RAMARAO DENDULURI, M.D. AND HOUSTON UROLOGY PARTNERS v. MARIA NANCY BRAVO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOSE ANTONIO QUINTERO A/K/A HECTOR RODRIGUEZ
NO. 01-22-00230-CV
First District of Texas
June 15, 2023
On Aрpeal from the 151st District Court, Harris County, Texas, Trial Court Case No. 2021-36624
Opinion issued June 15, 2023
MEMORANDUM OPINION
Appellee Maria Nancy Bravo, individually and as representative of the estate of Jose Antonio Quintero, her deceased husband, asserts health care liability claims against appellants Ramarao Denduluri, M.D. and Houston Urology Partners under
Background
In May 2019, Quintero went to West Calcasieu Hospital in Louisiana for scrotal pain. Tests showed a right hydrocele (swelling of the testicle due to fluid accumulation) and abnormalities of the right testicle and right spermatic cord of uncertain cause. Scans also showed that both of Quintero‘s lungs had pulmonary nodules of unknown origin.
A month later, Quintero saw urologist Ramarao Denduluri. Dr. Denduluri‘s records note the history of the ultrasound and CT sсans and the finding of a right hydrocele. On June 19, Dr. Denduluri operated to remove the hydrocele. On June 24, Quintero developed a hematoma that Dr. Denduluri managed with antibiotics and pain medications. Dr. Dendurluri continued to provide wound care in June, July, and August 2019.
Dr. Denduluri obtained a scrotal ultrasound on September 3, 2019. The ultrasound report described abnormal masses in both of Quintero‘s testicles. On
By mid-November 2019, Quintero had already had three rounds of chemotherapy. In late November, he had surgery tо remove his right spermatic cord and a mass on his pubic bone. Dr. Denduluri noted that a recent CT scan after the chemotherapy treatments had shown reduction in the size of the pulmonary and retroperitoneal lymph nodes. Quintero died in August 2020, allegedly from metastatic testicular cancer.
Appellee sued Dr. Denduluri and his practice, Houston Urology Partners, alleging professional negligence in failing to properly treat, test, and diagnose Quintero, ultimately leading to his death. Because the allegations against appellants are health care liability claims, appellee had to provide a proper expert report.
Appellants objected to the sufficiency of Dr. Dow‘s report, arguing that: (1) his causation opinions were conclusory, based on speculation and assumptions without a factual basis, (2) nothing in his report or curriculum vitae showed his qualification to opine on whether an earlier diagnosis of Quintero‘s cancer would have probably changed the treatment or outcome of the cancer; and (3) the report provided no basis for the trial court to find appellee‘s claims meritorious. See id.
The trial court granted appellee a 30-day extension under
After appellee filed Dr. Dow‘s supplemental report, appellants filed a second motion to dismiss. They argued that the report was still insufficient because Dr. Dow had not provided any factual basis or explanation for his causation opinions, which, in appellants’ view, assumed that the testicular cancer that had metastasized to Quintero‘s lungs in May 2019 was at a lower stage and more easily treatablе in June than in October. Appellants also objected to the lack of any information in the supplemental report showing that Dr. Dow was qualified to determine the stage of the cancer in June 2019, or whether a diagnosis then would have resulted in different and more successful treatment. The trial court denied the motion to dismiss.
Standard of Review
We review a trial court‘s denial of a
Applicable Law
A trial court must grant a defendant‘s motion to dismiss a health care liability suit with prejudice unless the plaintiff serves a timely expert report within 120 days of filing the original petition. See
An expert report is defined as a written report by an expert that provides a fair summary of the expert‘s opinions about (1) the applicable standard оf care; (2) the way the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id.
Expert Report
Appellants contend the denial of their motion to dismiss was an abuse of discretion because the trial court misapplied the facts in the expert reports and incorrectly found that Dr. Dow was qualified to be an expert and that the reports were sufficient.
A. Causation and Sufficiency
Appellants argue that Dr. Dow‘s reports do not satisfy
Causation requires that the expert report explain how and why the alleged breach caused the plaintiff‘s injury. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An expert report is sufficient if it “provides a fair summary of the expert‘s opinions... regarding applicable standards of сare, the manner in which the care rendered... failed to meet the standards, and the causal relationship between that failure and the injury.”
In articulating the standard of care and breach, “an expert report must set forth specific information about what the defendant should have done differently“; that is, “what care was expected, but not givеn.” Abshire, 563 S.W.3d at 226 (internal quotations omitted). Dr. Dow‘s reports address the standard of care by remarking that Dr. Denduluri made no notes of Quintero‘s scrotal ultrasound or CT scan reports and stating that the failure to assess the abnormal findings from these diagnostics breached the standard of care. Dr. Dow highlights that Dr. Denduluri‘s notes lacked orders, comments, or review of Quintero‘s continued complaints involving his testicle and the testicular mass. Dr. Dow explains that this delay to properly review and consider the diagnostic testing, combined with the failure to order additional testing, delayed Quintero‘s cancer diagnosis and treatment.
According to the reports, the standard of care required review of the diagnostic testing, which revealed an abnormally appearing testicle and spermatic chord, and further investigation, including a scrotal physical exam and additional imaging of the scrotal area. See Abshire, 563 S.W.3d at 224 (the court‘s role at this stage is not to determine the report‘s credibility); see also Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 515 (Tex. 2017) (per curiam) (at “this preliminary stage, whether those standards appear reasonable is not relevant to the analysis of
The reports also discuss how the testing done in May 2019 did not note a change in Quintero‘s retroperitoneal lymph nodes, which are commonly affected by testicular cancer. In September 2019, Quintero underwent surgery to remove his right testicle. Testing revealed that there was lymphovascular invasion—a sign of a more aggressive cancer. In November 2019, Dr. Denduluri noted that the retroperitoneal lymph nodes had changed in size, reflecting a change in the stage of Quintero‘s cancer. The reports then cоnnect how early diagnosis of testicular cancer can result in a better chance of survival, and that once the cancer expands over the local lymph nodes, a patient‘s survival rate decreases significantly.
Considering these aspects of the Dr. Dow‘s reports, we conclude the reports inform appellants of the specific conduct that appellee has called into question, the standards of care that should have been followed, and what appellants should have done. See Abshire, 563 S.W.3d at 225–26 (report adequately links conclusion with underlying facts by asserting that failing to properly assess medical history and physical conditions led to a delay in diagnosis, proper treatment, and to the alleged injury); Harris Cnty. Hosp. Dist. v. Garrett, 232 S.W.3d 170, 179 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Although the reports do not identify specific testing that should have been done or notes that should have been made, such detail “is simply not required at this stage of the proceedings.” Baty, 543 S.W.3d at 697.
For health care liability claims based on the progression of undiagnosed and untreated cancer, an expert report must contain information about (1) the effect of cancеr development over time on the patient‘s prognosis and (2) the potential effectiveness of treatments for the patient‘s type of cancer. Kapoor v. Estate of Klovenski, No. 14-11-00118-CV, 2012 WL 8017139, at *7 (Tex. App.—Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.) (Kapoor II); see also Garrett, 232 S.W.3d at 179–81. The report must explain how and why the physician‘s breach of the standard of care proximately caused the plaintiff‘s injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).
Causation consists of two components: (1) cause-in-fact and (2) foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). A physician‘s breach was a cause-in-fact of the рlaintiff‘s injury if the breach was a substantial factor in bringing about the harm, and without the breach the harm would not have occurred. Id. Even if the harm would not have occurred without the physician‘s breach, “the connection between the defendant and the plaintiff‘s injuries simply may be too attenuated” for the breach to qualify as a substantial factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (internal quotations omitted). A breach is not a substantial factor if it “does no more than furnish the condition that makes the plaintiff‘s injury possible.” Id. A physician‘s breach is a foreseeable cause of the plaintiff‘s injury if a physician of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. Puppala v. Perry, 564 S.W.3d 190, 197 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Dr. Dow opines in his reports that Dr. Denduluri‘s breach of the standard of care allowed Quintero‘s cancer to advance. See Abshire, 563 S.W.3d at 224–25 (expert report showed causal link between failure to properly assess medical history and physical conditions, delay in diagnosis and proper treatment, and alleged injury); see also Garrett, 232 S.W.3d at 181. Dr. Dow notes that Quintero continued to complain to Dr. Denduluri, but Dr. Denduluri did not order further testing or properly investigate the complaints as required by the standard of care. Dr. Dow
Dr. Dow‘s reports are like the expert report in Abshire, 563 S.W.3d at 221. There, the patient complained of back and chest pain that ultimately resulted in the patient becoming paraplegic. Id. at 221–22. The medical staff failed to (1) note that the patient suffered from brittle bone disease, which was relevant medical
Miller is also analogous. 536 S.W.3d at 515. In that case, the patient swallowed her dental bridge and died shortly after it was removed. Id. at 512. Although x-rays showed the bridge‘s presence in the patient‘s trachea when she began showing signs of chest congestion, the reviewing physician failed to notice or identify the рroblem. Id. The expert reports concluded that the physician breached the standard of care by failing to detect the dental bridge in the x-rays and that the delay in removing the bridge caused a series of pulmonary issues resulting in the patient‘s death. Id. at 514. Both Abshire and Miller held that their respective reports sufficiently addressed how the breach of the standard of care resulted in an injury to the patient. Abshire, 563 S.W.3d at 227; Miller, 536 S.W.3d at 515.
We must remain mindful that expert-report challenges are made at an early, pre-discovery stage in the litigation, not when the merits of the health care liability claim are being presentеd to the fact finder to determine liability. Puppala, 564 S.W.3d at 198. To provide more than a conclusory statement on causation, an expert
Because the reports sufficiently identify the applicable standard of care and link Dr. Denduluri‘s alleged breaches with Quintero‘s injury, we overrule appellants’ claims that the expert reports were conclusory and insufficient.
B. Dr. Dow‘s Qualifications
Appellants argue that Dr. Dow is not qualified because his reports do not show any experience or training in treating testicular cancer, determining the stages of testicular cancer, or determining whether an earlier diagnosis would have probably changed the patient‘s treatment and outcome. Appellee responds that while Dr. Dow is not an oncologist, his experience as a urologist, like Dr. Denduluri, makes him qualified here.
An expert must establish that she is qualified to provide a report addressing accepted standards of care, causation, or both. See
To qualify as an expert who can provide opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability case, the expert must be (1) a physician and (2) “otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.” See
When a physician‘s failure to diagnose is alleged to have harmed a patient, an expert testifying on causation must be qualified to opine on the effect of a timely diagnosis and treatment on the outcome. See Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996) (emergency physician was qualified to testify at trial that the standard of care required diagnosis of head injury and referral of patient for neurological treatment, but not as to potential effectiveness of proposed treаtments for the undiagnosed neurological condition); Thomas, 230 S.W.3d at 859–60 (radiologist was not qualified to offer expert opinion addressing whether delayed cancer diagnosis affected patient‘s prognosis); cf. Mosely v. Mundine, 249 S.W.3d 775, 779–80 (Tex. App.—Dallas 2008, no pet.) (emergency room physician was qualified to opine because proffered expert opinion “related to the ability of an emergency room physician to interpret a routine chest x-ray... not the diagnosis and treatment for cancer“). Under the
Not every physician is qualified to testify on every medical question. See Broders, 924 S.W.2d at 152–53. But a physician need not practice in the particular medical field about whiсh they are testifying if they can show that they have knowledge, skill, experience, training, or education about the specific issue before the court that would qualify them to give an opinion on that subject. Cornejo v. Hilgers, 446 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
Appellants argue that because this case involves the field of oncology, and nothing in Dr. Dow‘s reports indicate that he is board certified in oncology or has knowledge or experience in determining the stages of testicular cancer, treating testicular cancer, or determining whether an earlier diagnosis wоuld have changed a patient‘s treatment and prognosis, he is not qualified to submit an expert report.
Appellants note that while Dr. Dow mentions in his supplemental report that during his residency in the 1990s he spent one year treating patients with urologic cancers and has treated 20 patients with testicular cancer, this does not indicate that he has treated patients for cancer.
Appellants compare this case to Kapoor v. Estate of Klovenski, where the appellate court found that the expert, a physician specializing in family and emergency medicine, had identified no experience or credentials to qualify her to testify on treatments that would have been available if the patient‘s cancer was diagnosed earlier; and, whether earlier treatment would have resulted in a more favorable prognosis. No. 14-09-00963-CV, 2010 WL 3721866, at *2–3 (Tex. App.—Houston [14th Dist.] Sep. 23, 2010, no pet.) (mem. op.) (Kapoor I).
Appellee argues that Gunderson v. Wade is more instructive. See No. 14-20-00795-CV, 2022 WL 456720 (Tex. App.—Houston [14th Dist.] Feb. 15, 2022, no pet.) (mem. op.). In Gunderson, the plaintiff‘s expert was an ophthalmologist who opined on the causal link between an alleged failure to perform certain eye examinations and the delayed discovery of the patient‘s cancer diagnosis of ganglioglioma. Id. at *3. The Gunderson court held that based on the expert‘s “education and experience in the field of ophthalmology, the trial court reasonably could have determined that he was qualified to opine on the specific issue before the court. Id. at *6.
There is not a precise formula for qualifying a doctor as a medical expert, so we begin with a review of Dr. Dow‘s curriculum vitae. See, e.g., Benge v. Williams, 548 S.W.3d 466, 471 (Tex. 2018). Dr. Dow is a urologic surgeon who graduated from the University of Texas Medical Branch and completed his residency at the University of South Florida Moffitt Cancer Center. He is a Diplomate of the American Board of Urology and a Fellow of the American College of Surgery who has been practicing for over 20 years. He is currently a urologist with the Memorial Hermann Medical Group Urology Associates.
Further describing his qualifications in his supplemental expert report, Dr. Dow states:
Included in my residency was spending one year at The H. Lee Moffitt Cancer Center in Tampa, Florida, the only National Cancer Institute-designated Comprehensive Cancer Center in Florida[.] During my time at Moffitt, I spent the great majority of my time evaluating and treating (both surgically and medically) exclusively urolоgic oncology patients. I was involved in the care of hundreds of urologic oncology patients while at Moffitt many of whom had testicular cancer. Additionally, I have treated more than 20 patients with testicular cancer in my practice and have performed over 2000 surgeries of the scrotum and its contents. . . .
The standard of care for a Urologist requires that the physician gather an appropriate history, perform a thorough of examination of the patient‘s genitalia, review the diagnostic studies; the images, reports and the laboratory studies and order further testing as deemed appropriate. . . .
The standard of care for a urologist requires that the physician investigate and diagnose the condition of a patient‘s genitals. This
includes a scrotal physical exam and ordering and reviewing the appropriate diagnostic tests as needed. . . . As a Urologist [who] completed a six[-]year residency, four of which were Urology specific, and . . . as a Urologist in surgical practice since July 2000, the evaluation of the scrotal mass is extremely common place, almost daily. A scrotal exam and approрriate interpretation of studies related to scrotal complaints is of paramount importance to a practicing urologist.
This supplemental report is more like Kapoor II than Kapoor I. In Kapoor I, the doctor did not identify any experience or credential to show that she was qualified to testify about what treatments would have been available for an earlier cancer diagnosis and whether earlier treatments would have improved the patient‘s prognosis. 2010 WL 3721866, at *3. The amended report in Kapoor II stated that the doctor had cared for and supervised over 500 patients diagnosed with and treated for cancer, diagnosed cancer, and reviewed records kept on the diagnosis and treatment of patients with cancer. 2012 WL 8017139, at *7.
In addition, as in Gunderson, where an ophthalmologist submitted an expert report on the care and treatment of a patient by another ophthalmologist, Dr. Dow, a urologist, has submitted expert reports on the care and treatment of a patient by another urologist. While the expert in Gunderson did not have experience treating the illness the patient suffered from, he did have experience with the standards of care applicable to the examinations done by an ophthalmologist and had significant exрerience and education in the field. 2022 WL 456720, at *3. Similarly, Dr. Dow
Based on Dr. Dow‘s education and experience in the field of urology, the trial court reasonably could have determined that he was qualified to opine on the specific issue before the court—the causal link between appellants’ alleged failurе to perform certain scrotal examinations and the delayed discovery of Quintero‘s cancer. The central allegations underlying appellee‘s suit relate to whether a urologist departed from the standards of care applicable to scrotal examinations and a subsequent scrotal surgery; the record shows that Dr. Dow has significant education and experience in both areas.
Appellants challenge Dr. Dow‘s lack of training, education, or experience in determining the stages of testicular cancer, treating testicular cancer, or determining whether an earlier diagnosis would have changed a patient‘s treatment and prognosis. But similar arguments challenging an expert‘s qualifications related to the specific condition stemming from the alleged negligence have been rejected. See, e.g., Whitmire v. Feathers, No. 01-19-00094-CV, 2020 WL 4983321, at *10–12 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); Mosely, 249 S.W.3d at 779–80.
Therefore, the trial court did not abuse its discretion in concluding that Dr. Dow is qualified to opine on the causal relationship between the alleged negligence and Quintero‘s subsequent injuries and harm. See
Conclusion
We affirm the trial court‘s order.
Sarah Beth Landau
Justice
Panel consists of Justices Landau, Countiss, and Guerra.