Steven Douglas Pedro, M.D. v. Sherrie R. Lake
02-16-00487-CV
| Tex. App. | Sep 28, 2017Background
- Plaintiff Sherrie Lake sued dermatologist Dr. Steven Pedro for medical malpractice alleging he removed the wrong lesion in November–December 2013 and failed to diagnose/timely treat a basal cell carcinoma that was later excised in June 2014.
- Lake served an expert report by dermatologist Dr. Schield Wikas stating (1) Pedro biopsied a "right neck" lesion in Nov. 2013 and excised a lesion in Dec. 2013 with pathology "healing biopsy site… totally excised," (2) a distinct basal cell carcinoma on the right posterior/occipital scalp was biopsied in Jan. 2014 and excised in June 2014, and (3) Pedro fell below the standard of care by failing to diagnose the adjacent carcinoma.
- Pedro objected that the report failed to state applicable standard of care, breach, causation, and injury; the trial court initially sustained objections but gave Lake 30 days to cure.
- Lake filed a one-sentence supplement: "In summary, Dr. Pedro removed the incorrect lesion on Sherrie Lake." Pedro renewed objections and moved to dismiss; the trial court overruled objections and denied dismissal.
- The court of appeals reviewed whether the report (including the supplement) met the statutory expert-report requirements to show standards, breach, and causation.
- The court held the report was internally inconsistent and failed to explain causation (e.g., whether the June 2014 lesion existed or was diagnosable in Nov.–Dec. 2013 or how delay caused the claimed harms), reversed denial of dismissal, rendered dismissal with prejudice, and remanded for fee assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lake’s expert report sufficiently set out applicable standard of care, breach, and causation under Tex. Civ. Prac. & Rem. Code § 74.351 | Wikas’s report (with supplement) shows Pedro failed to diagnose/treat a carcinoma adjacent to his biopsy/excision and that this breach caused delay, emotional and financial harm | The report is conclusory, internally inconsistent (saying lesion was "totally excised" yet also that Pedro removed the wrong lesion), and fails to explain how any alleged breach caused the June 2014 surgery or damages | Report inadequate: court reversed denial of dismissal, rendered dismissal with prejudice because the four-corners report did not link facts to conclusions or explain causation |
Key Cases Cited
- Merry v. Wilson, 498 S.W.3d 270 (Tex. App.—Fort Worth 2016) (purpose of § 74.351 expert report is to inform defendant of specific challenged conduct and show claim merits)
- Farishta v. Tenet Healthsys. Hosps. Dallas, Inc., 224 S.W.3d 448 (Tex. App.—Fort Worth 2007) (expert report must demonstrate causation beyond conjecture)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (trial court’s § 74.351(c) extension discretion guided by eliminating frivolous claims and preserving meritorious ones)
- Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) (expert report must explain basis of opinions, not merely state conclusions)
- Windsor v. Maxwell, 121 S.W.3d 42 (Tex. App.—Fort Worth 2003) (opinion must link conclusions to facts)
- Estorque v. Schafer, 302 S.W.3d 19 (Tex. App.—Fort Worth 2009) (expert must explain how an alleged breach was a substantial factor causing harm)
- Foster v. Richardson, 303 S.W.3d 833 (Tex. App.—Fort Worth 2009) (rejecting report that failed to explain how earlier alleged misdiagnosis caused need for later treatment)
- Polone v. Shearer, 287 S.W.3d 229 (Tex. App.—Fort Worth 2009) (expert reports sufficient where expert links delay to progression and treatment consequences)