Kay Lopez and Mark Anthony Lopez v. Dr. Anil Kumar Sinha, M.D. & Dr. Phillip Seu, M.D.--Appeal from 270th District Court of Harris County

Affirmed and Memorandum Opinion filed September 19, 2006

Affirmed and Memorandum Opinion filed September 19, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00606-CV

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KAY DENICE LOPEZ and MARK ANTHONY LOPEZ, Appellants

V.

ANIL KUMAR SINHA, M.D. and PHILIP SEU, M.D., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 04-73131

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

Appellants, Kay Denice Lopez and Mark Anthony Lopez, appeal from the trial court=s orders dismissing their health care liability claims against appellees, Anil Kumar Sinha, M.D. and Philip Seu, M.D. The claims arose from complications following a cholecystectomy. Appellants contend the trial court erred by granting appellees= motions to dismiss after determining (1) appellants failed to timely serve an expert report, and (2) appellants= expert report did not represent an objective good faith effort to comply with the definition of expert report under section 74.351 of the Texas Civil Practice and Remedies Code. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Standard of Review

We review a trial court=s decision to grant or deny a motion to dismiss health liability claims under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex. App.CHouston [14th Dist.] 2005, pet. filed) (applying an abuse of discretion standard to determine whether the trial court properly dismissed health liability claims for failure to timely serve an expert report under section 74.351); Kendrick v. Garcia, 171 S.W.3d 698, 702B03 (Tex. App.CEastland 2005, pet. filed) (applying abuse of discretion standard to determine whether the trial court dismissed health liability claims because the expert report was inadequate under section 74.351); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877B78 (Tex. 2001) (determining courts should review the adequacy of an expert report for abuse of discretion standard under a former version of the statute).[1] A trial court abuses its discretion when it acts arbitrarily or without regard to any guiding principles. Mokkala, 178 S.W.3d at 70. We defer to the trial court=s factual determinations, but review questions of law, including questions of statutory interpretation, de novo. Id. Because of differences in the relevant facts, we will address the trial court=s orders dismissing the claims against each doctor separately.

II. Claims Against Dr. Sinha

With respect to Dr. Sinha, appellants contend the trial court erred by dismissing the claims for failure to timely serve an expert report under section 74.351(a). The former version of section 74.351(a) applicable to this case provided as follows:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party=s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.

Act of June 2, 2003, 78th Leg., R.S., ch. 204 ' 10.09, 2003 Tex. Gen. Laws 884 (amended 2005) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp. 2006)) (emphasis added).

Appellants filed their original petition in Brazoria County on June 7, 2004, but venue was later transferred to Harris County. Appellants concede they served their expert report on Dr. Sinha over 120 days after they had filed their claims in Brazoria County. However, appellants contend a motion to transfer venue operates to restart the 120-day period. We disagree.

When a motion to transfer venue is granted, the case stands as though it had been originally filed in the transferee county. Whitson v. Harris, 792 S.W.2d 206, 209 (Tex. App.CAustin 1990, writ denied). Moreover, here, the 120-day period expired approximately two weeks before the trial court granted the order to transfer venue.

Nonetheless, appellants maintain the 120-day period was tolled because the motion to transfer venue was filed one day before the 120-day period would have otherwise expired. Appellants do not cite any authority supporting their contention that the expert report deadline or any other deadline is tolled upon the filing of a motion to transfer venue. With respect to discovery in general, the Texas Rules of Civil Procedure provide that Adiscovery shall not be abated or otherwise affected by pendency of a motion to transfer venue.@ Tex. R. Civ. P. 88. In the absence of any authority to the contrary, we conclude that a motion to transfer venue also has no effect on the deadline to serve an expert report.

Alternatively, appellants argue that a new 120-day period began either when the motion was granted or when the case was refiled in Harris County. See Tex. R. Civ. P. 89 (requiring the plaintiff to pay a new filing fee to the court in the transferee county). Appellants contend the original claims are dismissed or nonsuited, and a new suit begins when a motion to transfer venue is granted and the suit is refiled. However, Rule 89 of the Texas Rules of Civil Procedure provides a cause of action Ashall not be dismissed@ if a motion to transfer venue is sustained. Tex. R. Civ. P. 89. Therefore, appellants= contention that a motion to transfer venue operates as a nonsuit or dismissal is unavailing. Cf. Mokkala, 178 S.W.3d at 66 (holding the 120-day period was not restarted after plaintiffs nonsuited and refiled their claims).

Appellants also analogize a transfer of venue to removal of a case to federal court with diversity or federal-question jurisdiction. See 28 U.S.C. ' 1331 (2000) (granting federal courts original jurisdiction of all civil cases arising under the Constitution, laws, or treaties of the United States); 28 U.S.C. ' 1332 (2000) (granting federal courts original jurisdiction when the amount in controversy exceeds $75,000 and diversity of citizenship is established). However, unlike removal to federal jurisdiction, the Texas Civil Practice and Remedies Code and the Texas Rules of Civil Procedure continue to govern claims when venue is transferred. As discussed above, the Texas Civil Practice and Remedies Code provides that an expert report must be filed 120 days after the date a health care liability claim is filed. Act of June 2, 2003, 78th Leg., R.S., ch. 204 '10.09, 2003 Tex. Gen. Laws 884 (amended 2005). A Ahealth care liability claim@ is defined in relevant part as Aa cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care . . . .@ Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(13) (Vernon 2005). Further, under the Rules of Civil Procedure, discovery is not abated or otherwise affected by a motion to transfer venue, and the claims are not dismissed when the motion is sustained. Tex. R. Civ. P. 88, 89.

Here, appellants filed their health care liability claims in Brazoria County. Appellants did not amend their petition at any time to add new claims. Cf. Puls v. Columbia Hosp. at Medical City Dallas Subsidiary, L.P., 92 S.W.3d 613, 617B18 (Tex. App.CDallas 2002, pet. denied) (holding the 120-day period for serving an expert report was triggered by filing a particular health care liability claim as opposed to a lawsuit; thus, if a plaintiff amends the petition to add a new claim, another 120-day period begins). Accordingly, we conclude that the 120-day period here expired 120 days from date the claims were filed in Brazoria County, and not the date the petition was refiled in Harris County asserting the same claims. To hold otherwise would be inconsistent with the plain meaning of the statute and with the legislative objective to reduce the frequency and costs of health care liability claims. See Mokkala, 178 S.W.3d at 74 (discussing the legislative history and objectives of section 74.351). Because appellants failed to serve an expert report on Dr. Sinha within 120 days of filing their claims, the trial court properly granted Dr. Sinha=s motion to dismiss. Accordingly, we overrule appellants= issues as they relate to Dr. Sinha.

III. Claims Against Dr. Seu

With respect to Dr. Seu, appellants contend the expert report was timely served because Dr. Seu was not served with the original petition until the trial court granted a motion for substitute service after venue was transferred to Harris County. However, we need not determine whether appellants timely served the expert report. Even if appellants timely served the expert report, the report did not represent an objective good faith effort to comply with the definition of an expert report. See Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(l) (Vernon 2005).

A trial court Ashall 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 . . . .@ Id. An expert report is defined as Aa written report by an expert that provides 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 injury, harm, or damages claimed.@ Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(6) (Vernon 2005).

To constitute a good-faith effort, an expert report must provide enough information to fulfill two purposes: (1) the report must inform the defendant of the specific conduct called into question; and (2) the report must provide a basis for the trial court to conclude the plaintiff=s claims have merit. Palacios, 46 S.W.3d at 879. The expert report must include all the required information within its four corners. Id. at 878. Although the report Aneed not marshal all the plaintiff=s proof,@ a report that merely states an expert=s conclusions about the standard of care, breach, and causation is insufficient. See id. at 878B79.

The portion of appellants= expert report relevant to Dr. Seu is as follows:

The standard of practice for the management of a post cholecystectomy bile leak includes complete evacuation of the intraabdominal bile to prevent corrosive effects of the bile and subsequent potential infection. Failure to completely evacuate a primary or recurrent biloma in the gallbladder fossa can lead to significant injury to adjacent structures. Stricture from extrinsic compression, inflammation, and fibrosis is well known to occur. A stricture can be multifactorial as in this patient including operative injury, the result of undrained bile and infection in the gallbladder fossa and porta hepatis area, and potential ischemia from use of cautery on the duct itself.

The patient=s clinical course is due to a combination of preventable error in technique at the time of March 29, 2002 cholecystectomy, as well as failure to aggressively and completely evacuate bile that leaked into the abdominal cavity. Dr. Anil Sinha fell below the standard of practice in the performance of surgery of 3/29/04. Dr. Philip Seu fell below the standard of care in the management of this patient=s bile leak. In all probability, but for these violations of the standard of care the subsequent interventions and surgical procedure would not have been necessary.

Appellants contend the standard of care applicable to Dr. Seu Aincludes the complete evacuation of the intra-abdominal bile . . .,@ and Dr. Seu breached this standard of care by failing to manage the bile leak, including Aaggressively and completely@ evacuating the bile. However, these statements are conclusory. The expert report does not include Aspecific information about what the defendant should have done differently.@ See id. at 880. Rather, the expert provides a resultCcomplete evacuation of bile Cwithout explaining the specific conduct necessary to achieve the result. There is no description of the procedure that should be followed when evacuating bile from an abdominal cavity, and there is no explanation as to how Dr. Seu failed to follow the procedure or what Dr. Seu should have done differently. Cf. id. (holding an expert=s statement that a hospital failed to take appropriate precautions to prevent a patient=s fall was conclusory because there was no information indicating whether the hospital should have Amonitored [the patient] more closely, restrained him more securely, or done something else entirely@); Hightower v. Saxton, 54 S.W.3d 380, 384B85 (Tex. App.CWaco 2001, no pet.) (expert=s statement that surgeon=s incorrect reading of an MRI scan fell below the standard of care insufficient to establish standard of care and breach because the report Afailed to inform the manner in which [the surgeon] failed to meet any unstated standard of care@). Accordingly, we conclude the trial court could have reasonably determined the statements concerning standard of care and breach were conclusory and did not represent an objective good-faith effort.

The report also fails to provide any information linking Dr. Seu=s specific conduct with the plaintiff=s injuries. Appellants primarily rely on the following two statements to establish causation: (1) AIn all probability, but for these violations of the standard of care the subsequent interventions and surgical procedure would not have been necessary@; and (2) AA stricture can be multifactorial as in this patient including operative injury, the result of undrained bile and infection in the gallbladder fossa and porta hepatis area, and potential ischemia from use of cautery on the duct itself.@

Again, however, the statements as to causation are conclusory. There is no explanation as to what role Dr. Seu=s specific conduct played in causing the subsequent interventions. There is also no indication as to which of the multiple subsequent interventions and/or surgical procedure was caused by Dr. Seu=s conduct. Although the expert listed several potential problems that can occur when bile is not completely evacuated, the expert did not specify whether appellant experienced all or some of those problems. The expert appears to indicate appellant experienced a stricture caused in part by unevacuated bile, but the expert does not describe what connection, if any, the stricture had with respect to the subsequent interventions allegedly necessary because of Dr. Seu=s conduct. See Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 53B54 (Tex. 2002) (finding no abuse of discretion when the report=s statement as to causation was conclusory and did not identify the specific injuries allegedly caused by the defendant); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (noting an expert Amust explain the basis of his statements to link his conclusions to the facts@). Accordingly, we conclude the trial court could have reasonably determined the report does not represent a good-faith effort to summarize the causal relationship between Dr. Seu=s specific conduct and appellants= injuries. Cf. Bowie, 79 S.W.3d at 52B54 (expert=s statement that Aif the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then [plaintiff] would have had the possibility of a better outcome@ insufficient to establish causation); Hightower, 54 S.W.3d at 384B85 (Tex. App.CWaco 2001, no pet.) (expert=s statement that surgeon=s failure to correctly read an MRI scan Acaused damages and delay of treatment@ insufficient to establish causation).

When reviewing matters within the trial court=s discretion, we must not substitute our judgment for the trial court=s judgment. Bowie, 79 S.W.3d at 52. Because the statements in the report with respect to the standard of care, breach, and causation are conclusory, we cannot conclude the trial court abused its discretion by determining the report does not represent an objective good-faith effort to comply with the statutory requirements. The trial court properly granted Dr. Seu=s motion to dismiss. Accordingly, we overrule appellants= issues as they relate to Dr. Seu.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 19, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

[1] At least one court of appeals has expressed doubt as to whether the abuse of discretion standard applicable under the former statute continues to apply. See Kendrick, 171 S.W.3d at 702B03. However, courts have consistently applied the abuse of discretion standard to the current statute; therefore, in the absence of contrary authority, we also review the trial court=s ruling for abuse of discretion. See, e.g., id; Mokkala 178 S.W.3d at 70; In re Covenant Health Sys., No. 07-05-0462-CV, 2006 WL 508027, at *1 (Tex. App.CAmarillo Mar. 1, 2006, no pet.).