Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt

701 Alexander, individually. against suit is him individually This for fraud and be- Alexander, individually,. for against any right cause such to an is offset waived damages resulting from Alexan Kent pled because was never or by tried consent, der’s fraud. we overrule Alexander’s seventh issue. Moreover, is making Alexander appeal.

this claim for time on the first CONCLUSION setoff, offset, right of or reimburse Having sustained Alexander’s sixth is an must issue ment affirmative defense complaining not proved asserting Kent entitled to pled party Davis, attorney’s 604, fees for this special See suit it. Smith v. S.W.3d 462 2015, denied) fees, (Tex.App. Tyler pet. bankruptcy 614 we reverse the trial — judgment court’s reh’g); Sys. Hosps. (op. Tenet Health those fees Dallas, total $25,249.97 Hosp. Inc. v. N. amount of Physicians Tex. and render 190, P.A., judgment nothing Kent take on his Grp., 438 204 S.W.3d 2014, claim for pet.) (citing attorney’s fees. (Tex. Ap p.—Dallas Having Brown over- Co., through Am. ruled Alexander’s first Storage v. & 601 fifth S.W.2d issues Transfer issue, 931, (Tex.1980)). and his Generally, seventh we affirm judg- 936 an affir ment in pled against favor of Kent and respon mative must be Alexan- defense der for damages pleading, or the amount of sive waived. the defense.is $20,061.32, 94; plus prejudgment post- Civ. MAN Engines See Tex. R. P. Shows, judgment and costs of Components, v. interest court as Inc. 132, (Tex.2014) (stating awarded trial court. 136-37 Rule 94 clear that defenses affirmative must makes in pretrial

be raised Shoemake pleadings); Ltd., 933, (Tex. Fogel,

v.

1992) (stating defense if waived affirmative pled). only general Alexander filed original in response peti

denial to Kent’s tion and never amended answer to MANGIN, Jr., Zbigniew Earl M.D. and any offset or assert other affirmative de Wojciechowski, M.D., Appella fense for the amount he counterclaim owes, now claims Kent There also no nts parties indication the record WENDT, Individually, Melissa and as such by' tried claim for offset consent. Executrix the Estate of Donald Smith, 614; see also S.W.3d at Wendt, Deceased, Wendt, and Erin 300, Springs Fire Ins. Co. v. C. Hartford Appellees Ltd., 771, (Tex.App.— 779-80 (not denied) No. 01-14-00852-CV pet. Houston [1st Dist.] ing excep consent is reserved Texas, Appeals Court cases, tional the record not we review Dist.). (1st Houston for admission of relevant evidence on the issue, but of trial rаther for evidence Opinion issued November issue).

Because Alexander to as- entitled

sert balance on the contract to owed damages

KBA an offset to awarded Zbigniew Wojciechowski.

Mangin, Jr. court’s appeal from trial doctors Both motions to denial their dismiss. deficient Because Mangin, as to we reverse dis- denying order motion to' court’s miss, remand instructions and we provide, oppor- court to the Wendts deficiency in accordance tunity cure the re- Because statute. Wojciechow- adequate as to Dr. ports were of his ski, we affirm the trial court’s denial' motion dismiss.

Background Sugar Donald Wendt was admitted pain. with chest Hospital Land Methodist cardiologist Dr. Earl Man- Interventional im- performed angioplasty an gin, Jr. stent, during planted procedure but perforated artery. An anesthesia an he assistance, responded to a call for provider anesthesia, attempted to administered intubating pa- establish ventilation tient, mistakenly was but first tube esophagus. into the Mr. inserted 70%,' dropped oxygen levels ex- and he. Ventilation perienced cardiac arrest. methods, and by alternative established Edwards, Stephens, Donald S. James B. performed per- to correct surgery Stafford, TX, Garcia, John Stacy C. T. artery complications. forated and other' Landa, Jr., Lapin King, & Lucille Reiter Unfortunately, the loss caused Landa, TX, Houston, Appellants. damage, irreparable brain and Mr. Wendt Associates, Sydow, Sydow David & days died later. two . P-LLC, Houston, TX, Appellees daughters and his two Wendt’s estate Wendts) hospital (collectively, the sued the Bland, Keyes, Panel consists of Justices Zbigniew Wojcie- Dr.' Mangin, e Massengal . ” chowski, petition The and “Dr. Smith. indicated alleged a medical record OPINION anesthesiologist “a ‘Smith? was Massengale, Michael Justice periods,” although no during the relevant for a “Dr. Smith interlocutory appeal from a information address This is an locat Hospital” working that the for or could ruling medical order court’s alleged specifically petition of a The expert reports support ed. filed Hospital staff stated “upon inquiry sufficient allow malpractice lawsuit are d Wojciechowski Earl Smith an against Doctors there was рroceed the case to 74.351(a), (i); § during P’ship the entire TTHR v. Mor Ltd. was the time,” Wojciechow- eno, (Tex.2013). and that “Dr. relevant The placing improperly, ski intubated .Plaintiff that such a must requires statute Plain in a manner that blocked the tube (1) provide: summary fair “a. the ex breath, ability placing the tube" tiffs pert’s ... opinions regarding applicable additionally petition esophagus.” care,” (2) identi statement “prepared Wojciechowski that Dr. alleged manner fying “the in which the- ren indicating signed the anesthesia pro dered or health care present procedure.” standards,” (3) meet vider failed to attempt Chapter to comply explanation relationship of. “the causal Reme- 74 of the Texas Civil Practice and failure between that the injury, harm, Code, timely dies the Wendts filed three damages claimed.” Tex. Civ. Prac. doctors reports. appellant expert Both 74.351(r)(6); see Ltd. TTHR Rem. Code filed motions dismiss claims the Wendts’ P’ship, 401 S.W.3d at 44. “The challenging adequacy every marshal bit of the need motions, As to reports. both the- Wendts evidence,” plaintiffs Jernigan Langley, argued response reports their were (Tex.2006), but it must and, sufficient, alternative, “explain, degree, to a reasonable how and grant 30-day cure should extension why injury based breach good- reports they made because had Casas, presented.” the facts Jelinek v. attempt to comply faith the statute. with 526, (Tex.2010). 328 539-40 S.W.3d filed, motions to After the dismiss were a timely files defendant When discovery re- Wojciechowski served challenging adequa motion to the dismiss sponse indicating Dr. Milan Sheth may cy expert report, the trial court for Mr. cared First, improperly intubated him.1 take of three actions. if the one report court concludes that is ade mo- The trial court denied both doctors’ deny quate, may it the motion to dismiss. tions, both doctors appealqd. See, 482, Kyle, v. e.g., 371 S.W.3d Hillery Analysis 2012, 492 (Tex.App.-Houston Dist.] [1st Second, if. pet.). appellant separate court The concludes doctors filed as- arguments objective briefs and raised distinct does constitute serting by denying the court errеd good stat comply faith effort with the motions to their dismiss. ute, grant it must the motion to dismiss. 74.351((); § Tex. Prac. Rem.Code Civ. plaintiff asserting A care lia health Hosp. Wright, v. Bowie Mem. 79 S.W.3d bility claims must each serve defendant 48, (Tex.2002); Jernigan, see 51-52 also or one provider health Third, if 195 S.W.3d 94. the court expert reports a curriculum or more objective that the concludes is an expert each of vitae of whose comply good statute fered to substantiate merits faith effort See Tex but it deficient in some claims. nevertheless Code & Rem. Civ. Prac. Sheth, appellate hos- Milan also The record a reference to He 1. indicates that M.D.” provided suggesting that the pital information provided seri said that Dr. Sheth anesthesia lab, Wendts had misread medical records with Wendt in the vices to Mr. catheterization respect role Dr. Wo- to the of "Dr. Smith.” Wojciechowski saw asserted that "first inquir- jciechowski interrogatory answered an patient during transport operating ing identity stat- about of "Dr. Smith” room.” ing: say may cannot be “I for but this certain 706 Co., 01-14-00792-CV, plaintiff 30-day Ins. 2015

way, grant the one No. WL may it 1020193, deficiency. (Tex.App.-Houston See Tex. *1 to cure the [1st extensión denied) 74.351(c); 5, 2015, pet. Scores (mem.op.). Dist.] & Rem. Code Mar. Civ. Prac. (Tex. Santillan, 546, 557 346 S.W.3d v. ruling a trial court’s review We 2011), “purpose Because the pursuant on a motion to dismiss Section is to requirement deter frivolous Palacios, 74.351 abuse discretion. claims, regardless claims dispose A trial S.W.3d at court abuses its 878. merits,” Supreme Court their arbitrary discretion if it in an acts un should “trial courts lenient held that be reasonable manner without reference to granting thirty-day extensions and must any principles. guiding rules v. Walker expert report in an can if do so deficiencies Gutierrez, 56, (Tex.2003). thirty-day period.” be cured within the discretion, exercising its trial court addition, at 554. In Scoresby, 346 reports, resolve in should review appeals “when court finds deficient consistencies, and whether the determine the trial considered ade reports good faith effort demonstrate quate,” plaintiff should afforded one the,plaintiffs claims show have merit. if deficiеncy, to cure 30-day extension Physicians, Ness ETMC First Van v. Brandal, possible. Leland v. 257 S.W.3d (Tex.2015) curiam). (per (Tex.2008). 204, 207 Jr., Mangin, I. Earl M.D. report qualifies objective as an A cardiologist, argues Dr. Mangin, the (1) if good comply informs effort faith by denying the trial court erred motion specific defendant conduct the (2) report. dismiss for of an want provides plaintiff á basis questions, reports provided expert Wendts trial court conclude that (1) physicians: three Dr. William J. Maz- Loaisiga have merit. plaintiffs claims zei, (2) Dr. anesthesiologist; Paul (Tex.2012); W. Cerda, ac 379 S.W.3d Dlabal, (3) cardiologist; a practicing Scoresby, cord 346 S.W.3d at Be 549. Memon, Dr. Abdul Q. a board certified report must expert set forth the cause respect anesthesiologist. to the relies, With upon expert which relevant facts against Mangin, claims Dr. two of these care, identify of applicable the" standards reports objective good faith are not efforts explain how the defendant’s breach comply Mangin to the statute. Dr. injuries, the Su claimant’s argues report which the third does preme of Texas that a Court held opinions him, offer Dr. about Memon’s re- ordinarily may only look to “four court wholly is port, inadequate because he is expert report to comers” of the determine qualified opinion. not to render an good objective it constitutes an whether comply. Wright, faith to effort 79 S.W.3d reports A. Mazzei and Dlabal 52; Am. Transitional Care Ctrs. of Tex., Palacios, 873, v. 46 no Inc. Mazzei’s made S.W.3d 878 Dr. asser report (Tex.2001). question no adequa of tions conclusions relevant to When and drew cardiologist cy Mangin general hinges expert’s qualifications, on the or such, report may ly. standing also consider the four corners of As alone this ‍​‌‌‌‌‌‌​‌‌‌​​​‌‌​​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌‌‍did satisfy any statutory curriculum vitae. Palac not of the three ex expert’s ios, report as Dr. (noting pert requirements 46 at 877 Man gin. of a curriculum vitae is re See Tex. Civ. inclusion also Code Rem. Prac. statute); 74.351(r)(6). § quired by Woodard v. Fortress 74.401; Noble, § report Dr. DlabaFs reviewed and Mettauer v. 326 S.W.3d 685, summarized medical records (Tex.App.-Houston [1st Dist.] two days hospital 2010, Mr. Wendt was no pet.). pаrticular, opined his death. He (1) before must practicing be medicine at the time cause of was loss of to the death (2) he or arose, testifies when the claim brain, consequence complications of have “knowledge accepted standards of particular treatment heart attack —in care, diagnosis, medical care for the or perforation coronary artery. of a As illness, of the injury, treatment or condi causation, primary “The wrote: claim,” (3) in the involved be cause death was anoxia. cerebral Had “qualified on training expe or basis coronary perforation and its attendant tó rience offer an regarding not the course occurred accepted those standards medical care.” treatment, underlying condition 74.401(a). § Tex. Civ. Prac. & Rem. Code was, probability, reasonable medical To whether a quali determine is witness satisfy This fails survivable.” fied based on his experience, training statutory requirements because it did a trial court must consider whether the identify any applicable witness “board or certified has other care, Mangin assert failed training experience substantial or in an comply applicable with an standard' practice area medical relevant to the explain departure how a from an claim,” actively and whether he practic “is care caused Mr. ing in rendering medicine medical care Wendt’s death. See Dr. Dla- id. Because services relevant to the claim.” Id. report merely bal’s summarized the medi 74.401(c). records, cal not inform did plaintiffs ques conduct that the had every Not licensed nor provide did it a basis for the tioned qualified testify every about trial court conclude claims have Heise, Broders v. question. 924 S.W.2d Palacios, merit. See 46 S.W.3d at 879. 148, (Tex.1996); see Tenet Hosps. Ltd. Barajas, (Tex.App. B. Deficiencies in Dr. Memon’s pet.). inqui -El Paso The critical Finally, we consider ry goes the expert’s expertise is “whether Memon, anesthesiologist. Dr. Man- very matter on which he she is gin contends that deficient Broders, give oрinion.” objective good does constitute physician may qualified 153. Thus a faith effort because Dr. Memon is provide expert report an even when his qualified to expert opinion render an about specialty from that of differs the defendant performance of surgery. heart practical “if knowledge he has of is what claimant, usually customarily and other a a done physician, When sues practitioners petition under similar supported by expert must be an circumstances report confronting from to those qualified malpractice a who. defen dant,” testify subject or “if as an is common ques witness matter equally recognized to and in departed developed of whether the defendant Vu, accepted practice.” from an all of 76 medical fields Keo care v. 725, causing alleged damages. (Tex.App.-Houston S.W.3d 732 [1st Tex. denied).2 § 2002, Civ. Prac. & Rem. 74.351(r)(5); pet. id. Dist.] Code example, appeals 2. For experts specialty courts have held that whose differed 708 opined if report that the Dr. Dr. report, Dr. Memon stated Memon’s

In his Dr. required Mangin ruptured promptly- care had noticed the to “promptly deal prepared to be Mangin artery, performed .pericardiocentesis, and ruptured-artery and cardiac -tam- brain, a to' maintained flow Mr. with” blood complica- of which are known ponade, both period not have Wendt “would suffered insertion, call for a and to tions of stent hypoxia him that left dead.” brain The an anesthesiologist specialists such opinions report relating in both surgeon any problem “as soon as cardiac suggested impli- these standards of respect the first of With apparent.”3 for, qualifications required cate care, Dr. standards of proposed these of, sur- adequacy performance heart a report question raised Memon’s about inserting gery relating'to a stent and man- a Mangin Dr. knew how to drain whether aging complications procedure. of that actually did offer but he tamponade, must Dr. Mem- determine whether We Dr, Mangin unqualified to was report vitae demon on’s and curriculum report a perform insertion.4 stent specific to offer qualified strate that he is Mangin may that Dr. have suggested thus fact that opinions despite he is risky choosing perform pro- a erred prac actively neither board certified nor unqualified it. perform if cedure was ticing cardiology. See Tex. Prac. Civ. respect proposed duty to call to the With 74.401(c). Memon is Rem. Code specialists, Memon observed exten anesthesiologist board-certified was to Mr. Wendt administered Dopamine experience anesthesiology pain sive am. characterized the adminis- at 3:45 He states, management. He in five is licensed “a sigh” that Mr. Dopamine tration 1977, practiced in Texas and is since in cardiac distress” and had “was Wendt of care “familiar with the standards later, Four pressure.” “low blood minutes am, called, to, physicians [apply] and institutions in at 3:49 His passed expe 21 minutes Texas.” stated that he but an additional before surgeon called at 4:10 am. rienced of anesthesia cardiac the administration qualified erally requires when the were transfer defendant alleged angiography breach involved: home health lab for stent inser cath However; recognize upon act worker's tion.” failure remainder signs emergency, Mangin of a IPH not suggest medical true does breached that. Servs., Ramsey, duty relating pa 01 — 12— any Care Inc. v. No. Health "transfer (Tex.App.-Houston 00390-CV, 1183307, WL at *10 tient to first en the cath lab.” Dr. 2013, lab, 21, no Dist.] Mar. countered cath Mr. Wendt [1 st - general surgical practice? suggestion (mem.op.); pet.) Memon’s contains no Dr, Mangin postoperative delay preoperative such as- coun treatment Mr, 733; care, Keo, post seling and before arrived there. infection, Keillor, operative v. Garza 669, regard, "As hypothesized: 4. In this (Tex.Civ.App.-Houston [1st pericardiocentesis not-performed, until n.r.e.); taking ref'd Dist.] writ arrived, surgeon after the had giving history discharge instruc question leaves Dr. Man- tions, open the Whether Handley, Hersh And, Worth 1981, writ). gin tamponade? knew to drain if how (Tex.Civ.Aрp.-Fort possible qualified he was not to address Dr, report my Mangin complication, why also choose Dr. Memon’s stated: "In did to 3. Thus, accepted procedure opinion, standards of medical do a with that risk?” Dr, Mangin applicable report posed questions, under similar no an care offered but involving a the treatment of of an that Dr. circumstances swers form' patient myocardial Mangin any with an acute infarction relevant had breached (‘MI’), gen ambulatory, but and who is alert care. ence, patients surgical during and intubation training, qualified or education him procedures. an opinion render about particular breaches of standard of applicable care the. Memon’s Dr. attached shows exten- CV to cardiologist a when the coronary artery experience education sive and the areas perforated was, during the catheterization anesthesiology 6f pain management. and procedure during and subsequent compli- experience He has with eval- “preoperative cations that occurred. uation, airway management, including placement of an Endotracheal tube report The also did not establish or even (‘ETube’), and administration anesthesia assert Dr. Mangin’s alleged breaches patients undergoing surgical proce- pertained to subject a matter that is com dures, including procedures.” In mon to equally recognized and devel cardiac addition to his oped stated train- education and all practice, fields medical such field, ing in the he . anesthesiology, also specific that no cardiological knowledge or possi- experience asserted he “familiar with the required would be to offer a complications ble Broders, opinion. relevant can arise. 153; Keo, myocardial

treatment infarc- acute 76 S.W.3d at 732. a Whether tion and the necessary cardiologist remedial measures is providing cardiac care arise,” complications if such he and that sought should have help from knowledge has “substantial of the causаl surgeon. cardiac necessarily would de relationship an anesthesiologist’s pend between on what cardiologist medical fail-, general surgeon’s capable-of providing.- traumatic implicates This reasonable, prudent, ures meet cardiologist’s judgment relative accepted standards of specialty something and is not common to- supervision in diagnosis, equally care and recognized and developed in patients treatment of requiring all ventilation fields medicine. .To the extent that undergoing jgeneral possesses anesthesia Dr. Memon fact knowledge and/or surgical prócedures under both- cardiologist, when a should seek assis planned emergent conditions.” surgeon, tance from cardiac the basis of such knowledge was not clearly articulated Although he familiarity asserts . in his and CV “general standards of .care for and trau- surgeons,” matic Memon does Both Dr. Memon’s not and his CV make expertise assertions of pertain- by show that he is “certified American ing cardiologist’s to a provid- duties when Heart Association as an Advanced Cardiac ing Provider,” cardiac care.- Support does Life also and he has been explain how whether and Dr. Memon’s “certified American Heart Associa knowledge (C.P.R. about the standards tion as Healthcare Provider AED).”' “general ap- surgeons” and traumatic But neither nor the plied to specific breaches explain that he at- CV what it for an means anesthesi Moreover, tributes to Dr. Mangin. ologist to be certified American Memon’s statement that he Association as an .“familiar” Heart Advanced Cardiac Support or- can arise dur- Life Provider Pro Healthcare ing myocardial treatment for acute infarc* vider how these certifications would did, complica- and the treatménts for qualify opine, such Dr. Memon as he vague sum, non-specific. tions breached a standard of care expert report thfe by. managed does the manner in com demonstrate which skill, experi- how Memon’s knowledge, plications the stеnt insertion regardless from seeking in claims their merits.” Scores delay assistance alleged EMS, 554; by, 346 S.W.3d at see specialists. other Certified Potts, (Tex. Inc. can- argue that Dr. Memon The Wendts 2013); Loaisiga, Con 258. his area disqualified because simply not be the Court trial sequently, has admonished Mangin’s, from Dr. specialization differs 30-day granting courts to be lenient in they emphasize report that his states Scoresby, extensions. See 346 S.W.3d practicing experience has extensive that he 554. cases. anesthesiologist an cardiac expert re- explained, as we have But that the re Here the court found that Memon did not Dr. port demonstrate adequate. report port Indeed training experience” has “substantial Dr. on the opinions Memon’s summarizes cardiology or of cardiac com- management identifies Although Memon stated plications. Dr. Mangin ways in which he that Dr. believes provided patients he has anesthesia that standards, provides those an breached not he did undergoing procedures, explanation alleged of how breaches these very “expertise goes his that show See caused Donald Wendt’s death. Tex. give is to an which he she matter 74.351(r)(6). Ac Prac. & Rem. Code Civ. Broders, at 153. opinion.” 924 S.W.2d cordingly, report was we that the conclude here, specific presented facts Under comply, objective good faith effort report Dr. Memon’s is deficient because deficiency failing to articulate despite its adequately link education fails him expertise qualified how Meihon’s CV, his listed on his experience statement to the claims to render relevant is familiar that that he against Mangin. myocar- may arise treatment on in- reached conclusion We this have infarction, specific opinions his dial terlocutory appeal from trial court’s Mangin’s alleged errors how about the defendant’s motion dismiss. denial logi- Donald Such Wendt’s death. report Because we have found deficient cannot be inference. See gaps cal filled adequate, the trial court considered (holding Scoresby, 346 S.W.3d at on remand should be afforded Wendts expert may not omissions 30-day deficiency, extension to cure inference). supplied Leland, at 207. possible. if issue, Dr. Mangin’s first We sustain Objective good faith effort C. denying reverse the trial we court’s order re argues motion to dismiss. deficiency articulating port’s Dr. Mem- not qualifications means it did on’s Zbigniew Wojciechowski, M.D. II. objective good faith effort constitute such, con As statute. comply issue, argued In one Dr. Wojciechowski wqs grant required tends denying that the trial court erred his motion dismiss. reports motion to dismiss because the deficient, agree so deficient as to constitute no we were While particular, to him. he contends we are convinced that dismissal e im Supreme not th required on he was record. argues properly that the statuto intubated Mr. He Court often cautioned Wendt. part only in the ry exist that he cared requirements Mr. Wendt room, claims, operating “to frivolous and none dispose deter reports implicate anything he did. He also standard of liability shift on the argues reports not that two do proceeded who doctor the anes- before by report name mention'him third thesiologist was present. that wrong party. he is the

establishes Wojcieehowski Dr. asserts that shows that not anesthesiologist he. was Dr, report A. Memon’s performed who the intubation. But Dr. report Memon’s is one Dr. that report not Memon’s is on the conclusive Wojcieehowski him. contends exonerates anesthesiologist’s issue the relevant stated Mr. was Dr. Memon that identity. Dr. Memon “Dr. referenced oxygen for “significant periods without as Smith” who performed doctor time,” improper and he place identified procedure, intubation although that identi- tube ment the endotracheal as contrib expressly qualified fication was by the fo- uting oxygen. the loss cause explanation that otnoted drawing he was report Mangin’s noted that “Dr. record identity inference about on the based anesthesiologist states incorrectly that sparse' and partially illegible information in placed the [endotracheal tube] the record. ... esophagus not mention how does long cor it took notice and Smith1 B. Dr. Mazzei’s placement.” rect the In the footnote ref immediately erenced after the name “Dr. Dr. Wojcieehowski argues also Smith,” Dr. Memon’s elaborated that Dr. report” is “no Mazzei’s that the medical were records unclear by to him it him because does mention actual identity of the anesthesiolo name. Dr. summarized Mazzei’s gist procedure. performed who .He records, relevant medical- stan identified stated: dards of care to an anesthesiolo note, Of while records that Dr. show gist, asserted the anesthesia provider Wojcieehowski was the departed from those standards surgery per- of record departures explained how those in the room operating was formed Mr. Wendt’s death. present general administration liability claim When a health throughout anesthesia and treat- is on liability, based assertion direct 7, morning February ment on the identify expert report will typically 2012, the nurse’s from the addition, adequate); In employees Ogle its thesia.” standard of dant or “the care 316, Matthews, requires anesthesiologist that the maintain 262 S.W.3d tree (Tex.2007) (report oxygen sufficiently implicated patient’s 321-22 de level at high prevent “although organ damage.” it did level so as to fendant doctor’s conduct v, name”); by Troeger him mention explained Dr. Mazzei that the medical 104, 106, (Tex. Myklebust, 274 S.W.3d proper preoxygenation records showed 2008, pet. App.-Houston de [14th Dist.] anesthesia, and induction of but “the anes- nied) implicated (expert report conduct of ’... provider thesia was unable to intubate by sole was not defendant who identified [oxygen] attempts those' by position “previous name but dentist” 88%.” saturation fell to “anes- When conduct). by specific reference provider” attempted thesia mask ventila- tion, oxygen Mr. saturation “fell Wendt’s set Dr. Mazzei’s stan- forth 70s, organ damage into the level which breach, care, dards of causation it opined starts to occur.” Mazzei that respect anesthesiologist who intu- low that was this saturation caused Mr. It that Dr. bated Wendt. recited experience Mr. Wendt cardiac arrest. Mazzei is board-certified opined He that saturations further the low frequently provides pa- anesthesia for ventilation, by inadequate were caused' undergoing cardiac catheterization tients which turn was caused anesthesia “thoroughly and who familiar "Withventi- provider’s taking “too time re- much problems may that" lation arise adequate Dr. Maz- establish ventilation.” emergency.” of an Dr. Mazzei re- course wrote, zei “This below the standard Mr. Wendt’s medical records and viewed and led to Mr. anoxic brain care Wendt’s his summarized them in He set report. damage subsequent demise.” forth1 for several standards care anes- conclusions, his saying Mazzei summarized thesiologists patients like caring Mr. provider: that the anesthesia He Weridt. wrote: stopped Mr. induced anesthesia which patient requires emergency air- When own, from breathing on but Wpndt did, way management Mr. failed to ven- then re-establish sufficient requires standard care anes- tilation before cardiac arrest occurred. thesiologist patient’s quickly assess the This failure was below the standard condition, perform an of the evaluation proximate care cause of the airway, necessary po- and bring the brain cardiac arrest led to anoxic drugs tentially equipment needed damage and ultimate demise. patient. ventilate and intubate the explained Dr. Mazzei’s the statuto Mazzei satisfied because , ry from bleeding perforation requirements report by Mr. for an expert coronary artery, setting forth “the standard of immediately identifying care required pro be in- how the anesthesia [he] this., standards, those opined tubated.” He should be vider breached and ex simplify done plaining alleged under visual- how the breaches anesthesia explained airway. ization See Tex. Civ. Prac. He Mr. Wendt’s death. 74.351(r)(6). addition, § the paralysis because anesthesia Rem. Code a patient leave to breathe on showed that Dr. Mаzzei unable CV would own, requires qualified opinion. “the to render such requirement Although specifically to serve an did re name, Wojciechowski port identify arises at of litigation outset particularity the responsi opportunity plaintiff identified before pro significant ble function: the anesthesia party engage discovery, including depositions intubated Mr. See taking vider who Wendt. oral the defendants. im Ogletree, 74.351(a) § (report 262 S.W.3d at 321-22 Prac. & Rem. Tex. Civ. Code plicated unnamed must (report doctor when directed served later than 120 solely performed by days filed); doc after defendant’s answer (ref tor); 74.351(s) Troeger, (limiting discovery 274 S.W.3d id. until af “previous erence to implicated ter claimant dentist” serves the As report). objec such, require sole such as the defendant to statute Itself contemplates that adequacy report); tion to the quality the Maris the amount of avail .evidence Hendricks, (Tex. 379, 262 v. at the of,drafting S.W.3d 384-85 able time the (ex 2008, denied) App.-Fort pet. reports Worth will than that less available at pert report sufficiently implicated conduct summary- trial on the even merits the physician’s judgment stage. Wright, assistant who was not identi 79 Cf. (the by good-faith fied to name constitute effort 52 not all “need marshal the statute). Palacios, the comply plaintiffs proof’); to with 46 S.W.3d at . 878 Wojciechowski relies several precedents ap from alleged courts of deficiency intermediate which Dr. Wo- peals support argument jciechowski to the complains ques- that arises reports implicate his presented by not be fact did- conduct the rec- cause not “by he was identified name ords themselves: who the who doctor cases, In performed otherwise.” each of the In these howev intubation? reliance on er, records, the absence the name those reports defendant’s the finding was not sole acknowledge explain the reason for that case the factual implicated or her by ambiguity identity conduct was not the of the anesthe- Moreover, report.5 reports siologist, they in this attempt but do re- nоt good case it. For example, effort to com solve constituted faith Dr. Memon’s re- ply they explains port Wojciechowski the statute because informed that Wojciechowski specific listed as conduct record but anesthesiologist plaintiffs question pro sug- called into states other facts in the records gested vided a court to a “Dr. person basis trial conclude Smith” Potts, E.g., performed them claims had merit. intubation the catheteri- 392 630. identify S.W.3d at zation lab. But the reports do staff”); Gonzalez, 5. See Hosp. Haskell v. Acres Senior Laredo Seven Jewish Tex. Co. v. Inc., Servs., 754, 255, Care (Tex.App.-San 760-61 258-59 Antonio 2012, 2012, (Tex.App.-Houston pet.) pet.) (expert report identify no [1st Dist.] no did not (nurse’s implicated by report any by conduct was not defendant name and failed assert by wholly anyone wrong); mention name anything did not her did Velandia v. Contreras, S.W.3d 674, any way in (Tex.App.- failed to address she which 678-79 Dist.], 2011, pet.) (expert care or [14th breached the standards of Houston no Holden, alleged injury); anyone any did Rivenes 257 S.W.3d not did v. indicate that 332, 2008, Russo, (Tex.App.-Houston thing wrong); Apodaca Dist.] 228 S.W.3d [14th ref’d) (ex pet. (expert report specifically (Tex.App.-Austin pet.) referred pert appellant report specifically but refer to codefendants did not identified doctor who by position identify name or was not sued but the sole included did onl y defendant). vague "hospital references conduct Justice, Keyes, concurring' in Evelyn provider and ex- V. function anesthesia part part dissenting in negligence contrib- plain how doctor’s death. to Wendt’s uted Mr. interlocutory appeal from the This is ambiguity identity factual about This denying the trial court’s order defendant- affect does not our physicians’ dismiss motions to under reports satisfied conclusion that Improve- Insurance Liability Medical event, statutory requirements, or in (“MLIIA”) ment Act failure of good faith effort to objective constituted plaintiffs expert report meeting to file an grant required A comply. Civil requirements Texas Practice only “the a motion when dismiss 74.351 Remedies Code sections objective good represent an faith does of medical respect 74.401 their acts comply.” effort to Tex. Prac. Rem. Civ. negligence. 74.351(l). light of the standard Code Although recited review, we conclude cannot review, it has ignored correct standard of denying Dr. court abused its discretion conducting analysis. its that standard Wojciechowski’smotion dismiss. reports It to subjects the three a Moreover, briefing in on interlocu- their rigorous de review rather than the novo suggested tory have appeal parties the by for called review of discretion for abuse discovery to a that further has led resolu- Code, Practice and Remedies the Civil ambiguity regarding tion the the of factual statutory requirements for construes the responsible anesthesiologist. of identity the malpractice expert reports and the interlocutory appeal, this Because requirements proving for judicial the relia- our of this does hot end case disposition experts to strictly of so as assure the bility litigation par- the instead returns the but many prejudice with of meritori- dismissal proceed ties to the court to trial district to expert report stage-that claims at ous the on merits avail of the themselves other is, discovery to than prior to deter —rather procedural seeking for if avenues dismissal claims, as bringing of intend- the frivolous showing conclusively there is evidence expert report requirement. ed the See, e.g., wtong the been party has sued. Tex. R. Civ. P. 166a. Returning to trial this case the court so plaintiff may attempt the to surmount trial We hold that the court did err virtually the the insurmountable hurdles by denying Wojciechowski’s motion to the majority establishing has created for dismiss, sole we overrule issue. reliability expert reports creates the prej- very possibility real dismissal Conclusion against cardiologist of all the udice claims reverse.the trial court’s denial of Dr. We severing alleged negligence in whose act dismiss, Mangin’s motion to re- we artery patient’s during emergency the to the mand trial afford placement of stent initiated chain a ,30-day Wendts a extension cure together directly and negligent acts that deficiency set forth pa- proximately the death caused proceedings. for further affirm the We prolonged oxygen lack of tient Wojciechowski’s court’s denial though, And this is so even under brain. dismiss, and we remand to the motion law, controlling all reading reasonable proceedings. trial court further satisfy expert reports fully the re- three quirements of the Texas Civil Practice and Keyes, dissenting. Justice Code, However, and all three wit- majority Remedies also concludes expert report of Dr. Paul nesses are reliable. W. Dlabal, practicing cardiologist, is not an majority concomitantly ap- fails objective good comply faith effort to adequately the situa- preciate address Mangin, statute as to Dr. also a car- which, here, one more than diologist. And it concludes the expert proximate physician’s negligence was Dr, is, Mazzei It patient’s ignores thus cause harm. likewise, objective good faith effort repeatedly in each of referenced fact— comply requirements with the for an reports the death three medical —that expert report Mangin. as to Dr. It then Wendt, from patient, Donald lack Memon, that the expert report finds of Dr. following brain an emergen- an anesthesiologist as an certified “ad- cy procedure proxi- catheterization Provider,” Life Support vanced Cardiac initial mately rupturing both the Dr. Mangin deficient as to on several descending coronary of the left anterior view, grounds, principally, but its (“LAD”) artery emergency cath lab failing to establish Dr. Memon’s creden- cardiologist, Mangin, Dr. Earl opine tials of care of of the stent placement It, and the failure cardiologist. therefore, reverses the cardiologist get heart pumping denying trial court’s Dr. Mangin’s order motion to again pooled up in a dismiss tamponade as blood remands case against with instructions to pericardial sac so that heart the court to opportu- afford Wendts an not рump could to his And blood brain. cure, nity possible, if deficiency ignores signifi- likewise thirty within days. Memon’s cance of the fact expert opined that each delay to getting oxygen that was the in I cannot on conclude these the and facts for substance of expert reports— Wendt’s brain well over hour the these three multiple negligence when there are acts of performed cath CPR lab while that specifically to attributable more than one of any was the cause death —not Wendt’s together proximately defendant any of specific person. one act one the on which harm a-medical liabili- trial court the' expert The found three ty suit is based—that either two reports adequate Mangin, as to both defendants, Wojcie- or Dr. cardiologist emergency the the placed chowski, is to of .entitled dismissal the ruptured stent heart and against prejudice him with claims ad- LAD, Wojciechowski, Dr. Zbigniew and of discovery and a trial on vance without attending the in the emer- ground on expert the merits the that the gency cath majority lab. The holds reports enough did not contain information reports two of expert the three of —those satisfy appellate the the trial court —not anesthesiologists Q. Dr. Abdul Memon and specific by physi- court—as the act J. Willliam Mazzei—are sufficient by directly cian that itself caused the harm against to proceed allow case Dr. Wo- the Finding on the of which suit is based. all jciechowski for acts omissions in adequate, reports individually either or treating Sugar Land Methodist together, permit- read as expressly when 9, 2012, Hospital January days on two by plain both the of Civil language ted after pains. his admission for chest The Practice Remedies Code section therefore, majority, affirms trial 74.351(i) I by controlling authority, Wojciechowski’s court’s of Dr. mo- denial affirm the trial court’s of both would denial dismiss. doctors’ motions to dismiss. has, analysis in its . Civil Practice and Code The Remedies I believe this:case, provides: ap- elevated'the'Standard reports expert' medical pellate rеview claim, ‍​‌‌‌‌‌‌​‌‌‌​​​‌‌​​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌‌‍.liability, a claim- health a abuse far above the discretion shall, day than later the 120th ant Texas trial court established original is answer each defendant’s after Court, opinion repeatedly and its. Supreme filed, or the party’s serve party I also believe standard. contradicts reports, or- attorney expert one more contradicts corn- majority opinion expert of each with vitae a.curriculum Supreme precedent Court trolling Texas for physician listed each on a conflict course 'this Court puts care; provider against whom health appellate our sister ‘'intermediate with liability The claim: asserted. for .date past with' decisions even courts—and serving report.may-be extended will to ar- inevitably lead this Court—that agreement par- the’ affected written opinions regard- (cid:127) bitrary inconsistent physician ties. Each defendant adequacy expert re- ing the of'medical provider health care conduct is whose ports, harm to law. great with implicated in a must file objection especially sufficiency serve case are issues because, MLIIA, later of than not later under the ex the. important day pert statutory are threshold re 21st after reports the.date 21st.day after date or the quirement suit for maintenance .served filed, failing defendant’s against physician. answer is which negligence are, objections-- Therefore, all claim failure waived. dismissal satisfy Ofsection 74.351 Tex. Civ. Prac. Rem. Code Ann. . prejudice entitles the.defendant 74.351(a) (Vernon § If the Supp.2014) Thus, attorney’s-fees.- appellate if Claimant fails serve as; disagreement 'falling courts are into shall report, the court enter require, impor it is those standards what dismissing preju ah order the claim “with supreme clarify what is tant that claim” refiling dice require satisfy the threshold required to awarding attorney’s fees reasonable 'statutorily sufficient re ment However, 74.351(b). costs. Id. multiple ports especially in cases with de — expert report If an has' not been served fendants, committed an of act each whom period specified within the Subsec- proximate a negligence of that was cause (a) the report of because elements of show that harm the the —to deficient, may grant are found the court plaintiffs meritorious so that thé case is 30-day one extension claimant to discovery and trial on proceed can case If deficiency. the order to curé the important is equally merits. the It claimant not receive notice of the does ‘clarify' further supreme court the the the ruling granting court’s extension un- appellate of 'abuse discretion 120-day til after the deadline has expert reports. of medical review passed,' 30-day the extension shall then plaintiff run from first re- the date the Civil Reports under Expert Medical ceived notice. the Practice and Remedies Code 74.351(c). §Id. Chapter 74 Regarding qualifications of an A. Civil Practice and Remedies Code ex- the a pert against physician, in a 74.351and witness suit Sections 74.401

717 pro- the and Remedies for admitting testimony Civil Practice Code reason if the departs vides: court from the criteria. (a) involving In suiti a health care (Vernon 2011). §Id. 74.401 physician

liability against claim B. Standard of Review patient, or injury person of a death The cor recites the generally may qualify expert witness on the .an rect standard.of mal review medical issue of physician whether the departed practice claims as Texas stated accepted standards medical care Supreme Court. The standard is elaborat only.if person physician ais who: below,to clarify ed how is to be statute (1) practicing is at the time medicine appellate construed courts under testimony or prac- is given such . controlling law medicine, ticing the time the -claim at arose; “Plaintiffs suing on health liability (2) knowledge of accepted has stan- claims must serve each defendant with an diagno-. dards medical care-for the expert report ... or face dismissal of-their sis, illness, or treatment of the Moreno, P’ship claims.” TTHR Ltd. v. < injury, or condition involved (Tex.2013); see Tex. Civ. claim; and (service § & Prac. 74.351 Rem. Code Ann. (3) qualified is on the basis train- expert report required). “A valid ing experience or to offer an [Chapter under pro 74] must opinion regarding those accepted (1) summary a fair vide: standards care; (2) medical care. in which manner provider or health care failed (3) standards; to meet those the-caus (c) determining is whether a witness relationship al between that and the failure qualified on of training or basis ex- alleged.” harm P’ship, TTHR Ltd. perience, the court shall consider wheth- (citing Tex. er, time claim arose .the at the Civ. Prac. Rem. 74.351(r)(6)). “A causal rela testimony given, time the is witness:. Code Ann. tionship is by proof that established (1) other board certified negligent or omission constituted act training or experience substantial bringing factor in substantial about -to practice area medical relevant absent, omission, harm and act or claim; Cornejo harm would have occurred.” (2) actively practicing medicine Hilgers, rendering medical rele- services (Tex.App.-Houston denied). 2014, pet. [1st Dist.] vant to claim. sufficient,that, reports, their “[I]t (d) apply shall the criteria experts that be ‘state[ chain events ] (a),- (c) specified (b), in Subsections a gin- provider’s negli health in determining an is expert whether ” gence injury.’ Id. at personal end qualified to offer expert testimony Cervantes, (quoting 126 v. McKellar 367 the de- physician issue whether the 478, 485 (Tex.App.-Texarkana S.W.3d parted accepted standards medi- 2012, pet.)). depart cal may but from those if, circumstances, expert report criteria under the “The not marshal the need evidence,” court there good every plaintiffs determines is a bit the Jerni (Tex. 91, testimony.. gan Langley, reason to admit the v. expert’s 93 S.W.3d 195 2006), the court shall state on the but it to a “explain, record must reasonable 718 good comply” faith effort to with the statu why breach caused how the

degree, presented.” tory expert report. definition an on the facts injury the based Tex. 74.351(7). § Casas, 526, 539-40 Civ. 328 v. S.W.3d Jelinek A & Rem. Code Ann. Prac. objective good faith (Tex.2010). summary’ report qualifies is аs an a ‘fair "While comply pur if meets the two a of the effort to it something full statement less than (1) expert report in that it poses it was of an of care how applicable standard con specific breached, summary set informs the defendant fair must even a (2) pro giv plaintiff questions, and expected, but not duct the out care was what Tex., a court to conclude vides basis the trial en.” Care Ctrs. Am. Transitional (Tex. 873, Palacios, have merit. plaintiffs 880 the claims 46 v. S.W.3d Inc. Cerda, 248, Loaisiga 260 2001). expert for an to v. S.W.3d “It is 379 not sufficient (Tex.2012) Scoresby, at (citing the 346 S.W.3d he or she knows state that simply 556, Palacios, 879). In 46 [or and concludes it was expert report determining A re whether an is expert Id. medical not] met.” objective good comply, to a enough to an faith effort port provide must information (1) look may only it must the court at the document itself purposes: inform fulfill two specific plain “because all information relevant conduct the defendant (2) question; it is four inquiry [its] tiff into contained within called has Wright, for the court corners.” S.W.3d at 52. provide a basis trial 79 must merit. the claims have conclude If report the court be finds defi Santittan, Scoresby v. 346 S.W.3d objective good cient—but nevertheless (Tex.2011); Cornejo, 120. 446 S.W.3d at may grant effort to comply faith —then formality re “No are particular words plaintiff thirty-day extension to one will not suf quired, but conclusions bare deficiency. cure See Tex. Civ. Prac. 556; Cor Scoresby, 346 S.W.3d fice.” 74.351(c); § Scoresby, Rem. Code Ann. nejo, 123. 446 S.W.3d at (“We thirty- that a conclude S.W.3d at merely expert’s day extension cure deficiencies report A states expert report granted report if the may Bowie Mem’l is insufficient. conclusions (Tex. statutory deadline, if it Hosp. Wright, served 79 S.W.3d 2002). Instead, a of an must individual with expert provide contains merit, expertise claim if must connect that the basis for statements and pre implicated.”). defendant’s conduct is ultimate conclusions facts However, hearing if it after particular plaintiff appears Id. A a case. sented fully report represent good-faith does not may file more than onе comply of an statutory requirements. effort satisfy definition sufficiently specific See Ann. Tex. & Rem. Code Civ. Prac. 74.351(i); Cornejo, also court see conclude (“The merit, requirement claims have the court must dismiss at 120 utilizing against one claims more than that defendant. may be satisfied may Cornejo, at 120. expert report, and read reports together.”). against Dismissal a claim provider for challenges ade or health care failure file defendant

When meeting requirements of timely report quacy expert report, of an the trial court refiling “only prejudice if it grant a to dismiss section 74.351 with may motion court, or against claim health appears hearing, after provider objective an care entitles the defendant not represent does

719 attorney’s Prac. & not fees. Tex. Civ. disturb a trial ruling court’s on the Rem. 74.351(a), (b); qualifications see Obstetrical of an as expert. witness an Code Ann. Assocs., McCoy, P.A. v. Gynecological Id. at 151. 96, (Tex.App.-Houston 101 283 S.W.3d Adequacy Expert Reports of of Drs. denied) 2009, (holding pet.

[14th Dist.] Mazzei, Dlabal, and Memon timely adequate not plaintiff if does serve expert report particular defendant Dr. the cardiologist claim, liability care trial court has health deceased, artery of perforated the anything no discretion do other than Wendt, Donald performing angio while an prejudice). case with dismiss plasty implanting Wojcie- stent. Dr. chowski anesthesiologist duty was the ruling review trial court’s on a We in the emergency lab catheterization when to dismiss pursuant motion section there, Wendt was taken he “prepared Palacios, for 74.351 abuse discretion. signed the report indicating anesthesia 878; Cornejo, 446 46 at S.W.3d S.W.3d ” present he the procedure. It A trial 119. court abuses its discretion if part remains unclear which of Wendt’s in an or arbitrary it acts unreasonable however, Wojciechowski provided, Dr. care any guiding without manner reference because medical record also indicates Jelinek, principles. or 328 rules S.W.3d appears “Dr. Smith”—-who to be added); (emphasis at 539 Walker v. Gu anesthesiologist also “an Stetch —was dur tierrez, 56, (Tex.2003); 111 S.W.3d 62 Cor ing the periods” spent relevant 446 nejo, reviewing at 119. When S.W.3d the emergency cath lab. matters committed to the court’s dis cretion, appellate may court substi issues, Mangin argues three judgment its own that of tute for the trial the reports inadequate as to him were 52; Wright, court. 79 v. Walker (1) because an two —which Packer, 833, (Tex.1992); 839 experts qualified are—is not Cornejo, appellate An S.W.3d at 119. opine on the standard inter- may not court reverse abuse discre (2) ventional cardiologist, reports did simply because would have decided state standard differently. Aqua matter v. Downer allegedly manner which breached Inc., Operators, marine 701 S.W.2d it, (3) reports explain failed how (Tex.1985); Cornejo, S.W.3d at breach care caused 119. injuries. Wendts’ Moreover, can party when a show that issue, Wojciechowski argues In one d expert substantially develope by denying that the trial erred testimony more than one field can come reports motion to are dismiss because qualified expert from the those as to deficient as so to constitute Heise, Broders fields. him. (Tex.1996). offering party The- must I all of expert re- would hold that “knowledge, show together satisfy the ports singly read skill, experience, training education re requirements sections 74.351 74.401 garding specific issue before the court to both defendants. qualify give would which Dr, Expert Report A. of Mazzei (in particular subject.” on the Id. omitted). quotations cursorily ternal Absent clear dismisses the ex discretion, supreme -anesthesiologist abuse court will Mazzei pert re- Mangin. Texas with respect providers to Dr. health with no in the han- spect problems made to “Dr. Mazzei’s ventilation opines that dling emergency of an conclusions rele catheteriza- assertions and drew cardiologist any or to to Dr. tion. vant - “standing thus alone generally” and Mazzei that stated he had reviewed satisfy any of the three report did not records, he set out Wendt’s medical and statutory requirements to expert report history of his en- treatment: Wendt Mangin.” Op. at It concludes 706. room emergency complaining tered Wojcie adequate as to Dr. was diagnosed “acute pain chest and was Id. at chowski. 24-25. “brought myocardial He infarction.” was emergently to the cardiac catheterization provide adequate expert To an where distal lab mid and- report, required provide stenoses was Mazzei [coronary arteries] found. “(1) LAD were summary a fair of the stan and was care; (2) angioplastied These were a stent manner in which dards distal LAD tom placed, but the was and provider[s] physicianfe] health care began accumulating in standards; (3) pericardi- blood failed meet those and um.” recounted the various Mazzei relationship' causal that- failure between air- here, attempts alleged,” unsuccessful establish and the harm Wendt’s Wendt, attempt way for use of CPR to following death cardiac arrest heart, to restart sur- eventual Sugar Hospi Land admission to Methodist gical repaired intervention that the dam- P’ship, Ltd. tal. TTHR 401 S.W.3d at place- age artery during caused to (citing Prac. Tex. Civ. Rem. Code Ann. . of the to his ment stent and liver 74.351(r)(6)) CPR. physi- opined Dr. Mazzei that he stated, the' sur- “Although Dr. Mazzei practice

cian in Cali- licensed medicine successful, suf- Mr. had gery Wendt fornia, completed “fellowships who had damage brain fered massive anoxic anesthesia, anesthesia, vascular thoracic opined: He expired days two then later.” critical care the Massachusetts Gen- Boston, Massachusetts,” Hospital patient requires air- emergency eral When did, management way that he certified in anesth- as Mr. had been board esiology practiced requires standard of care the anes- April since had Diego thesiologist University quickly patient’s of California San assess the condition, February perform since School evaluation Medicine was, bring report, airway, necessary po- at the time “Clinical tentially equipment drugs Professor of the De- Vice Chairman needed partment Anesthesiology,” “fre- Of patient. and intubate ventilate assure, is to quently provide[d] primary importаnce regard- adults anesthesia chosen, proce- of drugs catheterization less or methods undergoing cardiac thoroughly adequately dures and familiar remain ventilat- [was] in the tear in problems may ventilation arise Because of the Mr. Wendt’s ed. such, bleeding coronary artery that was thus course As emergency.” it. pericardium, “familiar of care with the standard into his was reasonable to assume he could conscious- applies the Institutions and health lose providers ness at moment and then lose the in Texas.” He thus showed ability his air- fully qualified testify protect he was as to the and maintain way, ability standards of care of both as well as lose the institutions ¡of Thus, the anesthesiologist, breathe. standard care Dr. Wojciechowski, required [placed signed be- un- that Mr. anesthesiology Wendt report, by (1) immediately providing and] der anesthesia intubat- a fair summary of the appli care; (2) ed. cable the manner in which the provid or health care prop- Dr. Wendt Mazzei was stated ers to Donald Wendt failed to meet those anesthesia, erly placed an- under “but the standards; (3).the causal relationship provider esthesia was'unable intubate between that alleged. failure and the harm using laryngoscopy” standard other requirements All these are explicitly saturation Wendt’s methods referenced and satisfied Mazzei’s levels dropped low critical levels.. report. majority As the reaches the same heart, saturation his levels weakened I , conclusion, concur with- the which caused cardiac arrest. Mazzei Dr, opinion as -to Mazzei’s with re stated, spect to Dr. Wojciechowski. leaking peri- into ‍​‌‌‌‌‌‌​‌‌‌​​​‌‌​​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌‌‍Although the blood cardium made it more difficult Mr. respect Mangin, With to Dr. the report pump, Wendt’s heart to it was the low recites Dr. qualifications Mazzei’s with re saturations that heart to ar- spect to testifying prob ventilation as caused..his rest. The saturations were caused low lems in the of an handling 'emergency by inadequate Although ventilation. states, cardiac It catheterization. then attempted рrovider anesthesia to venti- “Because of the tear in Mr. Wendt’s coro Wendt, late Mr. took too much he/she nary artery that bleeding thus into adequate time to re-establish ventilation. pericardium, his it was reasonable as This was standard of below the care and sume he could lose consciousness at led to damage Mr. Wendt’s anoxic brain any moment and then lose the ability subsequent demise. protect airway, and maintain his as well He then Thus, the ability summarized: as lose to breathe. required standard that Mr. Wendt

Mr. previously Donald Wendt [placed under anesthesia and] healthy 57-year-old immedi white male who suf- ately- intubated.” While states myocardial fered an acute infarction. placed that he was properly under anest undergoing coronary While re-vasculari- hesia, states, lab, “Although it also zation in the cath LAD cardiac his blood leaking into pericardium was tom accumulating and blood started made ' more difficult for around his This Mr. heart prompted heart. pump, it was airway need for the low saturations emergency manage- ment, his heart caused to arrest. The low satu- provider which an anesthesia rations were by inadequate responded. provider This venti anes- induced states, Finally, thesia lation.” stopped which Mr. “While own, undergoing breathing coronary but re-vascularization in then failed lab, cath re-establish LAD [Mr. Wendt’s] sufficient ventilation before accumulating and blood cardiac arrest tom occurred. This failure started d prompted aroun heart. This was below the and was airway for emergency management.” need proximate cause the cardiac ar- rest damage that led to brain anoxic I expressly read these statements ultimate demise. implicating act Mangin’s tearing clearly artery during placement Mazzei’s satis Wendt’s expert requirements allowing fies the thrée as-'to stent and blood -accumulate coronary heart, perforation artery. its impeding ability to lar around causation, brain, being acts -As he-wrote: “The primary oxygen to the pump that, together of deаth was the standard cause cerebral anoxia. below inability to intu- anesthesiologist’s coronary perforation and its with the Had attend long delay in Wendt, getting and the bate ant occurred intu- .surgery treatment, he could be to where underlying Wendt of course the con artery repaired, constituted was, and his bated proba dition in medical reasonable . e oxygen of loss of the proximate cause a bility, survivabl ” See Wendt’s death. brain the Op. at On the basis of this character- 707. (“[I]t is suffi- Cornejo, 446 S.W.3d at 123 ization, majority the concludes: that, reports, experts in their cient report satisfy statutory fails to This begin of a chain events with a ‘state[ ] identify it not requirements because did provider’s negligence and end health care, any applicable of assert McKellar, ’’); injury,’ in personal Mangin Complywith’ Dr. failed same). (holding at 486 And explain applicable standard of or only abuses discretion when trial court its efrom departur how arbitrary or in an unreasonable it acts of care caused Mr. guiding without manner reference & Rem. death. Prac. Code [Tex. Civ. Jelinek, 328 at principles. rules 74.351(r)(6) ]. Because' Dr. Dlabal’s 539; Walker, 62. I cannot 111 S.W.3d merely report the medical summarized say that the court abused its discre- records, Mangin Dr. it not inform of did finding Dr. these standards in. under ques that the had plaintiffs conduct report adequate as to both Mazzei’s nor did provide tioned a basis Wojciechowski. Mangin Dr. and Dr. claims trial court have conclude Expert Report B. Dr. Dlabal Palacios, 46 merit. See 879. agree majori- I likewise do not with the agree Id. I not this characteriza- do with conclusory two-paragraph ty’s dismissal report majority’s tion of with respect Mangin report with to Dr. conclusion. Mangin- practicing Dr. Dlabal—like contention, Despite .majority’s only cardiologist cardiolo- only not Mr. Wendt’s Dlabal summarized objec- in opine thé gist case—as records, opined he also comply faith good tive with the effort oxygen to cause of loss of. death was agree majori- Nor I with the statute. do (cerebral anoxia), a. brain which was conse- mentiоn Dr. ty’s failure even to Dlabal’s quence of treatment for a Wojciechowski. respect with to Dr. attack, particular “in survivable heart paragraph, In one dismiss- perforation a-coronary artery.” He de- Dr. Dlabal’s as made faith es bad negligent how scribed detail actions It respect Mangin. to Dr. character- ' attending cardiologist both the only, saying izes the attending —neither Dr. Dlabal’s reviewed and sum whom he name-r-caused identified marized the from the medical records oxygen to lose to the brain for a days hospital two Mr. Wendt period prolonged time. opined his He before death. As report, loss of stated Dlabal cause death was brain, complications of certified .in Medicine and consequence “board Internal Diseases, and been in particu [has] for a attack —in Cardiovascular treatment heart cardiology practice probability,” since medical the active would have time, vi- -Dr. incorporated curriculum died. At 1980.” He charge of by reference. He further stated: Wendt. tae practice cardiologist, I have my In surgeon A cardiovascular and anesthesi- patients and treated numerous evaluated called; ologist were Dlabal devotes presented symptoms with the who paragraph fumbling around signs as exhibited Donald Wendt anesthesiologist, “[djuring time the [which] particular, I have evaluated 2/7/12. hy- into progressively deteriorated pre over 2500 patients and treated potension and cardiac arrest for which emergent in an sugges condition sented initiated,” CPR was with oxygen satu- infarction, in myocardial tive of acute 70%, and, all, ration dropping CPR “[i]n cluding patients numerous acute nearly 60 continued for fninutes.” myocardial anterior and anterolateral in that, Dr. Dlabal’s after states I am with intimately farction. familiar that, patient operat- was taken to the evaluation, treatment, prognosis and room, ing in the liver caused laceration presenting patients symptoms for and repaired, by the CPR in- was and “[a]n for this signs shown in the records pump placеd traaortic balloon ... for was patient. support,” circulatory “[mjultiple post- but that his opinion He stated was based on complications operative includ- were noted information the medical he had records fibrillation, failure, ing respiratory atrial “not but was limited thereto reviewed and test, liver function abnormal anoxic and subject change should find- additional secondary to injury hypoxemia brain [ab- brought'to ings on matter.” bear oxygen in normally low and blood] history Dr. Dlabal recited thé of prolonged The patient shock.” showed treatment emergency Wendt’s encephalopathy,” damage “anoxic or brain operating room. He stated that arrest, regain due cardiac “and did Sugar at presented Land Methodist consciousness.” pain than Hospital chest of less two facts, of those On the Dlabal basis The initial hours’ duration. examination gavé Opinion Cau- Regarding “Medical hypertension tachycardia, showed sation”: emergency he “was taken to the catheteri- laboratory consequence where he found to com intraoperative zation As plications coronary hy- high-grade perforation, have stenosis at the level descending distal left associated with poxemia hypotension, mid and anterior (LAD) coronary artery.” tamponade circulatory A col stent cardiac lesion, placed CPR, in the LAD distal prolonged pa but the lapse requiring perforated during irreparable damage LAD procedure, tient suffered brain intrapericardial bleeding” Despite on cerebral “with the basis anoxia. perforation, recovery myocardial “pericardial which caused cardiovascular infarction, tamponade.” life-threatening cardiogenic This is a sit- shock arrest, patient’s in which recov uation the heart is so filled with brain did function, expand oxy- -it nor regain fluid that cannot er did he pump conscious gen primary brain. It act of was also an ness. The cause death was malpractice Had step coronary perfor that was the first caus- anoxia. cerebral death, which, ing ation its Wendt’s without attendant treatment, on not occurred in course Dlabal’s based “reasonable 724 . was, in rea ment initial underlying condition of the stent He caused the artery, probability, injury by tearing swrvivable. causing medical

onable pool up heart blood so that around added). (emphasis Dr. Dlabal Report of pump could not This brain. I, report, unlike As Dr. Mazzei’s emergen situation for the need occasioned the trial majority, cannot conclude that cy repair ruptured artery of the by finding Dr. court its discretion abused oxygenation keep alive until adequate. See Pa expert, report Dlabal’s corrected, that situation could be 878; lacios, Cornejo, at S.W.3d 446 . Dlabal’s Dlabal’s states Dr. Jelinek, 119; at see also makes it that Dr. obvious failed (trial abuses its discretion court carry responsibility. out-this arbitrary or f it i acts unreasonable 74.351(r) to any guiding manner without reference only Section requires Wright, principles); rules or expert’s report provide fair “a (“When matters reviewing committed summary expert’s opinions ... re discretion, appellate the trial court’s care,” garding applicable standards of- judgment may not substitute its own identify "the manner which the care court.”). that of rendered or health care standards,” provider meet the failed Dlabal, of great deal basis explanation contain an of the “causal rela in treating pa- experience “over tionship inju that failure and between the presented in an' emergent tients con- who harm, ry, damages claimed.’’ Tex. Civ. in- suggestive myocardial dition of acute 74.351(r)(6). & Prac. Dr. Ann. Rem. Code farction,” reports that effectively Dir. stated, coronary perforation Dlabal “Had Mangin, cardiologist placed the the - oc complications attendant not stent, fell below the standard ifs treatment, curred course the the by perforating ar- in. cardiologist Wendt’s was, in underlying condition reasonable to fill tery, causing blood the sac around Thus, probability, medical survivable.” compress thе so that heart heart the con Dlabal’s necessitates expand, causing “hypoxemia it not could perforation clusion that ar of Wendt’s or- hypotension,” with loss' of associated tery by Mangin initial I it oxygen to the brain. do not find nec- —done —was cause that all the followed essary explicitly that and was of his this, proximate therefore a cause say of.care that below standard cardiologist charge in death. of a in patient emergency cath in cardiac lab whose Likewise, out, clearly Dr. Dlabal sets in stent, just placed has because heart here, greater much I have detail than room for other his leaves many by the missteps committed anesthe- than that the proximate conclusion initial siologist getting in oxygen Wendt’s cause of to have Wendt’s need ventilation brain be able to onee heart ceased perforation brain was the restored pump missteps included blood— Mangin of his LAD that caused “esophageal intubation,” instead of intuba- pericardial fill so that blood sac them, bring air lungs compres?

Wendt’s heart could causing- “bag valve-mask a need venti- oxygenated pump blood brain. ultimately lation tracheal intuba- ... charge pa time, During was in tion.” all blood Wendt’s danger falling tient’s care from the moment the level was -into the' emergency place “progressively room for zone and his dete- condition entered ruling ar- view of a trial hypotension into court’s the suffi riorated initiated,” ciency expert-report: rest for which CPR a medical Did -the court, nearly for. hour- CPR continued any trial act without reference to operating taken to the before Wendt was guiding- rules or in principles determining coronary perforation room where the the report was sufficient. See Jeli Thus, surgical repaired. repair hap- nek, 328 S.W.3d at 529. pened “a so late that suffered summary, In to rec refuses fibrillation, failure, abnormal respiratory ognize an injury malprac a medical test, anoxic brain injury liver function may case tice more than have one cause— sеcondary hypoxemia prolonged and' may from more than result one shock,” resulting in death. act, negligent being with both substantial I call this a clear statement acts causing factors in the harm professional below care of harm would have occurred without cardiologist the anesthesiolo both the both of negligence. acts Yet this court has gist care that charged di Wendt’s specifically recognized that possibility rectly caused death. But ma previous Cornejo, cases. See 446 S.W.3d

jority, expert report, in its review (“[I]t that, at 12 sufficient their language refuses-to translate'the reports, experts ‘state[] chain of or to used draw reasonable inferences begin a health pro events statement; im physician’s Most negligence personal vider’s end in account it fails to take portantly, into ”) McKellar, jury.’ (quoting premise injury may that an basic of law 485). cause, than proximate have more one nothing proximate cause is but cause in iny view, is' nothing required more Invs., plus foreseeability. fact See W. Inc. satisfy all requirements of section Urena, (Tex.2005) 162 S.W.3d 74.351(r) expert report than that the show (“Proximate two cause elements: three negligence duty, the elements of — cause foreseeability,” and in fact both breach, proximate inju- and causation of evidence; by which must be established ry agree I cannot satisfied. —are “The fact is test for cause whether the requires the statute re- construction or act factor in omission was substantial viewing court to disregard reasonable in- causing injury the which harm without the ferences from statements that es- occurred.”); would have Aleman duty tablish the or standard the ’ Co., Ben E. Keith standard, tó failure meet and the 2007, no (Tex.App.-Houston [1st Dist.] relationship between the breach and causal exists, pet.) actor, if (“Foreseeability that, injury. .agree I And cannot person intelligence, as a ordinary should sufficient, finding Dr. to be report Dlabal’s dangers anticipated negligent have arbitrarily capri- trial court acted and others.”). act for In the creates medical to ciously any guid- and without reference report specifically, context causal rela “[a] ing or principles. rulés tionship proof is established Thus, I agree majority with the do negligent act or omission constituted a the trial its' discretion court abused bringing substantial factor in about the omission, accepting report adequate Dr. as harm or Dlabal’s and absent the act Dr; me, is a Mangin. necessary harm as to it Cornejo, To would not have occurred.” opinions inference from stat at 123. follow the facts And fails to for in Dr. that it appellate re Dlabal’s is below established standard ed to taking steps of a car restore aera- necessary professional standard , artery causing diologist tion to before he perforate to blood suffered Wendt’s pericardium in the damage blood to accumulate due to loss of brain irreversible' unable to to to beat unclear), the heart opine, I oxygen is could not as blood, which was life-threaten does, aerate majority Dlabal’s to ing caused Wendt’s heart situation that good not an objective faith effort to for persist stop beating and allowed comply Op. to with the statute. surgical before interven at least "hour 706-07. It the defect. likewise repaired Expert Report C. of Dr. Memon for professional care below the standard Lastly, majority considers the anesthesiologist patient’s' to intubate a Memon, is an like Mazzei lungs, to take so

esophagus instead anesthesiologist. As re- patient that with .the other long to his blood intubate far damage, applies brain too oxygen ports, causes strin- level personnel try gent to CPR to then medical a standard of Memon’s review Dr. of both the car presence qualifications Mangin’s an hour in the to on Dr. opine , diologist Wendt, before my treatment of It also view. taking surgery repair into Mangin, finds the as Dr. deficient oxygen the tear restore circulation although adequate Wojciechow- to Dr. report supports his brain. Dlabal’s I adequate ski. would find it to both. acts that all of these consti thе conclusion that, majority acknowledges “[t]o professional from the departures tuted qualified determine whether a witness is of a physician; standard of care and each experience,” on his training based proximate of them cause trial court must consider whether wit harm, damages “injury, claimed”—brain ness “board certified or has other sub damage oxygen to low and death due training experience stantial in an area unprofessional injury practice claim” relevant in- coronary artery, the maladroit actively practicing he “is whether tubation, great lapse of time and the be rendering medicine medical care ser room taking fore the operating Op. vices relevant the claim.” necessary procedures performing, (quoting & Rem. Tex. Civ. Prac. Code Ann. his brain. restore 74.401(c)). that, I stating the note It acknowledges further criti “[t]he care, breach, causation, particu- “[n]o inquiry exper cal expert’s is ‘whether required,” formality or are and lar words tise or goes very matter on he which than offers much more Dlabal’s give is to at opinion.” she Id. 707 Scoresby, 346 “bare conclusions.” Broders, 153). (quoting 924 at S.W.2d 556; Cornejo, 446 at 123. S.W.3d physician may qualified pro to Thus However, if required even section 74.351 expert spe vide even when explicitly opine that the stan- Dlabal from “if cialty differs that of defendant these permit dard failures does practical knowledge is usu what they and that are below standard ally by practi customarily and done other reasonably prudent physician care of a tioners under similar the tasks and Dr. circumstances performing (whether confronting malpractice Wojciechowski perform those defen did indi- dant,” subject or if common vidually capacity, or in “the matter is supervisory standing by equally developed and by simply recognized whether without and Id.; practice.” accord Keo all fields v. certified the American Board of An- Vu, 725, 2000, (Tex.App.-Houston esthesiology 76 S.W.3d is since fellow the denied). 2002, For American pet. College exam of Anesthesiology, [1st Dist.] certified ple, appeals courts have held that ex the American Heart Associa- tion from as an perts specialty differed that of Cardiac Life Support whose Advanced Provider, has qualified the defendant when the al been certified were Ameri- can Heart Association as a leged a home health breach involved: Healthcare Provider, and is With recognize upon familiar worker’s failure to and act care that physicians applies and institu- signs emergency, of a true IPH medical states, tions It Texas. further Servs., Ramsey, Health Care Inc. v. No. 1183307, 01-12-00390-CV, As a practicing anesthesiologist, WL at *10 I am experienced 21, (Tex.App.-Houston preoperative Mar. [1st Dist.] evalua- tion, 2013, management, pet.) general airway no (mem.op.); surgical including placement practices of an preoperative postop such as and Endotracheal tube (“ETube”), care, Keo, administration of anes- counseling erative 733; patients undergoing surgical thesia infection, post-operative procedures, including Keillor, 669, (Tex. proce- Garza 623 S.W.2d Further, dures. I familiar am 1981, Civ.App.-Houston Dist.] writ [1st possible complications can arise n.r.e.); taking a history ref'd medical myocardial of an acute treatment instructions, giving discharge Hersh v. (cid:127) infarction remedial and the measures 151, Hendley, 626 155 (Tex.App. necessary if such arise. writ). -Fort Worth The further states: However, fails entirely ’ I also am familiar with and have sub- take into the rest of account Broders knowledge causal relation- stantial ease, In that the supreme instruction. ship anesthesiologist’s between an party court can held when show that general surgeon’s and traumatic failures substantially an expert developed reasonable, prudent, to meet field, testimony more than one can come accepted of medical care expert those fields. supervision diagnosis, in the Broders, 924 153-54. The S.W.2d at offer- requiring of patients treatment ventila- ing party to show required “ undergoing general anesthe- and/or ‘knowledge, skill, experi- has the surgicаl procedures sia for cardiac under ence, training education’ regarding planned emergent both conditions. specific court which issue before the would qualify give on that Dr. states Memon’s particular subject,” required opinions he is not upon, but were but were based more; and, to, do a clear absent abuse limited at Sug- records discretion, the supreme will-not ar Hospital February dis- Land Methodist qualifi- turb a trial court’s on the February decision opin- “[t]he 2012 and expert. cations a witness as an expressed Id. ions to causation herein as are There of was such clear abuse probability.” discre- based on reasonable ‍​‌‌‌‌‌‌​‌‌‌​​​‌‌​​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌‌‍medical tion here. Dr; respect opined Memon Dr. Mangin: states,

Dr. Memon’s among other he is a things, my opinion, accepted In the Texas stan- states, practice licensed five dards of care received under his Texas medical license been similar circumstances involved in air- placement the ET- way management, promptly necessitated the and correct ruptured artery complication dur tube placement or otherwise ventilate procedures subsequent ing cardiac establishing a and not patient, the via- - including placement ly emergent airway quickly departure ble is a ETtube, requires patient’s con that the the care. standard of Mangin’s rec- assessed, necessary be quickly, dition anesthesiologist ord the in- states drugs be made equipment and available correctly placed the- the ETtube , airway immediately viable be estab stomach, citing esophagus, air in the promptly adequate ventila lished it took long does not mention how during be the course maintained place- to monitor correct the Smith1 The any procedures. cardiologist’s re ment. clearly the ETtube was port states anesthesiologist, As an I am familiar . placed. incorrectly No one record with the need to establish both viable tube in long shows how the remained airway and sufficient flow to blood The correctly .place esophagus. necessary maintain levels in oxygen anyone records do not show con body prevent organ damage during was in that the ETtube the cor firmed my procedures. opinion, cardiac listening place by rect either ap- accepted standards medical care chest, a procedure standard such plicable to Dr. Mangin under similar cases. Finally, do the records not show involving treatment circumstances long it how took correct mistakes aof with an in- patient myocardial acute and resume adequate ventilation after ‘ (“MI”), failure, but is alert who farction properly the initial intubate ambulatory, generally requires show, patient. records do how transfer ang- lab cath ever, was that Donald Wendt without a for iography and stent Howev- insertion. Oxygen signifi saturation sufficient for er, requires standard cant periods during time the cardiac incidents, the doctor who sedation administers at a had blood levels hospital privileges holds do so. Fur- level low enough organ damage to cause time, common, very rup- a prolonged while not ther, period pñor to being brought surgical artery tampdnade tured and cardiac OR. are in- known a stent An esophageal intubation is not un- sertion, and the doctor performing complication common for an anesthesiol- procedure prepared but a should to promptly notice ogist, failure complication the incorrect deal placement with such promptly and/or fail- perform ure to verifying example, tamponade draining tests correct by,' that, pointed 1. Dr. Mfemon anesthesiology out in a on footnote the handwritten difficult, illegible, logical if-not it is that it Wojcie- [w]hile show records prepared who anesthesiologist Dr. Smith was chowski was the of record Dr, Mangin called to the cath lab surgery performed in the . prior operating performed procedures present room and was for the operating general Donald Wendt’s transfer to adtoinistratiori of anesthesia and the, Further, throughout anesthesiologist morning .. if an оn room. that treatment 7, 2012, February present the nurse’s notes from at the initial intubation time of attempt, itself be a catheterization lab reference that Dr. that of could serious arrived, departure'from-the Smith had attempt intubation was ed, proceed^ complete liability -the shift onto doctor who Smith was to ,ed present. proper plications circulation to es- re-establish set in. surgeon’s The cardiac systems. sential lab, arrival the cath after delay being Wendt, In called and. the the ease of Donald rec time needed to arrive, that, despite ords a show conscious seda considerable time after > lab, complications tion administered at the cath initial became obvious determined, (as patient’s pain agitation . increased can be the adminis- significantly attempt the initial of emergency drugs, tration such as Do- after stent, place resulting in a decision to above), pamine discussed at which time call an anesthesiologist general for an it is medically likely that an acute tam- However, esthesia and intubation. occurred, ponade had preventing suffi- records Dopamine show that was ad blood organs, vital cient includ- flow patient, sign ministered to. the ing the brain. Donald in cardiac Wendt was distress A ruptured coronary artery and cardiac and low pressure, blood well before tamponade are not complica common specialists calls Spe were made. s tions, however, i significant there cialists such or a chance of adequate' if aggressive survival surgeon cardiac should be called as . immediately treatment offered If soon as any problem apparent. In Mangin timely recognized the arte Wendt, the case Donald Dopamine rupture, rial and had he promptly per was administered at am according 3:45 ;formed a pericardiocentesis, proce records, showing hypotension, pri- performed dure by emergency medical or to any call for either the anesthesiolo professionals cаrdiologists certified gist, am, at 8:49 surgeon the cardiac procedure in the as'well cardiac at 4:10 surgeon am. The cardiac did surgeons, and maintained blood flow am, not arrive until significantly 1:22 Donald Wendt’s brain other organs, Donald stopped Wendt’s heart had after given ventilation, adequate it is my and CPB had been performed, and at opinion, to a degree reasonable medi patient’s which time blood probability, cal that he would not have levels had reached a enough low level to period hypoxia suffered left organ result in damage. pericardio- As him brain dead. performed centesis was not until after In summary, Donald came to Wendt arrived, surgeon the cardiac had [Sugar Hospital] Land-Methodist walk- open question leaves ivhether Dr. ing healthy alert quite age for his Mangin knew how tampo- to drain a except for pain hospi- chest and left And, nade? he was not qualified to if later, days tal having dead never possible address this two complication, ivhy regained my opinion, Mangin did Dr. consciousness. choose to do a proce Further,' damaged by brain dure with that risk? Donald hypoxia prolonged prolonged do not low medical records show Oxygen happen saturation could when Dr. ruptured noticed the when coronary esophageal Donald artery; a promptly suffered failure-to intubation, rupture tamponade rup- notice the cardiac steps and take - prevent coronary artery, damages is a tured which are deviation seri- further complication the standard ous proce- care. From the records, it can Any be seen that dure. or all the cardiac these Dr, surgeon’ was promptly not called Man- must to avoid addressed gin until 25 minutes prolonged hypoxia, damage, cardiac com- brain after brain, death, recognized and to the Mr. not remedied flow Wendt ‘would but if certainty is a reasonable quickly there of period hypoxia have suffered the ” adequate will have re- patient that the left-him Id. at brain dead.’ 708. During the in the covery. procedures majority, finding defi- report The lab, hypoxic for cath Donald Wendt was cient, picks pieces bits Dr. of Memon’s long enough signifi- time to become a of opinion out context in fact-intensive damaged cantly and unable to re- brain they them to which are found and raises cover. qua non an adequate sine of added.) (Emphasis report. Among problems, ma- other view, majority opinion my does jority ignores of the the several aspects Dr. not reflect either Memon’s accurately charged cardiologist of care a standards report. content of his credentials emergent with of a care cardiac Consequently, it finds deficiencies where actually assign that Dr. to Dr. Memon did objectively on an none exist reasonable report. Mangin which, along with breaches of reading majority The of the — states, standards, report, “In Dr. report his Memon stated italicized in the these are that the standards re- as out above. And misconstrues set Mangin prepared to quired Dr. to be import of what Dr. Memon include in did ‘promptly ruptured artery a deal with’ question opinion. regarding The tamponade, both of which are cardiac Mangin Dr. whether knew how to drain insertion, stent known tamponade is not Dr. Mem- raised because call as specialists and to for such an anes- opining he knows drain a is how to thesiologist surgeon ‘as soon or cardiac Mangin It tamponade Dr. does not. is problem Op. apparent.”’ at 708. possible raised as one reason for tam- majority opines, respect The then “With ponade’s being allowed increase over a first proposed of these standards pei'iod of time prolonged point care, report question raised Memon’s stopped he where Wendt’s heart had Mangin knew about how whether long supply oxygen to the brain for a tamponade, actually but he did drain a Mangin before Dr. time called someone Mangin offer un- capable of dealing problems qualified perform a stent insertion.” Id. patient. experiencing Rather, majority construes the 708. suggesting Mangin “Dr. necessary It for the set by choosing perform may have erred delays out the exact reason each of the risky procedure unqualified if he repeatedly says that Dr. fell below Memon respect With perform it.” Id. the sec- both the cardiolo- care, proposed ond these gist in Mangin the room—Dr. —and majority Memon’s ob- summarizes Wojcie- in the room—Dr. of Do- servations about administration proximately together chowski—and that pamine to am and 3:45 Wendt noted caused the lack of the brain that characterization treatment “as ‘a Wendt, healthy an otherwise 57- sign’ that Mr. ‘was dis- ” year-old, organ to suffer failure and death. pressure.’ Id. tress’ and had Tow blood pre- Those issues are to be discovered and states, “Dr. Memon’s at trial. All that is for the required sented promptly if Dr. opined that had adequacy ruptured artery, performed noticed the set pericardiocentesis, qualified expert to out the stan- and maintained blood have procedure erization constituting the facts breach dard subse- causation, injury damage quent complications that occurred. by the breach. Those criteria were report The did not also establish satisfied here. even Mangin’s assert that Dr. alleged pertained to subject breaches a matter however, majority, having ques- The to recog is common equally and knowledge tioned Dr. Memon’s of to how developed nized and in all fields tamponade, drain a next claims that he practice, such that no specific opine on the stan- lacked credentials to cardiological knowledge or experience cardiologist of care for a on an dard called required would be to offer a relevant emergency place basis in the stent Broders, opinion. of a blockage man heart with a the left 153; Keo, 76 732. Whether descending artery. majority anterior The cardiologist is providing who states, “We must determine whether Dr. care to sought should have Memon’s and CV demonstrate help from surgeon necessarily а cardiac qualified specific expert he is to offer opin- depend would on what medical care the considering ions is neither he board cardiologist capable providing. in nor actively practicing certified cardiolo- implicates This cardiologist’s judg Op. gy.” at 708 (citing Tex. Civ. Prac. & ment to his specialty relative and is 74.401(c)). Code Rem. Ann. something common equally and rec reciting credentials, After ognized Memon’s developed all fields opines, it To extent medicine. that Dr. Mem- on in fact possesses knowledge as

Although familiarity he asserts with cardiologist when a should seek assis for “general standards care trau- surgeon, tance from a cardiac the basis surgeons,” matic Dr. Memon does knowledge such was not clearly artic expertise per- make assertions of ulated in his and CV. taining cardiologist’s to a duties when Op. at 709. providing cardiac The report care. also not explain does majority authority whether how The cites no for the knowledge Memon’s about standards level of requires satisfy detail itself “general and traumatic whether Dr. qualified opine Memon is surgeons” applied specific breach- care relevant Mángin. es he to Dr. cardiological majori attributes" and the Moreover, ty opinion disregards Memon’s statement‘that both the abuse complications “familiar” discretion for reviewing an standard ex Palacios, Jelinek, that can arise pert report treatment set out myocardial infarction acute and the and other cases and the set out assessing treatments such Broders for credentials of sum, vague and nonspecific. opining ex- as an in a pert does not demonstrate field outside his specif how own. skill, knowledge, Memon’s experi- ically recognizes that both Dr. Memon’s ence, training, or qualified education him and his show that he is CV “certi particular to render fied the American Heart about Association applica- Support breaches the standard Life Provid Advanced Cardiac er,” to a cardiologist coronary ble when he has been “certified artery perforated during American Heart the cathet- Association as a Health ” AED). 482, (C.P.R. Op. Hillery at See Kyle,

care Provider Dr, 2012, no ignores (Tex.App.-Houston [1st. Dist.] itBut further Memon’s. (concluding qualified pet.) n stateme t: familiarity he stated “with when the stan have sub- am I also familiar condition dards relevant knowledge relation- causal stantial “diagnosed involved this claim” had anesthesiologist’s ship between patients 'and with conditions simi treated surgeon’s failures general traumatic plaintiff); experienced by” lar to those reasonable, prudent, and to meet Danos, Rittger v. S.W.3d of medical accepted standards 2009) (Tex.App.-Houston no care, [1st Dist.] diagnosis, in the supervision (focusing pet.) on condition involved in patients requiring ventila- treatment claim rather than defendant doctor’s area undergoing general anesthe- and/or expertise). surgical procedures for cardiac under sia emergent planned both conditions. anesthe The fact that Dr. Memon is an Thus, agree majority’s I with the. cannot siologist routinely in eardiotho- works conclusion, that, “[a]lthough Dr. Memon settings diagnosis, racic involving “the provided to that he has anesthesia care, stated of patients and treatment requiring procedures, cardiac patients undergoing he general an undergoing ventilation and/or ‘expertise goes his not show did that surgical procedures esthesia give or she is on he to very matter which planned emergent under both condi ” Broders, Op. (quoting opinion.’ at 710 tions,” cardiologist, but is -a does not . 153) 924 S.W.2d at expert him an as to either disqualify as cardiologist cath lab cath anes lab majority’that agree can-I with the Nor thesiologist Rittger, in this 332 “[ujnder -here, case. presented specific- facts 558; Carroll, Hayes v. also S.W.3d see it is deficient because Dr. Memon’s 494, 314 (Tex.App.-Austin S.W.3d link adequately to the education and fails 504-05 2010, pet.) no CV, (holding board certified vas on his experience listed statement surgeon opin cular to qualified was render with that he familiar that ion on applicable emer myocar may arise treatment doctor); Ali, gency room v. Blan S.W.3d infarction, specific opinions and. his dial , (Tex.App.-Houston [14th 746-47 Mangin’s alleged how errors about 741 death,” pet.) (holding that neurolo Dist.] Nor Donald Wendt’s Id. gist qualified expert plaintiffs “logical gaps” majority I find the can though defendant condition —stroke—even filled in inference. Id. claims cannot be emergency were doctor 556). doctors room (citing Scoresby, cardiologist). I court’s ad supreme would heed that, however, determining majority, only in The finds monishment whether expert objective good draw the was “an faith qualified, we. must narrowly.” comply” effort to qualifications “too Lar the standards for an (Tex. 74.351, expert report out in Downing, set son section Dr, 2006). it Memon’s opinions Memon’s and CV dem “summarizes experience he had with the on the onstrated that identi ways here fies he that Dr. type of treatment Wendt inwhich believes received familiar, those:, standards, applica he breached explanation al provides care. This is sufficient to of how these ble standards of - leged qualify opinion him breaches caused to offer this case. Donald patient’s finding while still cause or injury “defieien[t] death” death is not failing just negligent one Memon’s ex act articulate how one but negligent pertise qualified opinion him render an series acts different med- against ¡personnel ical together directly to the claims Man relevant and fore- seeably or injury caused the gin.” Op. at 710. death giving rise the claim. conclude, I unlike Because would does, accurately points itself out majority, that Dr. Memon’s fact, requirement expert- “[t]he serve an satisfy the section requirements 74.351, I report arises at of litigation the outset go looking obvi would not behind opportunity plaintiff ously qualifying before credentials find some significant. engage discovery, “logical gap” including how show he failed Indeed, taking depositions qualified opine oral did. defen- dants,” and, thus, amount Supreme quality “the the Texas Court cautioned . Broders, of evidence available at the exactly time draft- agаinst that See ing reports will be at 151 clear less than (holding absent discretion, that available at trial on the merits or of even supreme abuse court will not the ruling summary-judgment stage.” qualification Op. trial on at 713 disturb court’s witness). (citing Tex. I expert certainly of And would Civ. Prac. Rem. Code Ann. 74.351(a), (s), Wright, 79 expert’s do S.W.3d at not scrutinize an credentials (the report “need all plain- find not marshal the inadequate them basis of a the Palacios, proof’), tiffs description of his that mischaracter- 878). majority’s requirements Yet the actually Thus, for saying. what he was ized expert reports disregard reasons, all these these I 'cannot the criteria join for them, reasoning the majority’s behind with the Dr. Memon’s ex result much, more, that at if not as pert report respect to Dr. least deficient, of expert I demanded the than at and would the the remand summary or trial attempt judgment stage. for case the to cure the Wendts “deficiency” their sole avenue for avoid is a physi case several which -This ing of Dr. Mangin dismissal cardiolo —-the participants in a of cians were chain events gist whose acts Wendt’s immedi initiated began physician’s negli one ate need for of the aeration blood of gence perforation patient’s the ar —the prejudice. brain —with tery by cardiologist inserting the a stent resulting of pooling blood around

Conclusion his heart heart to causing the be unable to majority opinion pres- The in this ease pump patient’s ended with "that —and a very encompassing ents serious of question prolonged death due loss for,-review: brain, only negligent whether the standard re- viewing a trial court’s of the of cardiologist determination at least the but also actions adequacy of expert repqrts negligence of least the anesthesi adequacy ologist of of charge. credentials still All the testifying an abuse of experts negligent or whether clearly discretion standard stated subject this Court is correct to actions both were reports defendants substan a much more exacting de novo tial factors appellate рatient’s in the death. The courts, therefore, And it further critical question review. raises the whether, case, question of ap- what review such to survive the when, plies expert reports proximate requirements informing threshold plain specific conduct defendant MCCLINTOCK, Bradley Ray Appellant question providing a into

tiff has called trial court conclude for the basis merit, must plaintiff claims have Texas, Appellee The STATE did proof to who all of marshal 01-11-00572-CR NO. exactly advance exactly when—in what discovery seeking than discovery—rather Texas, Appeals Court infor who have this from the defendants Dist.). (1st Houston trying the mation then case Opinion November issued courts. re- purpose The Remedies

quirements of Civil Practice and deter and 74.401 is to

Code sections 74.351 suits, not to create unreason-

frivolous very filing

ably high suit. barrier to applied by majority reading

strict lead to expert reports in this case will ap- prejudice suits

dismissal with discovery can be meritorious before

pear test on the merits and can

had To plaintiffs

actual merits claim. mind, sight

my lost statutory adequacy

both the standard ap- expert reports court’s of a trial determina-

pellate review sight itAnd adequacy.

tion as to lost as- for those standards —to reason suits thant

sure that meritorious rather discovery trial. go

frivolous ones

I the order of trial affirm would Mangin’s ‍​‌‌‌‌‌‌​‌‌‌​​​‌‌​​‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌​‌‌​​‌​​‌‌‍and Dr. both denying dismiss,

Wojciechowski’s and I motions against

would remand the case requiring without

both Wendts doctors deficiency” Dr. Memon’s “cure the Mangin. served on Dr.

expert report notes cathet- defendant name. Mem’l Hermann lab erization reference Dr. Smith Ctr., Med. Surgery Ctr. Tex. L.L.P. arrived, attempted, had intubation Smith, 01-12-00393-CV, No. 2012 WL complete Smith was the notes 6645017, (Tex.App.-Houston at *4 [1st on the signature intubation. While 'd). However, stat pet. Dist.] ref anesthesiology report handwritten not specifically require ute defen difficult, if not it does illegible, logical name, dant it be identified the Dr. prepared Smith . see by Mangin the cath lab was called Tex. Prac Code Civ. Rem. 74.351(r)(6), performed in some procedures and who circumstances prior Texas courts held that the mere oper- Donald Wendt’s transfer to have Further, ating room. if an from an omission defendant’s name anesthesiolo- gist present expert report report.” at the time of did not render “no See, Inc., attempt, initial intubation that of e.g., Imaging, itself Gardner v. U.S. (when departure (Tex.2008) could be serious from the 671-72 vicarious, oxygen for that a party’s alleged liability a re receive 100% implicates prior a defen anes- port conduct of several minutes induction

Notes

notes signature While before intubation.,

Case Details

Case Name: Earl Mangin, Jr., M.D. and Zbigniew Wojciechowski, M.D. v. Melissa Wendt, Individually, and as of the Estate of Donald Wendt, and Erin Wendt

Court Name: Court of Appeals of Texas

Date Published: Nov 5, 2015

Citation: 480 S.W.3d 701

Docket Number: 01-14-00852-CV

Court Abbreviation: Tex. App.