*1 STROM, Appellant, Florence M.
MEMORIAL HERMANN HOSPITAL Hospital
SYSTEM Memorial d/b/a Hospital
Southwest and Memorial
System, Henry Blum, and Dr. Individ-
ually Sugar Orthope- Land d/b/a Associates, P.A.,
dic Appellees.
No. 01-01-00756-CV. Texas, Appeals
Court of Dist.). (1st
Houston
May *3 Houston,
John Holloway, H. for Appel- lant. Cruse, Scott, Houston,
Sam A. Allen, Kirkland, & Henderson Solace H. Kurth, Andrews & Hodges, David W. Keeton, L.L.P., Mayor, Day, Caldwell & Houston, for Appellee. TAFT,
Panel consists Justices HANKS,* and MIRABAL.** * ** Mirabal, originally This was panel case submitted to a Margaret The Honorable Garner Taft, Mirabal, consisting Justice, of Justices re- and Appeals, former Court of First District Smith, Upon tired Justice Jackson B. Jr. Jus- Houston, participating by assign- of Texas recusal, Hanks, tice George Smith’s Justice C. ment. Jr., appointed who was to this Court De- participating by assign- cember ment. performed hospital at the October gery
OPINION knee. injury to her left and caused TAFT, TIM Justice. Blum, orthopedic Dr. also sued Strom, filed M. Appellant, Florence left knee who later treated the surgeon against appel- liability health-care replacement, performed a total knee lees, Hospital System Memorial Hermann grossly neg- he сlaiming negligent was Hospital Memorial Southwest d/b/a unneces- ligent because (the System Hospital hospital) Memorial in October hospital sued the sary. Strom Blum, individually and Henry later. year Dr. Blum 1998 and sued *4 Orthopedic Sugar Land Associates d/b/a 2001, 25, hospital moved April On (Dr. Blum). challenge appeals Strom dismiss Strom’s the trial court to either claims, with that dismissed those orders or her to hospital require against case expert grounds on the prejudice, bond, grounds she had on the file cost provided support those reports she 180-day re- 90-day and the missed 13.01(d) of article claims under section 4590i, 13.01 quirements of article section 4590i, Liability and Insurance the Medial reports compliance by filing not expert Act, did not with sec- Improvement with that statute. See 13.01(r)(6) TexRev.Civ. Stat. We ad- of that statute.1 (Ver- (e)(3) 4590i, 13.01(a), (d), § Ann. art. (1) exрert reports dress whether Strom’s to the 180- Supp.2003). respect non With summary a fair of the standard constituted hospital acknowl- day requirement, by Dr. Blum required of care and the expert re- provided had edged Strom (2) Hospital, whether the trial court erred ports attempted compliance with section refusing grant Strom an extension 13.01(d),2 were argued reports but that the (3) expert reports, time to amend as a matter of law” under “insufficient challenge Blum waived his whether Dr. 13.01(r)(6) they because did not section reports by adequacy Strom’s summary” applicable provide a “fair days asserting challenge until 180 breached, care, standard of how was suit, (4) filed the trial after Strom whether alleged relationship the causal between $5,000 in attor- awarding court erred in injuries, (5) required as breach Strom’s ney’s hospital, the constitu- fees to See section. 4590i, 13.01(d), by that tionality of article section TexRev.Civ. Stat. (Vernon (r)(6) 4590i, 13.01(d), (6) § Ann. art. the trial court erred in whether fraud, hospital requested The also dismissing Supp.2003). inten- Strom’s claims of fees, as authorized section attorney’s misrepresentations, tional and fraudulent 13.01(e)(1). surgery” against Dr. “unnecessary Ann. TexRev.Civ. Stat. 13.01(e)(1) (Vernon 4590i, § Supp. Blum. We affirm. art. 2003). May conducting hearing on After Background 2001, 14, the trial court dismissed Strom’s hospital, prejudice, with against hospital claiming Strom sued $5,000 in attor- hospital and awarded the hospital surgical nursing improperly staff ney’s for neck sur- fees and costs. positioned preparation her in 4590i, Civil 11 of the Rules of 1. art. cordance rule See Tex.Rev.Civ. Stat. Ann. 13.01(d), (r)(6) (Vernon Supp.2003). § section Procedure and as authorized 4590i, 13.01(h) See TexRev.Civ. of article provided reports experts’ 2. 4590i, 13.01(h) (Vernon § Stat. Ann. art. hospital April on 1999. It counsel for P. Supp.2003); Tex.R. Civ. 11. undisputed experts' reports were that the signed by agreement in ac- timely of counsel later, days Four May on court, binding reviewing al Blum though filed similar motion to they “helpful” dismiss. are in determining trial court granted this motion and whether the trial court exercised its dis against dismissed Strom’s claims Dr. Blum cretion a reasonable principled Indus., signed an order manner. See IKB August Ltd. v. Pro- (Tex.1997) Corp., Line This order recites that trial 938 S.W.2d court con- sanction); (appeal sidered from dismissal as testimony, Strom’s counsel’s sworn Blackmon, Chrysler Corp. and also reflects the trial findings court’s (mandamus (Tex.1992) review and conclusions granting relief. sanction). dismissal as a Standard Review Prejudice Dismissals with The abuse-of-discretion standard Reports Insufficient
governs
аll article
section
rul
13.01
four points
Strom’s first
of error chal-
ings. American Transitional Care Ctrs.
*5
lenge
against
dismissal of her claims
Palacios,
873,
(Tex.2001);
v.
46
877
S.W.3d
Blum an
points
as
abuse of discretion.
In
Vela,
(Tex.
194,
De Leon v.
70 S.W.3d
197
seven,
through
five
error
Strom chal-
denied).
2001,
App.-San
pet.
Antonio
This
lenges
against
the dismissal
hospital
inquires
standard
trial
whether the
court
grounds.
the same
any
acted
guiding
without reference to
Martinez,
rules or principles. Garcia v.
All
liability
health-care
claims
com-
must
219,
(Tex.1999);
988 S.W.2d
222
13.01(d)
Mueller
ply with section
of article 4590L
Inc.,
(Tex.
Beamalloy,
994 S.W.2d
858
4590i,
art.
Tex.Rev.Civ.
Stat.
Ann.
App.-Houston
[1st
no pet.).
13.01(d) (Vernon
Dist]
§
Supp.2003). Section
mayWe
reverse
deci
discretionary
13.01(d) requires that a plaintiff asserting
sion simply
might
because we
have
must,
a health-care liability claim
not later
Mueller,
reached a different one.
994
(1)
suit,
than
days
180
after filing
either:
S.W.2d at 858.
resolving
When
factual
report,
furnish an expert
with supporting
issues or matters committed to the trial
vitae,
curriculum
to counsel for each de-
discretion,
court’s
we may not substitute
fending physician
provider;
or health-care
our judgment for that of
(2)
the trial court.
voluntarily
or
nonsuit
claim. Tex.
Packer,
Walker v.
827
13.01(d)
S.W.2d
839
4590i, §
Rev.Civ. Stat. Ann. art.
(Tex.1992).
(Vernon Supp.2003). Article 4590i defines
“expert report”
report
as written
that:
prejudice
Dismissals with
for lack
provides
summary
a fair
expert’s
of compliance with section 13.01 of article
opinions as of the date of
report
4590i are
See
sanctions.
Tex.Rev.Civ.
Stat.
regarding
care,
applicable standards of
(Vernon
13.01(e)
4590i, §
Ann. art.
Supp.
the manner in which the care rendered
(“...
2003)
shall,
[T]he court
on the mo
physician
provider
or health care
physician
tion
or health
affected
standards,
failed to
meet
provider,
care
awarding
enter an order
as
relationship
causal
between that failure
sanctions....”);
Palacios, 46
at
S.W.3d
harm,
injury,
damages
and the
In
findings
contrast
entered in
claimed.
support
judgment
aof
after a bench trial
4590i,
Stat.
Ann.
under rule 296 of
Tex.Rev.Civ.
art.
the Rules Civil Proce
(Vernon
13.01(r)(6)
§
Supp.2003).
dure, findings
support
entered
a sane1
cause,
dismissing
acknowledges
as entered here in
Section 13.01
that medi-
granting
motion,
cal-malpractice
the order
Dr. Blum’s
are
require
eases
testi-
therefore, in determin
beyond
report,
cur-
and the statute was enacted to
mony
Id.
with the statute.
Palacios,
ing compliance
tail frivolous lawsuits.
877;
Wright,
Hart v.
16 S.W.3d
S.W.3d
not marshal all
report
The
need
2000, pet.
(Tex.App.-Fort
Worth
require
meet the
proof or
plaintiffs
denied).
plaintiff
If
does
support a
for evidence offered to
ments
13.01(d),
the defendant
with section
Palacios,
or at trial.
summary judgment
pursuant
seeks
sanctions
to section
must,
report
at 878-79.
13.01(e),
grant
must
the trial court
however,
expert’s opinion on
include the
section,
fol-
relief authorized
as
defined
section
of the elements
each
that de-
against
lows: dismiss the claim
13.01(r)(6),
specifically, the standards
prejudice;
costs and
fendant with
award
care,
breached those
how the defendant
defendant; and re-
attorney’s fees to that
standards,
relationship
the causal
be
any
section
quire that
bond filed under
plaintiffs injury.
and the
tween the breach
that award. Tex.
pay
13.01 be forfeited
4590i,
art.
Stat.
Ann.
Tex.Rev.Civ.
4590i,
13.01(r)(6).
art.
§
out these ele
setting
AnN.
Rev.Civ.
Stat.
13.01(e)(l)-(3) (Vernon
(1)
ments,
§
Pa-
Supp.2003);
inform the
must:
lacios,
877;
conduct called
specific
46 S.W.3d at
see also
defendant of the
Tex.Rev.
13.01(£) (Ver-
question by
plaintiffs
§
AnN. art.
into
Civ. Stat.
(2)
(“A
provide a basis from which the trial
Supp.2003)
grant
non
court shall
merit.
may
court
conclude
claims have
challenging
adequacy
motion
of an ex-
*6
Palacios,
(citing
See
I have reviewed the medical records fur-
replacement
knee
a
total
in woman in
in the case Myrna
nished
of
Strom....
lbs,
weighs
her middle 50’s who
February
reportedly
of
she
was seen
who had
a normal knee
Blum,
Henry
prior
Dr.
an orthopedic surgeon,
operative
injury.
to the
room
with her
complaint involving
surgery
chief
The
her
would therefore violate
X-rays
degenerative
left knee.
showed
of
standards
care which would be
expected
changes
joint
with medial
space narrow-
to be exercised
a reason-
notch,
prudent
ing
orthopedic surgeon
and some calcification in the
and
able
impression
and his
torn
of
medial manis-
under
the same
similar
circum-
stances,
Again,
gross negligence
eus
chondromalacia.
he re-
to sub-
patient
ports
prior history
unnecessary
that she had no
of
mit
a
such
surgery.
complaints prior
surgery
knee related
10/4/96,
Berry operated
Flor-
Dr.
Sibley’s Report
On
Dr.
area.
decompressed the C7-T1
ence and
records,
upon
medical
Based
pa-
postoperatively,
He noted that
carpal
surgery of
knee and
[total
8/1/97
her
of
complained
for the first time
tient
not in-
syndrome surgeries] was
tunnel
apparently
left knee.
medically.
dicated
This
unnecessary surgery.
medi-
The
was
11/1/96,
knee
an MRI of the left
On
adequate
cal
records do
contain
posterior horn of
a tear of the
showed
surgery performed
for the
indications
ex-
Dr. Staewen
the medial meniscus.
52-year-
markedly
A
obese
on 8/1/97.
of
diagnosis
and made the
amined her
lady
right leg is not a
old
with a short
patella on the left
the dislocated
expect
one
to have a
candidate
would
liga-
sprain
mild
of the lateral collateral
replace-
good
a
result from total knee
suggest ment. The medical records
carpal
diagnosis
tunnel
ment. The
of
being strapped in the
while
patient,
syndrome
inadequate
to be
seems
prone position
posterior
cervical
justify
surgery
grounds
of
10/4/96,
procedure
operative
surgeries
to the
The
8/1/97.
811/97
untoward
placed
position.
in an
were
knee and
the wrist
unnеces-
left knee....
injury of the
result was
sary.
2/3/97,
Blum com-
Florence saw Dr.
On
(Emphases added
Strom’s brief for
knee....
plaining of
left
reports.)
both
arthroscopic
Dr. Blum did
On 2/12/97
reports
for a
Examining
two
did
partial
the left knee and
ordinarily
showing
prudent
of what an
meniscectomy
chondroplasty
medial
physician
have
under the same
would
done
knee....
of the left
circumstances,
simply
or similar
there
upon
Based
the medi-
CONCLUSION:
statement
the standard of care. See
no
records,
appears
cal
Palacios,
L4-5 medial to prevent facetectomies and forami- movement during surgery. decompression notomies with my It expert opinion, upon based nerve roots and thecal sac. The probability, L4/L5 reasonable medical that the patient continuing prob- of complained injuries knee by patient suffered however, post-operatively; lems in a re- operating were due to the failure of the 8, 1996, port July any dated she denied room personnel ordinary to exercise trouble with in the pain lower extremi- care, negligеnce operating or MRI, upon ties. x- Based evaluation room personnel, placing and maintain- ray, and a myelogram cervical August ing position operating on the room September and Berry Dr. John table. On a follow of her up pain knee suggested a cervical bi- decompression 8, 1997, January ‘ap- it was noted that C7-T1, laterally of possibly and re-ex- parently during surgery, her recent plore bilaterally. C5-6 This surgery taped posi- knees were an untoward 4, 1996, performed on October at tion, resulting problems. in some Diffi- Hospital the Memorial Southwest what, exactly cult to but it know is felt Houston, Texas. This resulted cartilage she has some torn in the patient sustaining in the an acute left knee.’ injury patient’s traumatic in the left (Emphases added brief for Strom’s knee/leg; patient presum- being (cid:127) reports.) both ably sitting position. in a pain swelling suffered immediate Although reports the above men postoperatively, of the knee with diffi- injury tion that Strom’s knee does not culty walking. normally occur when the usual standards 23, 1996, exercised, On October reported care are and even note that the patient complains of knee pain left the left knee properly must have been knee, hobbling on the left which is positioned padded, reports never swollen, range decreased motion applicable theless fail to set out the stan A tenderness. MRI of the left knee Palacios, dard of care. 46 S.W.3d November showed horizon- again, 880. Once that can be most said through posterior tal tear horn reports is that address breach of the meniscus, the medial extending to thе position standard care properly articular inferior surface near the free ing or padding leg and knee. More edge, and a small interior surface tear of over, reports conclusory regarding are the medial at the junction meniscus causation, by failing to out the manner set posterior horn and body segment, in which a pad failure to properly grade and a ligament I medial collateral position the leg and knee resulted in sprain. injury. Strom’s *9 injuries The-knee in the MRI described Accordingly, we overrule Strom’s fifth customary do occur when the not through points seventh of error. in usual of care are standards exercised positioning strapping patient the Failure to Time Grant Additional to However, operative on the table. the Complying Expert Report Filе injuries can when hospital’s occur the ten, In operating personnel points through room to of error eight fail take necessary precautions pad to and avoid Strom contends the trial court abused its the of in placement leg/knee by refusing grant the an ab- discretion her an ad- to position by normal to strapping days the ditional 30 either amend the re-
225 hospital the suggests record that Sibley ing Drs. experts, her ports of receipt. of Rath- Callewart, their permit disputing to file de- was timeliness or Strom that, reports. er, contending to their supplements as record shows positions basis, of article 13.01(g) on timely Strom relies section on a complied had not Strom 4590i, follows: provides as which that position had taken hospital expert provided complying not other of Strоm had
Notwithstanding any provision deadline, section, 180-day if failed which reports this a claimant has to by Moreover, in by later comply with deadline established expired. had therefore (d) court, this section and after Subsection of trial filed with the documents finds the failure hearing the court timely referred to his Strom’s counsel or the claimant’s attor- of the claimant agreed, extended compliance with or result ney was not intentional of Thus, there was “undisputed.” deadline as but the result conscious indifference was to no on which invoke section basis mistake, or the court shall an accident 13.01(h). grant grace days per- to period 80 (g) 13.0 2 Strom also cited section with that mit the claimant to request support 4590i in of her first article A motion a claimant for subsection. (g) time. Section 13.0 2 does for аdditional be relief under this subsection shall con- however, reports. to pertain, expert timely any sidered if it is filed before 4590i, art. Tex.Rev.Civ. Stat. Ann. on a motion a defendant hearing (Vernon Supp.2003). § 13.02(g) Strom (e) of under Subsection this section. mistakenly cited section 13.0 may have 4590i, art. Ann. Tex.Rbv.Civ. Stat. (g), on which (g) of section 13.0 instead (Vernon § Supp.2003). 13.01(g) But in her brief to this Court. she relies requests The record contains two or “accident mistake” documented The Strom for additional time. first first Strom’s re- supporting affidavit request concluding para appears having erro- quest only to Strom’s refers graphs response the hospi Strom’s to just we have ad- neously presumed, as to request tal’s motion dismiss. This re dressed, not receive hospital that the did possible post-office fers or to secretarial agreed, extendеd reports by the Strom’s appears presume error and to request The does refer deadline. first hospital Strom not fur contending did on which to “accident or mistake” basis, timely nish as reports well she later relied and which relies Strom as to section moving pursuant dismiss appeal. in this 13.01(e)(3) reports because the were insuf additional request second for Strom’s 13.01(h) Citing section of article ficient. 2001 motion time her June appears 4590i,3 agreements which authorizes May trial rehearing court’s to extend the deadlines of sections counsel dismissing against order case 13.01(a) (d), provided or counsel Strom’s addition to hospital, prejudice. documenting his the hospi an affidavit complied expert claiming reports rule 11 February agreement tal’s of article with section 13.01 extend deadline аlternatively that the trial court requested day, April an additional file furnish an “extend the time Strom’s affidavit also documented *10 of Dr. depositions report or support to his staff amended counsel’s instructions as amendment Dr. Callewart an agreement. Sibley that accordance with Noth- (Vernon 4590i, 13.01(h) Supp.2003) § art. 3. Tex.Rev.Civ Stat. Ann.
226 prior reports.” Strom again cited support complied Strom’s claims with sec- 13.01(h) 4590i, 13.01(d) (r)(6) section governing article 4590i, tions of article agreements of counsel to extend prelimi- constituted “accident or mistake” that war- nary filing deadlines for expert reports. ranted granting additional to comply. time 13.01(h) Section apply does not to relief points We eight overrule of error requested of a court. through ten. again Strom cited “accident or mistake” request, her second but rea- asserted Challenge Expert Reports Deadline to sons that request. differed from her first 11, In point of error Strom con Here, clearly Strom invoked provisions tends Blum waived his to chal right 13.01(g) section of article 4590i as- lenge expert Strom’s reports waiting serting that her comply failure to with days until 180 after filed Strom suit. 13.01(d) section was neither intentional nor Strom maintains Dr. Blum had the indifference, the result of conscious but the reports contents, aware was of their
result of accident or mistake. Tex. but “sat on his hands” and waited until 4590i, § 13.01(g). art. Rev.Civ. Stat. AnN. possible after last date for Strom to claim Strom’s of “accident or mistake” is provide a complying expert Arti report. premised on attorney’s sworn affidavit imposes 4590i cle no deadline challeng for attesting his “reasonable belief’ that the ing expert under section expert reports provided complied he 13.01(d). See v. Paso Hosp. Gonzalez El article 4590L Strom reasserts that conten- Dist, 712, (Tex.App.-El 68 717 S.W.3d appeal. tion on 2001, Marón, v. pet.); Paso no Chisholm comply 13.01(g), To with section howev- 903, 63 S.W.3d 908 (Tex.App.-Amarillo er, had request Strom to file her for addi- 2001, Denno, pet.); Hargrove no tional time before any hearing on a defen- (Tex.App.-San S.W.3d Antonio dant’s motion to dismiss section under 2001, no pet.). 13.01(e). See Tex.Rev.Civ. Stat. Ann. art. Accordingly, we overrule point error 4590i, § 13.01(g); see also Jackson v. Reardon, (TexApp.- [1st Houston no pet.) (holding Dist.] Attorney’s Hospital Award of Fees to
that trial court did abuse not its discretion point of error Strom con motion, denying sought which addition- tends that the trial court its 13.01(d) abused discre al to file section re- time $5,000 awarding Hospital for port, hearing but was filed after on section attorney’s 13.01(e) dismiss). support fees without evidence Here, motion to Strom the claim. also argues that she was request comply did not additional time to trial jury entitled to a on the issue of 13.01(d) with section on the grounds she attorney’s fees. reasonable appeal raises in this until hearing after the hospital’s on the motion to Ac- dismiss. 13.01(e)(1) Article provides section was cordingly, request not timely. the trial shall court award reasonable request Because Strom’s attorney’s plain- additional fees a sanction for a as timely, time the trial require- court did tiffs failure to with 13.01(d). by refusing grant abuse its discretion ments section Tex.Rev.Civ. (Vernon 13.01(e)(1) address, therefore, 4590i, § relief. need not We art. Ann. Stat. whether Strom’s be- Supp.2003). By providing counsel’s “reasonаble trial lief,” reports sanction, that the expert provided plain assess lan- court *11 727, (Tex.App.-San Antonio 737-38 contemplate the statute not S.W.3d guage of does 1999, Cullington, v. no pet.); is McGlothlin jury that determine what reasonable a 449, (Tex.App.-Austin 452-53 attorney’s fees. Strom does S.W.2d as denied). jury any authority permit would pet. that to this issue. determine that her for contention Strom’s As contending In that no evidence 4590i, scope of article claims exceeded of attor supported the trial court’s award compels that all claims for settled law fees, ignores testimo ney’s Strom affidavit brought under arti be negligence medical $7,500 ny represented a that reasonable her attempt to recast cle 4590L Strom’s This attorney’s of fees this case. award advising negligence claims $2,500 suggested fеe was more than and inten necessity as fraud actually trial court awarded. amount the misrepresentations fraudulent tional and support for evidentiary In disputing not re unnecessary surgery do regarding fees, ap attorney’s Strom award article 4590i. See move those claims from something than pears argue to more (Tex. Matey, Gomez no required, again is but offers affidavit (holding no App.-Corpus pet.) Christi authority support contention. misrepresentation and re claims of fraud trial did not err
We hold that the court surgery fell within garding unnecessary awarding attorney’s without con fees 4590i). of article scope vening jury requiring testimony a be both we overrule of Strom’s Accordingly, we yond proof Accordingly, affidavit. thirteen. points error point overrule of error 12. Conclusion Challenges
Constitutionаl to Section 13.01 of the trial judgment affirm We all deny pending motions. court. We In con- points two of error Strom (1) the dismissal of her suit with tends GARNER Justice MARGARET and federal
prejudice violates
state
MIRABAL, dissenting.
process of
guarantees
constitutional
of due
law,
law,
right
equal protection
MIRABAL,
GARNER
MARGARET
(2)
trial;
jury
the trial court
Justice, dissenting.
in dismissing
its
abused
discretion
Strom’s
timely-filed
fraud,
my opinion,
for
intentional and fraudulent
claims
Callewart, M.D.,
A.
sur-
of Dr. Robert
misrepresentations,
“unnecessary
comply
effort to
good
are
faith
gery”
represents
because these causes of action
expert report
to a “medical standard”
of an
relating
not issues
with the definition
(r)(6)
Liability
under article 4590i.
of the Medical
Subsection
Act,1 and
Improvement
and Insurance
correctly
arti
asserts that
its discre-
the trial court abused
thereforе
heavy
on medical
places
cle
burden
4590i
plaintiffs
when it dismissed
very
with
malpractice plaintiffs
comply
respectfully
Accordingly, I
prejudice.
specific requirements and that
sanction
dissent.
severe,
but neither
failing
involving
this
case
I note that
guarantees.
violates constitutional
expert report,
file an
5 the
Baptist
Sys.,
Health
Schorp v.
Mem’l
failure
13.01(r)(6) (Vernon Supp.2003).
§
Art.
Stat.
1. Tex.Rev.Civ.
Ann.
*12
involving
1996,
is not a
filing
this
case
the
of a
the
Hospital
at Memorial
South-
Rather,
late expert report.
in-
Houston,
this case
west in
Texas. This
timely-filed
volves a
expert report. The
patient sustaining
the
an
resulted
challenges
issue is
the
whether
defendants’
injury
acute
patient’s
traumatic
the
the adequacy
report
to
of the
left
probably
knee
associated with im-
granted,
should have
resulting
been
the
рroper
of
positioning
padding of the
plaintiffs
dismissal of
prejudice.
case with
the
knee/leg,
patient being presum-
ably in sitting position.
patient
a
a plaintiff timely
If
an expert report
files
pain
suffered immediate
and swelling
and the defendant
to
moves
be-
dismiss
of the knee postoperatively, with diffi-
cause of
report’s
the
inadequacy, the trial
culty walking.
grant
court must
the motion “only
it
if
court,
appears to the trial
hearing,
after
reported
On October
it is
that the report
represent
good
does not
complains
the patient
of left knee
to
with the definition of
pain
knee,
hobbling
and
faith effort
left
(r)(6)
expert report
an
in Subsection
of this
swollen,
which
range
with decreased
section.”
Stat. ANN. Art.
of motion and
A MRI of
tenderness.
Tex.Rev.Civ.
13.01(Z) (Vernon
(em-
§
Supp.2003)
1996,
the left knee on November
added);
phasis
Hosp.
Borne Memorial
through
showed a horizontal tear
(Tex.2002).
Wright,
79 S.W.3d
51-52
posterior
meniscus,
horn of the medial
“good-faith effort,”
To constitute a
re-
to the inferior articular sur-
extending
port
must
enough information to
edge,
face near the
a small
free
and
(1)
fulfill
purposes:
two
must
inform the
inferior
surface tear
the medial
defendant of the specific conduct the plain-
junction
poste-
meniscus
of the
(2)
tiff
question,
has called into
and
it must
rior
and body segment,
horn
and a
provide a
for the
basis
trial court to con-
grade
ligament
I medial collateral
Bowie,
clude that
have merit.
sprain.
jury. Id. hospital’s operating room person- necessary nel fail take precautions against Hospital
Claims
pad
placement
and avoid
reads,
Dr. Callewart’s
in relevant
leg/knee
position by
abnormal
part:
strapping
prevent
A.Injury
during surgery.
movement
MRI,
upon
x-ray,
Based
evaluation
C. Breach
and a
myelogram August
cervical
September
It
Berry
my expert opinion,
upon
John
based
suggested
decompression
probability,
a cerviсal
reasonable medical
C7-T1,
injuries
bilaterally
possibly
pa-
re-
suffered
explore
bilaterally.
sur-
C5-6
This
tient were due to the failure
gery
performed
operating
personnel
room
October
exercise
*13
by strapping
care,
position
in an
or
of the
knee
abnormal
ordinary
negligence
(standard
care);
indi-
personnel,
placing
report
in
a medical
operating room
maintaining
position
taped
on the
in
plaintiffs
and
her
knees were
cated that
operating room
operating
table.
the
ta-
position
an
untoward
ble,
on a reasonable medical
and based
D. Causal Connection
expert
probability, it was Dr. Callewart’s
in
injuries
the
The knee
described
injuries
knee
opinion
plaintiffs
that
the
customary
do
occur
the
MRI
when
hospital
of the
due to the failure
were
of care are exer-
and usual standards
and maintain
properly place
to
personnel
in
positioning
strapping
the
and
cised
position
operating
the
table
plaintiffs
patient
operative
a
on the
table.
(breach
connection).
and causal
However,
injuries
the
can occur when
hospital’s operating
person-
the
room
case
unlike the Palacios case.
This
necessary precautions
fail to take
nel
Care Centers
American Transitional
pad
placement
to
and avoid the
the
(Tex.2001).
Palacios,
Claims Dr. Blum knee; however, this not consis- *14 tent with what was in reported the reads, Dr. Callewart’s in report relevant knee at the time of prior surgery the part: or other evaluations of knee. If Injury A. she degenerative joint had severe dis- “I have reviewed the medical records ease, this could have occurred in a furnished Myrna the case of several months time frame from ” when Strom.... she had surgery of the neck or February she by was seen February 12, 1997, from the time of Blum, Henry Dr. an orthopedic sur- surgery. geon, with her complaint chief involv- Based upon reasonable ing X-rays her left medical knee. de- showed probability, generative indicate changes joint records no medial space medical narrowing and some calcifica- basis reason the total notch, tion in the replacemеnt knee impression his woman lbs, torn medial meniscus and chondro- middle who weighs 50’s who malacia. Again, reports he that she had reportedly a prior normal knee prior had no history of knee related operative room injury. The sur- complaints prior surgery ques- gery would therefore violate the stan- Dr. tion. Blum performed the meni- dards of which expected care would be sectomy on February 1997. On to be exercised a reasonable and 3,1997, reported March it is that she prudent orthopedic surgeon under the doing surgery. is fantastic after circumstances, same or similar However, on April Blum Dr. gross negligence to submit such a pa- indicates the needs a total tient unnecessary surgery. replacement, July 28, knee and on D.Causal Connection 1997, reports that she is scheduled for total knee replacement August upon records, Based it my ex- pert opinion that the total knee and added). (Emphasis carpal Blum performed Dr. tunnel releases were not medi- replacement total knee surgery cally justifica- indicated. There is no plaintiff. tion or very clear indication chart for surgery.... Based upon
B. Standard of Care a reasonable medical probability, the The would ... violate the records indicate no medical basis of standards of care which would ex- be reason replace- for the total knee pected to be exercised reasonable ment. ... and prudent orthopedic surgeon under same similar circumstances. provide report Does Callewart’s C. Breach enough information inform de- records, upon spеcific my
Based fendant Doctor of the ex- conduct plaintiff pert opinion question, that the total and the has called knee into carpal tunnel releases were not medi- and to a basis for the trial court cally justifica- indicated. There is no conclude that claims have merit? defendant, against plaintiffs It is from Dr. Callewart’s clear question into is the Dr. Blum. that the conduct called replacement of a total
performance surgery was unnec- when such operation, CONCLUSION a fair sum- essary. report provides Strom’s appellant We sustain should mary opinions about the Dr. Callewart’s seven, through reverse one points of error (that care be standard of which would case to the and remand the judgment, expected to be exercised a reasonable trial court. orthopedic surgeon under the prudent circumstances), breach same or similar *15 “unnecessary” replace- knee
(performing medically which is “not indi- surgery,
ment
cated”, justification which there is “no for chart”),
... and causal connection
(the the applicable breach of standard of unnecessary injury
care caused the replacement surgery). the Interest of In W.E.C. care, regard to standard of With No. 2-02-085-CV. Supreme Texas Court stated Palacios: hospital The standard of care for a Texas, Appeals Court ordinarily prudent hospital what an Fort Worth.
would under same or cir- do similar June 2003. cumstances.Identifying the stan- dard of care is critical: a de- Whether duty
fendant breached his or her
patient cannot be determined absent
specific information about what de- differently.
fendant should have done case, present
Id. ex-
pert’s report identified the standard of orthopedic surgeon, specif-
care
ically was expected, stated what care but Le., given, diagnosis action based indicated, medically not the
on what unnecessary major sur-
performance
gery. again, guiding principles
Once under the Palacios, Dr.
set out in Bowie and Calle- report good-faith constitutes ef-
wart’s opin- summary a fair of his
fort care, breach,
ions the standard of about Accordingly, connection. causal
trial court abused its discretion when it
granted the defendant doctor’s motion adequacy re-
challenging dismissal,
sulting prejudice, in a