerning Dr. Dragun=s conduct, because he assumed the two doctors were equally responsible for Kelly=s injury, and because Dr. Naponic relied upon assumptions to determine the Amost likely@ cause of her injury, we hold the trial court did not abuse its discretion when it granted appellees= motion to dismiss. Appellants= first issue is overruled.

Were Appellants Entitled To A Thirty-Day Extension To Amend Their Report?

Article 4590i, section 13.01(d) required claimants to furnish an expert report within 180 days after the claim was filed. Article 4590i, section 13.01(g) gave trial courts the discretion to provide a thirty-day grace period to file an amended report if the failure to timely file an adequate report Awas not intentional or the result of conscious indifference but was the result of an accident or mistake.@

In their response to appellees= motion to dismiss, appellants included an alternative request for a thirty-day extension based upon their belief that Dr. Naponic=s report was adequate and, if not, contended that their failure to provide an adequate report was due to accident or mistake and not an intentional act or conscious indifference. Appellants= request was supported by the testimony of their trial counsel who stated that he contacted Dr. Naponic based upon the referral of a general surgeon, that he provided Dr. Naponic with the relevant records and caselaw, that they discussed this case, that Dr. Naponic indicated that it would be difficult to distinguish from the medical records which defendant caused the intraoperative injuries absent an admission, but that Dr. Naponic informed him that all the health care providers shared a duty to protect Kelly. Counsel testified that he relied upon Dr. Naponic, who was a board-certified obstetrician and gynecologist, to provide him with a sufficient report and that he believed Dr. Naponic had done so.

The Texas Supreme Court faced a similar situation in Walker, 111 S.W.3d at 56. There, as here, claimant=s counsel mistakenly believed that his expert=s report was sufficient. The supreme court comprehensively reviewed intermediate court decisions on Article 4590i, section 13.01(g) extensions, finding that some courts were erroneously holding that any mistake of law was sufficient to support an extension while others were impermissibly applying a standard that precluded an extension because of a mistake of law. Id. at 63-64. According to the supreme court, some B but not all B mistakes of law may negate a finding of intentional conduct or conscious indifference and, therefore, support an extension. The distinction turns on the knowledge and acts of the claimant. Id. at 64.

The supreme court concluded that counsel=s belief that his expert=s report was sufficient, despite clear statutory requirement to the contrary, Adoes not establish a >sufficient excuse= necessary to support a finding that a party made a mistake of law.@ Id. at 64-65. This follows because a medical malpractice claimant is charged with knowledge of Article 4590i, section 13.01 and its requirements. Id. Appellants distinguish Walker by alleging it involved a report which was absent the relevant standard of care and how the defendants breached that standard. Appellants contend that, if their report is inadequate, it is not because of the absence of a critical element but simply insufficient information.

The trial court is best positioned to assess what appellants knew and to evaluate their actions. The extent and quality of the information available to a medical-malpractice claimant will vary from case to case. That information directly impacts the report a good faith effort will produce. We have found that the trial court did not abuse its discretion when it held Dr. Naponic=s report was insufficient because Dr. Naponic failed to distinguish between the actions of the two doctors and because his analysis relies heavily on assumption. During oral argument, appellants= counsel pointed out that physicians are unlikely to admit to errors in their medical records and, therefore, that one cannot expect doctors to affirmatively state that they leaned on their patient during surgery. Even if we accept this as true, the medical records would contain information on the surgical equipment utilized, the manner in which the patient was positioned, and the surgery conducted. Because two different doctors operated on Kelly, their respective records would provide information unique to each doctor and their procedures. The trial court could have reasonably concluded that in this case appellants had the ability to distinguish between the actions of the two doctors and determine what surgical equipment and procedures were utilized and that their failure to do so precluded a thirty-day grace period.

The cases decided since Walker indicate that the trial court=s decision to grant or deny a thirty-day grace period when counsel argues that his mistaken belief that a report was sufficient constitutes a mistake of law, are afforded great deference due to their individual factual patterns. Compare In re Zimmerman, 148 S.W.3d 214, 217 (Tex. App.CTexarkana 2004, orig. pro-ceeding)(affirming the trial court=s decision to grant a thirty-day grace period based upon mistake of law) with Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.CDallas 2005, no pet.)(affirming the trial court=s decision to not grant a thirty-day grace period based upon a mistake of law).

We cannot say that the trial court abused its discretion when it denied appellants= request for a thirty-day grace period. Appellants= second issue is overruled.

Conclusion

The trial court did not abuse its discretion when it granted appellees= motion to dismiss and denied appellants= request for a thirty-day grace period. The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

March 23, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2005).

[2]In Palacios, the supreme court noted that, as a general rule, res ipsa loquitur does not apply in medical malpractice cases. 46 S.W.3d at 880. Consequently, an expert report must do more than simply assume that a health care provider is responsible for any surgical complication.