*1 CAVIGLIA, M.D., Roy Fortunato John
Perez-Benavides, M.D., Ber- and Jose M.D., Arellano, Appellants,
nardo TATE, as Next Friend of
Tanika
Elijah Mendez, Appellee.
No. 08-10-00253-CV. Texas, Appeals
Court
El Paso.
March 2012.
Perez-Benavides, and Dr. Jose Bernardo written Arellano filed adequacy Appellee Tanika Tate’s reports, and that her claims be dis- asked *3 that al- prejudice missed with because of court, The trial after leged inadequacy. overrul- hearing argument, issued orders ing objections. affirm. Appellants’ We BACKGROUND1 29, 2000, who February Appellee, On twenty-fifth preg- then in her week of was baby Eli- nancy, gave tiny boy, birth to a jah weighed Mendez. Mendez less than pounds immediately at birth 1.5 and was placed in the neonatal care unit intensive (“NICU”) Hospi- of Providence Memorial Paso, in El tal Texas. Because of his prematurity, extreme Mendez was at risk eye for an known retinopathy disease (“ROP”).2 prematurity 3, 2000, Dr. April Jorge On Llamas- Soforo, ophthalmologist an the Provi- Schell, LLP, Cooley Schell Russell W. NICU, eyes dence examined Mendez’s Addison, TX, Appellants. for 1,May found no indication of ROP. On Girards, Firm, The Law James Girards 2000, Dr. Llamas-Soforo examined Men- Dallas, TX, Appellee. eyes again dez’s and still found no indica- RIVERA, J., ANTCLIFF, J., Before 22, 2000, however, tion of ROP. On (Senior). CHEW, C.J., Dr. Llamas-Soforo examined Mendez’s eyes a third time and found ROP both OPINION 25, 2000, of them. On Dr. Llamas- RIVERA, Justice. GUADALUPE performed surgery Soforo laser on Men- eyes, surgery dez’s not save but did case, liability Appel- In this health care Dr. Roy permanent legal lants John Dr. Fortunato Mendez from blindness.3 briefs, parties’ Dictionary, 1. http://www.merriam- From the record and the Desk pieced together (March 13, 2012). appear have what to be the webster.com/ undisputed We have facts. omitted certain not facts essential to our discussion. 3.Legal "having blindness means not more acuity eye than visual in the better 20/200 premature 2. ROP is "an ocular disorder of correcting acuity greater lenses or visual incompletely that occurs when the infants than but with a limitation in the field 20/200 retina an vascularized of such infant com- of vision such that the widest diameter of the pletes pattern an abnormal of vascularization angle greater an than visual field subtends presence and that is characterized degrees.” Tex. Hum. Res.Code Ann. opaque fibrous membrane behind the lens (West 2001). 91.002(2) § eye.” of each Merriam-Webster's Medical Appellee, On October as next mologists treat it. It is a very complex Mendez, against friend of filed a lawsuit disease. Llamas-Soforo, Ayo,4 Luis Provi- Sims, soAnd Dr. who is neonatologist, others, Hospital, dence Memorial al- attempts in her report opine as to cau- leging negligence proximately sation this case. object And we first legal Mendez’s blindness. Appellee later her qualifications to be able to her petition amended to add Dr. Vibha that because she has no experience, back- Honkan as defendants. ground, training in treating [or] ROP and Dr. Honkan and were all neo- saying how breaches of the neonatolo- natologists who worked in the Providence *4 gist actually any caused blindness through during NICU the time Mendez a pa- was the ROP. tient there. Additionally, object we also to the actual Appellee timely served on opinions themselves as being conclusory. expert reports, by two one written Dr. Essentially what Dr. Sims says is that the Good, pediatric ophthalmologist William a allegedly babies weren’t timely screened California, practiced
who in one writ- and and now baby is blind. There is no Sims, neonatologist ten Dr. Maureen a testimony as to how that ROP —or how practiced Appel- who also in California. that delay any caused blindness. That objections lants filed written ... any doesn’t inform of these defendants expert reports of the two and as to how alleged their breaches caused Appellee’s asked that claims be dismissed any plaintiffs of this injuries. prejudice alleged because of that in- With respect to Dr. report, Good’s adequacy. objections their to Dr. object to opinions his regarding causation report, Appellants Good’s argued that he being conclusory. also opinions His are had to any show causal link” be- “fail[ed] essentially Sims’, the same as Dr. and tween alleged negligence their Men- and basically it doesn’t inform the defendants dez’s blindness. In their to Dr. any as to how of their alleged breaches report, Sims’ Appellants argued that she any caused of the [cjausa- plaintiffs injuries. qualified was opine to as to “[n]ot that, event, tion” and she too had Appellee responded to Appellants’ argu- explain “failed to alleged negli- [how their] ments as follows: gence proximately Elijah’s blind- the report supposed is to [W]hat do is ness.” demonstrate to the Court that the case The trial court later held a hearing on has got some merit. You’ve some ex- Appellants’ objections. At hearing, that perts out willing go there who are to and Appellants argued as follows: a report make and show that there’s ROP, some merit to the claim put This case involves which is and also eye very defendants premature Only disease babies. a on notice of the conduct handful of ophthalmologists treat that’s being question. ROP. called into In do- Neonatologists do They ing Chapter not treat it. can that under 74 the Texas [of ROP; baby treat the that Code], has but as far as Civil Practice and Remedies goes ROP itself ... ophthal- you’re not even all supposed produce care, Ayo 4. neonatologist was a development, who worked in concerned with the during the NICU the time Mendez was a diseases of newborn infants.” Merriam-Web- patient "neonatologist” physi- there. A Collegiate Dictionary, http://www. is a ster's (March 13,2012). cian who works in the "branch of medicine merriam-webster.com/ 302 care, arbitrarily if unreasonably the standard of breach- acts it
talks about decision, only of care and causation could have reached one but es of standard reached a one. for each of the defendants. instead different See Teix (Tex. Hall, 805, eira v. 107 807 S.W.3d App.-Texarkana pet.). To that end, a trial court its abuses discretion ... In their the defendants analyze apply when it fails to or the law neonatologist acknowledge Co., correctly. In re Sw. Bell Tel. 226 opine about the stan- qualified Sims is (Tex.2007), citing In re neonatologists dard of care (Tex.2003). Kuntz, 124 S.W.3d breaches; they’ve acknowledged also Good, a recognized expert that Dr. RELEVANT LAW
ophthalmology, qualified is about plaintiff, The a health care liabil you put reports causation. the two When lawsuit, ity must serve on each defendant together, you have standard of care and expert reports, one or more and associated breach and causation which meets the vitae, days curricula no later than 120 after Chapter requirements. *5 the petition is filed. Tex. Civ. Prac. & hearing, At the conclusion of the the 74.351(a) (West 2011). § Rem.Code Ann. objections Appellants’ trial court overruled purposes, For these an “expert report” is a expert reports. Appellants to the two la- report by written an expert provides interlocutory ter notices of ap- filed summary fair of the expert’s opinions re peal. See Tex. Prac. & Civ. Rem.Code care, garding applicable standards of the 51.014(a)(9)(West 2008). §Ann. in manner which the defendant failed to standards, meet those and the causal rela DISCUSSION tionship between the defendant’s failure Court, appeal On to this plaintiffs injury. and the Tex. Prac. Civ. issues, they two in which bring argue that (West 74.351(r)(6) § & Rem.Code Ann. the trial court erred in overruling their 2011). plaintiff may satisfy any require A reports. to the two re- With serving ment for an expert report serv spect reports, of those ing separate reports from different ex Appellee essentially make perts. Tex. Prac. & Ann. Civ. Rem.Code arguments they the same made below. 74.351(i) (West 2011). Thus, § a deficien however, addition, Appellee asks that cy report may inup one be made anoth damages Appel- award her because report. er appeal lants’ is frivolous. See Tex.R.App. P.45. An expert report its ac and/or
companying curriculum vitae must estab STANDARD OF REVIEW report’s qualified lish that the author is to We review a trial court’s an opine expert subject Section 74.351 on the matter of Center, ruling for an abuse of discretion. Ameri- the report. In re McAllen Med. Tex., (Tex.2008). 458, can Transitional Care Ctrs. Inc. v. 275 S.W.3d 463 The med (Tex.2001). Palacios, 873, expert 46 S.W.3d 877 ical practice need not the same A trial court abuses its discretion if it specialty qual acts as the defendant order to manner, Williamson, arbitrary in an ify expert. unreasonable or as an Roberts v. (Tex.2003). 113, However, without to guiding reference rules or 111 S.W.3d 122 Gutierrez, principles. every physician always Walker v. 111 not licensed is (Tex.2003). 56, testify every S.W.3d 62 A trial court on qualified ques-
303
Heise,
148,
tion. Broders v.
924 S.W.2d
which he is offering
opinion.
an
Palafox
(Tex.1996).
Silvey,
310,
To be
qualified
316 (Tex.App.-El
relationship5
pet.).
on the causal
between the Paso
alleged
ap-
defendant’s
failure to meet an
A
may
defendant
file written
plicable
plaintiffs
standard of care and the
objections to the adequacy of an expert
injury,
report’s
must be a phy-
author
report. Tex. Civ. Prac. & Rem.Code Ann.
qualified
sician who is otherwise
to render
74.351(1) (West 2011).
§
The trial court
opinions
relationship
on such causal
under may
finds,
sustain such
only if it
the Texas Rules of Evidence. Tex. Civ. after a hearing, that
report
does not
74.351(r)(5)
§
Prac. &
Ann.
Rem.Code
represent an objective good faith effort to
(West 2011).
comply with
statutory
definition of an
(see above).
expert report
repre
Id. To
Texas Rule of
Under
Evidence
objective
effort,
sent an
good faith
expert
may
qualified
witness
be
on
provide
must
enough information
skill,
“knowledge,
the basis of
experience,
”
(1)
to:
inform the defendant of
specific
training,
question
or education....
The
plaintiff
conduct that
has called into
of whether an
qualified
witness is
(2)
question and
allow the trial court to
under Rule 702
within
lies
the sound dis
conclude that the claim has merit. Palac-
cretion of the trial court. Broders v.
ios,
subject may testify as to the standard of DR. GOOD’S REPORT Id.; Blan,
care.
or the manner standard; ly- they complain only ed discussion of causation.
about Dr. Good’s read, part, in relevant Dr. Good’s reiterate, very birthweight low To his as follows: at gestational age placed at birth him developing ROP. particularly high risk for at an Baby Elijah was born on 2/29/00 He have been examined at least should gestational age of 24 weeks 5 estimated Ayo’s Dr. every weeks. Based on own days, weight grams. with a birth of 650 testimony care and concerning standard of Baby Elijah by was first examined Dr. May demonstrating Dr. Llamas’s 1 exam 4/3/00, between approximate- Llamas on or vascularization, Elijah’s incomplete Drs. ly 4-5 weeks of life. Llamas found no Honkan, Ayo, Caviglia, Perez-Benavides fungus posterior pole in the and noted and Bernardo-Arellano breached standard degrees. at 360 incomplete vascularization by followup care failing follow-up He recommended in 4 weeks. Elijah ROP exam for within weeks of month, Throughout the next it was noted 1.May Elijah at high the records was risk awaiting for ROP and reassessment Dr. Llamas Llamas. re-examined Honkan, Ayo, Caviglia, If Drs. Perez- on At that time Dr. Llamas noted 5/01/00. provid- Benavides and Bernardo-Arellano vascularization, Elijah’s “increased care, a follow-up ed standard of exam ROP,” follow-up and recommended place would have taken between three weeks. Dr. Llamas reexamined Eli- 15, when, within a reasonable
jah on and discovered advanced 5/22/00 degree probability, Elijah of medical would Honkan, eyes.... Ayo, both Drs. type have had the of threshold ROP that Perez-Benavides Bernardo- should have been treated in a fash- neonatologists Arellano were that covered By ion with ablative therapy. providing during Elijah’s relevant clinical NICU therapy, ablative Eli- appropriately-timed *7 course. blindness, jah’s bilateral a legal within rea- neonatologist provided Each care to degree probability, sonable of medical Elijah from Mendez the time of the initial Instead, would never have occurred. Drs. follow-up [ophthalmologic] examination of Honkan, Ayo, Caviglia, Perez-Benavides 1,May follow-up 2000 until the second to a and Bernardo-Arellano failed ensure May examination on 2000 owed the examination, timely follow-up resulting in Elijah. same standard of care to These diagnose Elijah’s point failure to ROP at a neonatologists negligent by were not ob- in time he have a expected when could taining ophthalmologic the needed exami- surgery, favorable outcome from to a med- 1-2 nation within weeks of the probability. my opinion Ayo, ical In Drs. Honkan, exam. Ayo (May Caviglia, This includes Drs. Luis Perez-Benavides 2, 9, 10, 11, 16, 17), provide Jose Bernardo-Arella- Bernardo-Arellano’s failure to this 4, 5, 12, 13), (May proximate Fortunato Perez- standard of care is a cause of 6, 7, 8), Elijah’s (May Roy Caviglia (May Benavides blindness.
14), 1, 15), (May and Vibha Honkan who days.
cared for on these The infant addition, very high was at developing agree opin- risk for ROP I with Dr. Sims’ life, report Ayo, this of time in his and so he ion stated in her that Drs. window Honkan, Caviglia, Perez-Benavides and for eyes Mendez’s when a pediatric trained Bernardo-Arellano’s use of Dr. Llamas ophthalmologist was provide available to Elijah’s consult on and treat this that care. Dr. that, Good further opined Radenovich,6 case when Dr. a pe- trained to “a degree reasonable proba- ophthalmologist, diatric was available is bility,” but for Appellants’ breaches of the Ayo, beneath standard of care. Drs. Hon- care, standard of Mendez’s ROP kan, Caviglia, Perez-Benavides and Ber- would have been discovered and treated in Llamas, nardo-Arellano’s use of Dr. who a fashion and he would not have improperly Elijah’s examined and treated legal record, suffered blindness. On this eyes, proximate was also a cause of Eli- the trial court could have reasonably con- jah’s ap- blindness. Dr. Llamas was not cluded that Dr. Good’s discussion of causa- propriately trained proctored per- represented tion objective good an faith form surgery laser for ROP on neonates. effort to meet statutory requirement. training Dr. Llamas’s to do surgery laser report Dr. Good’s provided enough infor- for ROP consisted of attending day one mation to inform Appellants specific of the began doing seminar and he then laser conduct that Appellee had called into ques- surgery any for ROP on neonates without tion and to allow the trial court to conclude proctoring by ophthalmologist experi- Appellee’s Thus, claim had merit. performing enced in surgery laser for discern no abuse of discretion on part ROP. of the trial court in overruling its of Appel-
lants’ to the adequacy of Dr. Good’s report. Elijah’s legal proximately blindness was Honkan, Ayo, Drs. DR. SIMS’ REPORT Perez-Benavides and Bernardo-Arella- Appellants argue that the trial care, failures of no[’s] standard as de- court in overruling erred their they provided Elijah scribed above. Had of Dr. report Sims’ be with a timely followup exam within 1-2 she qualified cause was not on the exam, weeks of Dr. Llamas’ his and, event, issue of causation she threshold ROP would have been identified too failed “to a sufficiently specific and, to a degree reasonable of medical description of the causal relationship be probability, therapy ablative laser would Appellant’s tween each [of] individual acts have preventing been effective in his bilat- Appellee’s alleged injury.” Dr. Sims’ eral legal blindness. read, part, in relevant as follows: *8 currently I hold a medical license the APPLICATION California, State of where I am a Profes- Good, report, opined Ap- in his that University sor of Pediatrics at the of pellants breached the standard California, Angeles. Los I am a board- (1) ways: of care in two by failing to pediatrician certified neonatologist. and ensure eyes that Mendez’s were examined my I have attached curriculum vitae.7 for ROP an ophthalmologist within one to two I During my weeks after Dr. Llamas examined career have been Director (2) 1, 2000, May them on by allowing and of Newborn Services at Methodist Hos- Arcadia, CA, necessary pital Llamas to the care Director of [the] 6. The record does not reflect Dr. Radeno- 7. The record contains no such cur- additional given vich’s name. riculum vitae. Dr. Llamas’ May at the or 1-2 weeks after
Newborn Intensive Care Unit and, Center, most King-Drew May Medical 1 exam. the Director of Newborn
recently, I was Furthermore, Elijah timely if had had a at Olive View-UCLA Medical Services ophthalmologic screening examination be- at the time position and held that Center Elijah’s tween and Elijah with occurred. I am these events appropriately have been and would establishing updating poli- and active he therapy, treated with ablative and for neonatal care procedures cies and would, degree within a reasonable of medi- in the Newborn Intensive Care provided probability, improved cal have an visual in the and I have been involved Unit outcome. policies of care development of standard Honkan, Finally, Ayo, Caviglia, had Drs. prema- for the care of procedures Perez-Benavides I and Bernardo-Arellano past years. ture babies for Radenovich, pediatric for utilized Dr. a hospital have chaired committees quality improvement ophthalmologist necessary and Chaired with the edu- cation, Department of Health Best Practice training experience to examine Angeles County. for In ROP, Los Committee Elijah and treat babies at risk for I have with capacity this worked and would have the care and treat- received regarding ap- trained neonatal nurses ment he deserved—standard of care—and nursing standards of care propriate would, Elijah degree within a reasonable within the NICU. an im- probability, had [have] personally preterm I have treated small proved visual outcome that would not have Mendez, Elijah newborns like and I am legally left him blind. of care for familiar with the standards my opinion, negligence of Drs. infants, at treating such small both Honkan, Ayo, Caviglia, Perez-Benavides physician hospital/nurs- level and Bernardo-Arellano, as described
ing/staffing respect policies level above, proximately Elijah’s bilater- procedures, ensuring screening for blindness, legal al and absent these fail- (ROP). retinopathy prematurity I would, ures within a reasonable de- requested ophthalmologic have consulta- certainty, gree of medical had an [have] ophthalmologists to pediatric tions from outcome.” improved visual ROP, preterm screen infants for and I helped develop necessary have APPLICATION procedures baby policies and ensure report Dr. Sims’ indicates that she is an necessary for ROP at risk obtains accomplished neonatologist and she is treatment he care and or she needs. knowledgeable appropri- about procedures ensuring premature ate for infants in Dr. nothing are screened for ROP. But Honkan, Ayo, Drs. Perez-Be- Sims’ indicates that she has knowl- in- navides and Bernardo-Arellano had an skill, experience, training, or edge, edu- responsibility Elijah’s dividual neonatol- *9 ophthalmology, pediatric ophthal- cation in ogists receiving proper to ensure he was way presents in which ROP in mology, screenings, followup newborns, or that disease is treated in screenings, and that how received general in Mendez’ case. On this necessary treatment for ROP. These neo- record, then, trial could not have natologists followup failed to ensure that a court reasonably between concluded that Dr. Sims had screening place took 8 and expertise regarding the causal re- we cannot conclude that genuine Appellants had no Appellants’ alleged between lationship expectation reasonable of reversal. of the standard of care breach Thus, injury.
and Mendez’s
the trial court
CONCLUSION
overruling Appel-
abused its discretion in
Although we have determined that the
report.
lants’
to Dr. Sims’
trial court
by overruling
erred
objec-
However,
light
expert
in
of Dr. Good’s
tions
expert
of Maureen
report,
properly up-
which the trial court
Sims, M.D., the trial
properly
court
over-
held,
the trial court did not err
not
ruled the
expert report
dismissing Appellee’s health care claim.
Good, M.D.
William
We therefore affirm
the trial
denying
court’s order
the motion
SANCTIONS
to dismiss.
Appellee
argues
damages to
it
should award
her because
is
CHEW, C.J., (Senior), sitting by
“have
Appellants
“evident” that
failed to
assignment, concurring.
identify any legitimate
concluding
basis for
reports
are insuffi
CHEW,
DAVID WELLINGTON
Senior
authority,
cient....” We have the
Justice.
Chief
course,
just damages
to award
if we deter
respectfully
I
concur.
I do not believe
frivolous,
appeal
mine that an
is
but we
that the trial court
abused its discretion
authority only
exercise that
if the record
refusing
expert report
to find Dr. Sims’
appellant
shows that
did not act
inadequate.
Group
See Pediatrix Medical
good
expecta
faith and had no reasonable
Robinson,
(Tex.App.-
peared argument, at oral
have shown that the trial court did abuse that, part.
its discretion in In view of all