Blake Smith, M.D., Baylor Scott & White Health System, Baylor Regional Medical Center at Grapevine, Texas Heart Hospital of the Southwest LLP D/B/A the Heart Hospital Baylor Plano and Richard Feingold, D.O. v. Harry Johnson and Lynn Johnson
05-16-01261-CV
Tex. App.Jul 26, 2017Background
- Plaintiff Harry Johnson suffered an aortic thrombus and cardiac arrest, was resuscitated at Baylor Grapevine, and later lost his left leg after delayed recognition/treatment of limb ischemia.
- Emergency physicians (Dr. Smith and consultant Dr. Feingold) initially stabilized Johnson; femoral pulses/cold extremities were documented during the morning.
- A vascular/thoracic surgeon (Dr. Roughneen) was contacted ~11:50 a.m., accepted the consult and ordered CT angiography, but his consult was later cancelled when Baylor personnel attempted to transfer Johnson to Heart Hospital.
- Heart Hospital initially accepted the transfer but later reported no bed available; Roughneen returned, assessed Johnson, and performed surgery beginning ~4:04 p.m.; by then ischemic damage required amputation.
- Plaintiffs served expert reports by Dr. Roughneen (surgeon) and J. Kevin Moore (MHA, JD). Defendants moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351, arguing the reports were inadequate (insufficient causation, breach specifics, and expert qualifications).
- The trial court overruled defendants’ objections and denied dismissal; defendants appealed. The court of appeals affirmed, finding the amended reports were a good‑faith effort meeting the statutory requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Expert qualification (Dr. Roughneen to opine on ED care) | Roughneen is qualified by training/experience to opine on recognition of vascular compromise and interfacility transfer issues | Smith: Roughneen (thoracic surgeon) lacks qualification to opine on emergency‑department standards for an ED physician | Court: No abuse of discretion — specialty mismatch not disqualifying where expert shows relevant knowledge, training, experience (statutory §74.401(c)) |
| Specificity of breach (did report identify Smith’s specific negligent acts?) | Roughneen’s amended report identified facts (records, notes, calls, cancelled consult, attempted transfer) linking specific conduct to alleged breaches | Smith: Report lacks factual detail about Smith’s actual conduct and timing to support alleged breaches | Court: Report, read with Moore where relied upon, sufficiently informed defendants of specific challenged conduct — good‑faith effort under §74.351 |
| Causation (did report sufficiently explain how delay caused amputation?) | Roughneen explained a ~6‑hour salvage window, tied chronology, and opined cancelled consult/aborted transfer delayed surgery beyond that window causing loss of limb | Smith: Opinions are conclusory/speculative; report fails to show timing/etiology of occlusion and quantify delay attributable to Smith | Court: Amended report links facts to opinion, explains how delays moved surgery outside the salvage window; causation not merely conclusory — affirmed |
| Adequacy of Moore’s report and use of non‑physician reports for causation | Plaintiffs rely on Roughneen for causation; Moore supplies institutional/policy breaches and timeline; Roughneen may rely on Moore | Baylor/Feingold: Moore (non‑physician) cannot render causation; reports are speculative | Court: Moore cannot himself satisfy §74.403 causation requirement, but §74.351(i) permits multiple experts; Roughneen (physician) may rely on Moore; overall reports satisfy §74.351 — affirmed |
Key Cases Cited
- Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015) (standard of review and expert‑report causation requirements under TMLA)
- Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (definition and required contents of an expert report)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (expert must explain basis linking conclusions to facts)
- Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (qualification of medical expert; specialty not always required)
- Tenet Hosps. Ltd. v. Barajas, 451 S.W.3d 535 (Tex. App.—El Paso 2014) (experts from different specialties may testify if they have practical knowledge of customary conduct)