JAMES HOFFMAN AND BRUCE CARPENTER v. TINA SAMPLES

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Court of Appeals of Texas, Waco.

JAMES HOFFMAN, M.D. AND BRUCE CARPENTER, M.D., Appellants v. TINA SAMPLES, Appellee

No. 10-17-00196-CV

Decided: October 04, 2017

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

In four issues, appellants, James Hoffman, M.D., and Bruce Carpenter, M.D., argue that the trial court erred in refusing to dismiss a medical-malpractice lawsuit filed by appellee, Tina Samples. Specifically, appellants contend that: (1) appellee's emergency-medical expert was unqualified to opine on causation; (2) the causation opinions contained in appellee's expert reports as to both doctors are conclusory and contain analytical gaps; and (3) vague statements in one expert report did not sufficiently establish a breach of the standard of care. Because we overrule all of appellants' issues, we affirm the order of the trial court.

I. BACKGROUND

Appellee filed healthcare-liability claims against Drs. Hoffman and Carpenter, among others, pertaining to their treatment of her severe heart attack that ultimately required her to have a heart transplant. In particular, appellee alleged the following as to appellants:

Dr. Bruce Carpenter breached [the] standard of care by failing to admit Tina Samples to the hospital to rule out myocardial infarction. This was a patient with significant, uncontrolled chest pain and multiple risk factors to include obesity, untreated hyperlipidemia, significant family history of coronary artery disease in her father, hypertension on exam, hyperglycemia, and probable metabolic syndrome (later confirmed). High risk patients should be admitted and rule-out myocardial infarction protocol initiated. Failure to control pain even with a negative work-up warrants immediate cardiology consultation regarding possibility of acute coronary syndrome.

Dr. James Hoffman breached [the] standard of care by failing to provide a proper cardiac treatment and work-up plan as outlined in the standard of care section above. There was no repeat ECG and no repeat troponin blood test. Tina Samples deserved a proper cardiac work-up and, if initially negative, an admission to the hospital with initiation of the rule-out myocardial infarction protocol. Failure to control pain even with a negative work-up warrants immediate cardiology consultation regarding the possibility of acute coronary syndrome.

Both doctors filed answers generally denying the allegations contained in appellee's original petition.

Subsequently, appellee timely served on appellants the expert reports of David M. Ross, M.D., M.B.A, and Michael Rothkopf, M.D. Included with these reports was the curriculum vitae of the doctors. Appellants filed joint objections and motions to dismiss appellee's expert reports, asserting that the reports were insufficient as to the standard of care, breach of the standard of care, and causation elements. Additionally, appellants argued that Dr. Ross is unqualified to opine on causation because, among other things,

there is no evidence contained within Dr. Ross' report or curriculum vitae to suggest that he has the specialized knowledge, education, training[,] or experience necessary to testify regarding the patient's complex cardiac condition including the mechanisms by which the patient was having cardiac distress, how the preexisting comorbidities affect progression of a patient with cardiac distress, or what specific treatments were available for this patient and the likelihood of their success in preventing the injuries claimed by the patient.

The trial court granted appellants' objections to appellee's expert reports; however, the trial court also granted appellee a thirty-day extension to provide amended or supplemental reports.

Thereafter, appellee filed amended expert reports of Drs. Ross and Rothkopf. Once again, appellants filed joint objections and motions to dismiss appellee's expert reports, asserting substantially-similar arguments as those raised earlier, including the challenge to the qualifications of Dr. Ross to opine on causation. After a hearing, the trial court denied appellants' objections to the expert reports of Drs. Ross and Rothkopf and appellants' motions to dismiss. This accelerated, interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2016) (authorizing an interlocutory appeal from the denial of “all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351 ․”).

II. STANDARD OF REVIEW

We review all rulings related to Section 74.351 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard. Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Although we defer to the trial court's factual determination, we review questions of law de novo. See Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also Hillcrest Baptist Med. Ctr. v. Dixon, No. 10-12-00396-CV, 2013 Tex. App. LEXIS 8565, at **4-5 (Tex. App.—Waco July 11, 2013, no pet.) (mem. op.). A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. See Poland v. Orr, 278 S.W.3d 39, 45 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Dixon, 2013 Tex. App. LEXIS 8565, at *5. An abuse of discretion occurs if the trial court fails to correctly apply the law to the facts or if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Haskell, 363 S.W.3d at 757 (citing Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas 2010, no pet.)).

III. THE HEALTHCARE-LIABILITY STATUTE

A plaintiff who asserts a health-care-liability claim, as defined by Chapter 74, must provide each defendant physician or health-care provider with an expert report which provides “a fair summary of the expert's opinions” as of the date of the report regarding the applicable standards of care, the manner in which the care rendered failed to meet the applicable standards, and the causal relationship between that failure and the claimed injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6) (West 2017); see also Dixon, 2013 Tex. App. LEXIS 8565, at **5-6. “The purpose of the expert report requirement is to deter frivolous claims, not to dispose of the claims regardless of their merits.” Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011).

When a plaintiff timely files an expert report and a defendant moves to dismiss on the basis that the report is insufficient, the trial court must grant the motion only if the report does not represent a good-faith effort to meet the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); see also Dixon, 2013 Tex. App. LEXIS 8565, at *6. To constitute a good-faith effort, a report “must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875; see Wright, 79 S.W.3d at 52.

A report cannot merely state the expert's conclusions about these elements; instead, the report must explain the basis of the statements and link the conclusions to the facts. Wright, 79 S.W.3d at 52; see Jelinek, 328 S.W.3d at 539-40. A report that merely states the expert's conclusions about the standard of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879. Further, a report that omits any of the statutory elements is likewise deficient. Id. In determining whether the trial court's ruling on a motion to dismiss was correct, we review the information contained within the four corners of the report. Wright, 79 S.W.3d at 53. “The report can be informal in that the information in the report does not have to meet the same requirements as evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879.

Furthermore, reports may be considered together in determining whether a health-care-liability claimant provided a report meeting the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see also Salais v. Tex. Dep't of Aging & Disability Servs., 323 S.W.3d 527, 534 (Tex. App.—Waco 2010, pet. denied). A single report need not “address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i); see, e.g., Dixon, 2013 Tex. App. LEXIS 8565, at *11 n.2. But read together, the reports must provide a “fair summary” of the experts' opinions. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see Barber v. Mercer, 303 S.W.3d 786, 791 (Tex. App.—Fort Worth 2009, no pet.); Walgreen Co. v. Hieger, 243 S.W.3d 183, 187 n.2 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

IV. THE QUALIFICATIONS OF APPELLEE'S EMERGENCY-MEDICAL EXPERT

In their first issue, appellants assert that Dr. Ross is not qualified to render any opinions on causation because his expert report and accompanying curriculum vitae fail to demonstrate substantial training, knowledge, education, or experience treating patients with progressive heart disease. We disagree.

A. Applicable Law

Section 74.351(r)(5) of the Texas Civil Practice and Remedies Code provides that an “expert” in a health-care liability claim is:

(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence ․

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). Furthermore, section 74.403(a) states, in relevant part, that:

[I]n a suit involving a health care liability claim against a physician or health care provider, 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.

Id. § 74.403(a) (West 2017).

Both sections 74.351(r)(5) and 74.403(a) require that expert witnesses comply with the Texas Rules of Evidence. Texas Rule of Evidence 702, which governs the testimony of expert witnesses, states that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

TEX. R. EVID. 702.

The Texas Supreme Court has stated that a professional need not be employed in the particular field about which he is testifying so long as he can demonstrate that he has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify him to give an opinion on that subject. Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.402 (listing the requirements for an expert to be considered qualified in a suit against a health-care provider); see also TEX. R. EVID. 702. “[W]hen a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields.” Broders, 924 S.W.2d at 154.

Qualifications of an expert must appear in the expert reports and curriculum vitae and cannot be inferred. See Salais, 323 S.W.3d at 536; see also Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex. App.—Fort Worth 2009, no pet.) (citing Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex. App.—San Antonio 2004, pet. denied)). Analysis of the expert's qualifications under section 74.351 is limited to the four corners of the expert reports and the expert's curriculum vitae. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a); In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex. 2008) (considering an expert's curriculum vitae and report in determining whether the expert was qualified to opine about plaintiff's negligent-credentialing cause of action); Polone v. Shearer, 287 S.W.3d 229, 238 (Tex. App.—Fort Worth 2009, no pet.); see also Lewis v. Funderburk, No. 10-05-00197-CV, 2008 Tex. App. LEXIS 9761, at *6 (Tex. App.—Waco Dec. 31, 2008, pet. denied) (mem. op.).

Merely being a physician is insufficient to qualify as a medical expert. See Broders, 924 S.W.2d at 152; see also Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex. App.—Amarillo 2002, no pet.) (“Every licensed doctor is not automatically qualified to testify as an expert on every medical question.”). But we defer to the trial court on close calls concerning an expert's qualifications. See Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006); see also Broders, 924 S.W.2d at 151 (“The qualification of a witness as an expert is within the trial court's discretion. We do not disturb the trial court's discretion absent clear abuse.”).

B. Discussion

In his amended expert report, Dr. Ross indicated that he is a Medical Director and Trauma Program Director for a hospital Emergency Department. Additionally, Dr. Ross stated that he has special qualifications in interpreting electrocardiogram tracings from emergency rooms, cardiac-life-support training, and continuing experience as an emergency-room physician. Additionally, Dr. Ross has performed elective cardioversions and supervised cardiac stress tests. Dr. Ross further opined that he is familiar with the presentation, work-up, treatment, and clinical course of emergency-department patients who present with chest pain. Moreover, Dr. Ross has “transferred many of his patients for definitive interventional cardiology care from the office, from the emergency room, from the inpatient setting and from the cardiac stress testing suite.”

As noted above, in her original petition, appellee criticized Dr. Hoffman for failing to provide her a proper cardiac treatment and work-up plan and an admission to a hospital to rule out a myocardial infarction. She also asserted that Dr. Carpenter breached the standard of care by failing to admit her to a hospital to rule out a myocardial infarction. Based on our review of Dr. Ross's expert report, we conclude that it demonstrates that he is qualified to opine on the causation issue involved in this case—whether the delay in treatment caused appellee's cardiac damage. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403; TEX. R. EVID. 702; see also Broders, 924 S.W.2d at 153. Accordingly, we cannot say that the trial court clearly abused its discretion by implicitly concluding that Dr. Ross is qualified to give an opinion on causation in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.403; TEX. R. EVID. 702; see also Larson, 197 S.W.3d at 304-05; Broders, 924 S.W.2d at 153. We therefore overrule appellants' first issue.

V. BREACH OF THE STANDARD OF CARE

In their fourth issue, appellants contend that Dr. Rothkopf's amended expert report contains vague statements that are insufficient to establish the element of breach of the standard of care as to Dr. Carpenter. A review of Dr. Rothkopf's amended expert report shows that he did not address the standard of care or any breach thereof as to Dr. Carpenter. Rather, Dr. Rothkopf's amended expert report focuses on “whether earlier diagnosis and treatment could have averted the severe cardiac damage that led to the need for heart transplantation.”

Moreover, it is the amended expert report of Dr. Ross, not Dr. Rothkopf, that addresses the standard-of-care and breach-of-the-standard-of-care elements as to Dr. Carpenter. And finally, appellants' complaints about Dr. Ross on appeal are limited to his causation opinion. Accordingly, we cannot say that the trial court abused its discretion in denying appellants' objections and motions to dismiss Dr. Rothkopf's amended expert report based on the purported vague statements as to the breach-of-the-standard-of-care element. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Jelinek, 328 S.W.3d at 538-39; Palacios, 46 S.W.3d at 877. We overrule appellants' fourth issue.

VI. APPELLEE'S EXPERT REPORTS REGARDING CAUSATION

In their second and third issues, appellants complain that appellee's amended expert reports are conclusory and contain analytical gaps and, thus, do not sufficiently establish causation.1 Once again, we disagree.

In his amended expert report, Dr. Ross outlined the standard of care as follows:

The standard of care in this case with a patient presenting with chest pain and risk factors to include obesity, untreated hyperlipidemia, hypertension, and a family history of premature coronary disease is outlined as follows:

Immediate needs: Simultaneous administration of supplemental oxygen and aspirin, establish intravenous access and give sub-lingual nitroglycerin. Order a stat ECG, chest x-ray, and a cardiac panel to include troponin and d-dimer. Control pain and/or anxiety with titrated intravenous morphine and/or anxiolytic medication. If unable to control pain and suspicion of acute coronary syndrome continues to be high[,] consider nitroglycerin drip. If the ECG demonstrates significant ST changes or obvious acute MI or the troponin is abnormally high[,] activate a STEMI transfer to interventional cardiology for angiogram while giving thrombolytic medication as per preference of the receiving facility. If ECG and troponin are normal[,] but the patient is high risk with uncontrolled pain[,] consult cardiology regarding the possibility of acute coronary syndrome.

If the ECG is normal, the troponin is negative, d-dimer is normal, other lab work does not indicate a diagnosis for the chest pain, the chest x-ray is normal, and pain is controlled[,] the plan should be as follows: admit the patient to critical care with telemetry on supplemental oxygen, control pain, provide GI prophylaxis and perform serial cardiac enzymes (troponin). Troponin is a definitive marker for cardiac injury and cell death, and thus the gold standard for diagnosing myocardial infarction. If serial troponin tests are elevated[,] then transfer to interventional cardiology is warranted. If all testing is normal[,] the patient should have a stress test prior to discharge. If the stress-test is abnormal[,] transfer to interventional cardiology. If the stress test is normal[,] the patient may be discharged with arrangements for close primary care follow-up.

With regard to the breach-of-the-standard-of-care element as to Drs. Carpenter and Hoffman, Dr. Ross noted the following:

On 8/16/15[,] Dr. Bruce Carpenter breached [the] standard of care by failing to admit Tina Samples to the hospital to rule out myocardial infarction. This was a patient with significant, uncontrolled chest pain and multiple risk factors to include obesity, untreated hyperlipidemia, significant family history of coronary artery disease in her father, hypertension on exam, hyperglycemia, and probable metabolic syndrome (later confirmed). High risk patients should be admitted and rule-out myocardial infarction protocol initiated. This requires cardiac monitoring and serial troponin testing because troponin takes from four to eight hours to elevate, following cardiac damage. Thus, an isolated instance of normal troponin does not provide reassurance when other symptoms are present. Failure to control pain even with a negative work-up warrants immediate cardiology consultation regarding the possibility of acute coronary syndrome.

Regarding the breach-of-the-standard-of-care element as to Dr. Hoffman, Dr. Ross stated:

On 8/24/15[,] Dr. James Hoffman breached [the] standard of care by failing to provide a proper cardiac treatment and work-up plan as outlined in the standard of care section above. There was no repeat ECG and no repeat troponin blood test. Tina Samples deserved a proper cardiac work-up and, if initially negative, an admission to the hospital with initiation of the rule-out myocardial infarction protocol. Failure to control pain even with a negative work-up warrants immediate cardiology consultation regarding the possibility of acute coronary syndrome.

Additionally, Dr. Ross provided the following explanation as to the causation element:

Due to the multiple breaches of the standard of care outlined above, critical delays in the diagnosis of cardiac ischemia later evolved into a myocardial infarction with irreparable damage to the patient's myocardium. Tina was evaluated for complaints of chest pain on 8/16/15, 8/19/15 and twice on 8/24/15 finally receiving proper care on the visit to Baylor All Saints on 8/25/15. The time delay from the gastroenterology appointment at 1 p.m. on 8/24/15 through the second Glen Rose ER visit until triage at Baylor All Saints was just over twenty three hours. Tina Samples on 8/25/15 was diagnosed with an acute LAD distribution myocardial infarction with severe elevations of the cardiac marker troponin. At cardiac catheterization, which occurred within an hour of triage at Baylor All Saints, Tina's heart was severely impaired as evidenced by her markedly reduced ejection fraction of 20%. (A normal ejection fraction ranges from 55-70%. The ejection fraction is the percentage of the total amount of blood in the left ventricle that is pumped out with each heartbeat. A damaged heart muscle is able to pump less blood.)

Although her troponin level was normal on both 8/16 and 8/19, Tina's others symptoms on those occasions suggest that she was suffering cardiac ischemia. A cardiac event more likely than not was already underway, though a full infarction had not yet occurred. The goal of early hospitalization, monitoring, and testing, as well as administration of nitrates or blood thinners and consideration of surgical intervention, is to prevent ischemia from progressing to infarction. Because neither Dr. Carpenter nor NP Ross recognized the seriousness of Tina's condition, they failed to take action to have her hospitalized for further testing and treatment. Timely action in this regard, in reasonable probability, would have resulted in her having a stent put in place that would have prevented her ischemia from becoming an infarction and greatly lessened the damage to her heart. Because neither Dr. Carpenter nor NP Ross took timely action, thus caused a delay in the diagnosis and administration of treatment, and Tina progressed to a massive myocardial infarction with enormous damage to her heart tissue.

In reasonable probability, Tina's myocardial infarction occurred some time between 8/19 and 8/24. We know this because her troponin was markedly elevated on 8/25 when it was finally re-checked at Baylor All Saints. When an infarction occurs, the heart muscle cells are deprived of oxygen and gradually die. The longer the blockage continues untreated, the worse the damage. On 8/24, when Tina saw NP Waddle and Dr. Hoffman, respectively, she may still have been suffering ischemia or she may have already been suffering myocardial infarction. Damage was either soon to occur or was already occurring, and, in such instances, restoring proper blood flow to affected tissues is absolutely necessary to prevent additional, continuing, and likely permanent damage from occurring. Very notably, Dr. Hoffman could have, but failed to, order ECG or a measure of troponin. Given that Tina's troponin level was so significantly elevated when it finally was measured at Baylor All Saints, more likely than not it was already elevated when she saw Dr. Hoffman and would have demonstrated infarction.

When infarction is already present, one of the goals of any healthcare provider must be to re-establish blood flow as quickly as possible in order to limit heart damage. Again, this can be done only in a hospital setting, and the goal is to have the patient in a cardiac catheterization lab within one hour. Failure to take action to ensure that the patient's needs are addressed within an hour increases the likelihood of permanent damage. Because neither NP Waddle nor Dr. Hoffman acted to send this patient for cardiac work-up, cardiac consultation, or emergency treatment, and Dr. Hoffman specifically failed to order ECG or troponin level, which would have revealed infarction, her condition was allowed to progress and worsen either to infarction or to greater damage caused by an already present infarction. NP Waddle's and Dr. Hoffman's failure to adhere to the standard of care consequently resulted in delay to the detection and treatment of Ms. Samples' cardiac condition.

Because of the damage caused by a failure to diagnose and treat her cardiac condition, Tina Samples suffered irreparable heart damage, and the patient has gone on to require, not only the temporary use of a life-vest defibrillator, but a heart transplant. Had the standard of care been followed, to a reasonable degree of medical certainty Tina [S]amples would have avoided irreparable damage to her myocardium and subsequent devastating consequences.

Confining our review to the four corners of appellee's expert reports, see Wright, 79 S.W.3d at 53, we believe that Dr. Ross adequately articulated a causal link between the purported failures of Drs. Hoffman and Carpenter to properly diagnose and treat appellee's cardiac condition and the resulting irreparable heart damage suffered by appellee. See id. at 52; see also Jelinek, 328 S.W.3d at 539-40; Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). Accordingly, we conclude that appellee's expert reports informed appellants of the specific conduct called into question and provided a basis for the trial judge to conclude that the claims have merit. See Palacios, 46 S.W.3d at 879. And as such, we hold that appellee's expert reports constitute a good-faith effort to comply with section 74.351 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); see also Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 875. Therefore, based on the foregoing, we cannot conclude that the trial court clearly abused its discretion in denying appellants' objections and motion to dismiss. See Jelinek, 328 S.W.3d at 538-39; Palacios, 46 S.W.3d at 877. We overrule appellants' second and third issues.

VII. CONCLUSION

Having overruled all of appellants' issues, we affirm the order of the trial court.

FOOTNOTES

1.   As mentioned above, appellee provided the amended expert reports of Drs. Ross and Rothkopf. In particular, Dr. Rothkopf's expert report addressed the causation element, though the report does not specifically mention either Dr. Carpenter or Dr. Hoffman in that analysis. Dr. Ross's expert report, on the other hand, specifically addressed the essential elements as to both Drs. Carpenter and Hoffman. Accordingly, we will focus on Dr. Ross's expert report.

AL SCOGGINS Justice