Date: 10-20-2011

Case Style: John S. Vardiman v. Robin Ogden

Case Number: 09-11-00397-CV

Judge: Steve McKeithen

Court: Texas Court of Appeals, Ninth District on appeal from the 58th District Court of Jefferson County

Plaintiff's Attorney: Craig Lewis

Defendant's Attorney: T. Marc Calvert for John S. Vardiman, James L. Holly and Southeast Texas Medical Associates, L.L.P.

Description: Robin Ogden and Iris Roubique, individually and as personal representatives of the Estate of Georgie Marie Ogden, sued John S. Vardiman, M.D., James L. Holly, M.D., and Southeast Texas Medical Associates, L.L.P. for alleged medical malpractice.1 Appellants objected to appellees‘ expert report and moved to dismiss the lawsuit pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). The trial court overruled appellants‘ objections and denied their motion to dismiss. In this interlocutory appeal, appellants challenge the trial court‘s denial of their motion to dismiss. See id. § 51.014(a)(9) (West 2008). We affirm the trial court‘s order.

Standard of Review and Applicable Law

Section 74.351 requires a health care liability claimant to timely file sufficient expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). When considering a motion to dismiss for failure to comply with section 74.351, the trial court must determine ―whether ‗the report‘ represents a good-faith effort to comply with the statutory definition of an expert report.‖ Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l). Section 74.351 defines an ―expert report‖ as follows:

a written report by an expert that provides a fair summary of the expert‘s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). ―Because the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document.‖ Palacios, 46 S.W.3d at 878; see also Wright, 79 S.W.3d at 52.

―A report need not marshal all the plaintiff‘s proof, but it must include the expert‘s opinion on each of the elements identified in the statute.‖ Palacios, 46 S.W.3d at 878; see also Wright, 79 S.W.3d at 52. An expert report constitutes a ―good-faith effort‖ when the expert sets out his opinions on the standard of care, breach, and causation with enough specificity to: (1) ―inform the defendant of the specific conduct the plaintiff has called into question,‖ and (2) ―provide a basis for the trial court to conclude that the claims have merit.‖ Palacios, 46 S.W.3d at 879; see also Wright, 79 S.W.3d at 52. ―‗[T]he expert must explain the basis of his statements to link his conclusions to the facts.‘‖ Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). ―A report that merely states the expert‘s conclusions about the standard of care, breach, and causation does not fulfill these two purposes.‖ Palacios, 46 S.W.3d at 879. ―Nor can a report meet these purposes and thus constitute a good-faith effort if it omits any of the statutory requirements.‖ Id. Regarding claims of vicarious liability, an expert report is sufficient when it ―adequately implicates the actions of that party‘s agents or employees[.]‖ Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). ―The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.‖ Palacios, 46 S.W.3d at 879. We review a trial court‘s ruling on a motion to dismiss pursuant to section 74.351 under an abuse-of-discretion standard. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. ―A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.‖ Wright, 79 S.W.3d at 52. We may not substitute our own judgment for the trial court‘s judgment. Id.

The Expert Report of Dr. Robert Mendelsohn

According to Dr. Mendelsohn‘s expert report, Georgie Marie Ogden suffered from a large gallstone and symptoms of biliary obstruction. On April 15, 2009, Ogden was admitted to the hospital for an ERCP2 evaluation. Ogden subsequently developed nausea, vomiting, and abdominal pain, all consistent with post-ERCP pancreatitis. Dr. Holland, Ogden‘s gastroenterologist, began treating this condition. Dr. Vardiman was Ogden‘s primary care physician, and Dr. Holly was Ogden‘s attending physician. On April 16, Ogden continued to have symptoms, and she was still being monitored. On April 17, Holly and Vardiman intended to discharge Ogden despite her continued symptoms and despite Holland‘s instructions that (1) Ogden should be closely monitored; (2) a CT scan should possibly be obtained to ―further elucidate the etiology of her symptoms‖; and (3) Ogden should not be discharged. Holly‘s discharge summary stated that Ogden ―[d]enies Nausea, Vomiting, Constipation, Diarrhea, Abdominal Pain, Dysphagia, Distention, Weight Loss, [and] Weight Gain[,]‖ and also stated that Ogden had gradually improved. Mendelsohn, however, noted that Ogden‘s medical chart indicated that she had grown worse and was not improving. Additionally, Ogden‘s WBC had increased from 5.4 to 11.9. Mendelsohn stated that Ogden‘s condition had declined such that Holland expected Ogden to remain in the hospital and expected Vardiman and Holly to conduct radiological studies to determine the cause of Ogden‘s continued abdominal pain and post-ERCP complications. On April 18, Ogden‘s hemoglobin was low at 9.8. On April 19, Ogden was having pain, was not tolerating food, and was nauseated, but Vardiman and Holly discharged Ogden. Mendelsohn stated that it is not unusual for a patient to regress or flare-up when food is introduced into the patient‘s system, and that Holly and Vardiman knew Ogden lived alone.

On April 20, Ogden returned to the emergency room and was admitted to the hospital. Neither Vardiman nor Holly ordered radiological studies. On April 22, Holland ordered a CT scan of Ogden‘s abdomen and pelvis, which revealed a large abscess along Ogden‘s right lateral flank from her gallbladder fossa to her pelvis. Ogden underwent emergency surgery to drain the intra-abdominal abscess and repair the duodenal perforation. Mendelsohn stated that the CT scan and subsequent surgery explained Ogden‘s complications and symptoms. Subsequently, Ogden suffered septic shock from the abdominal abscess, and her overall medical condition deteriorated. Medical personnel were reluctant to perform additional surgeries to address Ogden‘s internal bleeding and other complications stemming from the massive infection.

A progress note, dated April 30, states: ―Hypotension – secondary to hypovolemia from bleeding; severe GI bleeding; hypovolemic shock, disseminated intravascular coagulation disease.‖ Ogden died on May 12.

In his report, Mendelsohn identified the standard of care:

In a patient in this age group, with the serious complications and conditions being exhibited by Mrs. Ogden, the standard of care requires that caution and conservatism is called for, and it was a deviation from standard medical practice to discharge Mrs. Ogden on April 19, at a time when she could not maintain adequate nutrition or hydration, without another CT scan to confirm that the pancreatitis was resolving and that there were no other complications occurring.

Mendelsohn explained that ―[g]reat care and caution must be taken in these patients, especially in this age group as they may not manifest classic symptoms.‖ Mendelsohn opined that discharging Ogden and allowing several days to pass before Ogden received further medical care deviated from medical standards and jeopardized Ogden‘s chances of recovery, which ultimately led to her death.

Mendelsohn explained that Holly and Vardiman breached the standard of care by failing to obtain an earlier CT scan of Ogden‘s abdomen and pelvis and by discharging Ogden when she was still symptomatic with post-ERCP medical complications. He opined that, in reasonable medical probability, Ogden‘s condition was caused by Vardiman‘s and Holly‘s delay in obtaining the CT scan, which allowed Ogden‘s infection to significantly spread and ultimately caused formation of the abscess and septic shock. He explained that the massive infection affected the tissues in Ogden‘s abdomen and pelvis and ultimately caused Ogden to suffer from GI bleeds. Mendelsohn opined that, had Holly and Vardiman performed the necessary CT scan, they would have discovered Ogden‘s perforation and continued pancreatitis. According to Mendelsohn, in reasonable medical probability, an earlier CT scan would have indicated the need for immediate surgical intervention to address Ogden‘s perforated duodenum and for appropriate antibiotic therapy to prevent septic shock. Mendelsohn concluded:

Vardiman and Holly deviated from medical standards by discharging Mrs. Ogden, despite the recommendation of their gastroenterology consultant, and not obtaining further studies – all of which led to a delay in her medical treatment, the spreading of the infection throughout her abdomen and pelvis, the development of septic shock, and the further medical complications . . . all of which, in reasonable medical probability, led to her death.

The Standard of Care, Breach, and Causation

In issue one, appellants contend that Mendelsohn‘s report fails to adequately state the standard of care. Appellants complain that the report (1) fails to affirmatively state the correct course of conduct, i.e., what care was expected, and is therefore unclear as to what the standard should be; and (2) uses ―broad generalizations‖ instead of identifying the standard applicable to each appellant or explaining why the standard of care applies to Vardiman and Holly as a group. In issue two, appellants argue that Mendelsohn‘s report is insufficient as to breach and causation. Appellants complain that the report (1) fails to state any actions that breached the standard of care and proximately caused Ogden‘s death or appellees‘ damages; (2) fails to link appellants‘ actions to the alleged harm; (3) is conclusory and based on assumptions, specifically regarding how the delay in treatment caused harm and how an alternative treatment would have prevented harm; and (4) fails to exclude other causes of Ogden‘s death.

Appellees were not required to marshal all their proof or present evidence in the report as if actually litigating the merits. Palacios, 46 S.W.3d at 878-79. The report need not meet the same requirements as evidence offered in a summary-judgment proceeding or at trial. Id. at 879. The report need only (1) inform appellants of the specific conduct appellees have called into question, and (2) provide a basis for the trial court to conclude that appellees‘ claims have merit. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

Mendelsohn explained that the standard of care required Vardiman and Holly to exercise ―caution and conservatism‖ when treating patients in Ogden‘s age group and condition, because these patients may not ―manifest classic symptoms.‖ To meet this standard, Vardiman and Holly had a duty to (1) obtain radiological studies, such as a CT scan, to determine whether Ogden‘s pancreatitis was resolving and whether any other complications were occurring, and (2) avoid discharging Ogden when she was still symptomatic and could not maintain adequate hydration or nutrition. Mendelsohn explained that Holly and Vardiman breached the standard of care by failing to obtain an earlier CT scan and by prematurely discharging Ogden. Mendelsohn explained that the delay in obtaining a CT scan and the premature discharge delayed a diagnosis and Ogden‘s treatment, which allowed the infection to spread and caused the abdominal abscess. According to Mendelsohn, had Vardiman and Holly timely performed a CT scan, they would have discovered that Ogden needed immediate surgery and antibiotics to treat the perforated duodenum and prevent septic shock. Nevertheless, as a result of Vardiman‘s and Holly‘s failure to timely obtain a CT scan and their decision to prematurely discharge Ogden, Ogden‘s treatment was delayed, causing the abscess to develop, the infection to spread, and the septic shock to develop, thereby causing her death.

Based on the facts presented, Mendelsohn‘s report explains, to a reasonable degree, how and why the alleged breach of the standard of care caused Ogden‘s injury. See Jelinek v. Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). The report implicates the actions of Holly and Vardiman, the alleged ―employees, agents, and/or vice-principals‖ of Southeast Texas Medical Associates, L.L.P. See Gardner, 274 S.W.3d at 671-72; see also Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.). That Mendelsohn identifies and discusses a single standard of care applicable to both physicians does not render his report deficient. See Sanjar v. Turner, 252 S.W.3d 460, 466 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also Livingston v. Montgomery, 279 S.W.3d 868, 873 (Tex. App.—Dallas 2009, no pet.). Mendelsohn‘s report indicates that Vardiman and Holly both participated in Ogden‘s care and both owed a duty to Ogden to timely obtain a CT scan and to avoid prematurely discharging Ogden. See Sanjar, 252 S.W.3d at 466; see also Bismar v. Morehead, No. 2-07-360-CV, 2009 Tex. App. LEXIS 9799, at **8-16 (Tex. App.—Fort Worth Dec. 10, 2009, no pet.)

(mem. op.); Livingston, 279 S.W.3d at 873. The report need not ―rule out every possible cause of the injury, harm, or damages claimed‖ and is not insufficient simply because there may be many links in the chain of events leading to Ogden‘s death. Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.); see also VHS San Antonio Partners LLC v. Garcia, No. 04-09-00297-CV, 2009 Tex. App. LEXIS 7790, at *15 (Tex. App.—San Antonio Oct. 7, 2009, pet. denied) (mem. op.); Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Patel v. Williams, 237 S.W.3d 901, 906 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The correctness of Mendelsohn‘s conclusions is an issue for trial or summary judgment. See Shepherd-Sherman, 296 S.W.3d at 199 n.2; Wissa v. Voosen, 243 S.W.3d 165, 169-70 (Tex. App.—San Antonio 2007, pet. denied).

We, therefore, conclude that the trial court was justified in finding that Mendelsohn‘s report discusses the standard of care, breach, and causation with sufficient specificity to inform appellants of the specific conduct called into question, i.e., what should have been done differently and what care was expected, but not received. See Palacios, 46 S.W.3d at 879-80. The reports provide a basis for the trial court to conclude that appellees‘ claims have merit. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. Because appellees‘ expert report represents a good-faith effort to comply with the statutory definition of an ―expert report,‖ we overrule issues one and two.

Expert Qualifications

In issue three, appellants argue that Mendelsohn is not qualified as an expert under section 74.402 of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402 (West 2011). Appellants complain that the report does not show Mendelsohn is speaking within his experience because the report (1) is unclear as to which appellant the standard of care and alleged breaches refer; (2) is unclear as to whether Mendelsohn sees patients in the same settings as Vardiman and Holly; and (3) is unclear as to whether Mendelsohn is familiar with the responsibilities of Vardiman and Holly.

A person may qualify as an expert on whether a health care provider departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b). Under the literal language of section 74.402(b)(1), an expert is only required to practice health care in a field of practice involving the same type of care or treatment, and need not be practicing health care in the same field as the defendant health care provider. Group v. Vicento, 164 S.W.3d 724, 731 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Whether a witness is qualified on the basis of training or experience depends on whether, at the time the claim arose or at the time testimony is given, the witness:

(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(c). The expert must have ―‗knowledge, skill, experience, training, or education‘ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.‖ Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). An expert‘s qualifications must be evident from the four corners of his report and curriculum vitae. Christus Health Se. Tex. v. Broussard, 267 S.W.3d 531, 536 (Tex. App.—Beaumont 2008, no pet.).

Mendelsohn‘s report and curriculum vitae indicate that he satisfies the statutory requirements. Mendelsohn is a licensed, practicing, board-certified gastroenterologist in New York City, has been certified by the American Board of Internal Medicine, and is an attending physician. He has performed over 2000 ERCPs and has treated many patients suffering from pancreatitis. He is familiar with the standard of care for indications, contraindications, and complications associated with the ERCP procedure and the post- ERCP complications experienced by patients like Ogden. Accordingly, Mendelsohn practices in a field that involves the same type of care or treatment as that delivered by Vardiman and Holly to Ogden and has knowledge of the applicable standard of care regarding the diagnosis, care, or treatment of the types of ERCP complications suffered by Ogden. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1)-(2); see also Group, 164 S.W.3d at 731. By virtue of Mendelsohn‘s credentials, experience, training, and practice in the relevant area of health care, which involves the care and treatment of patients like Ogden, the trial court could reasonably conclude that Mendelsohn has the requisite training or experience to offer an expert opinion on the subject before the trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(3), (c); see also Broders, 924 S.W.2d at 153. We overrule issue three.

In summary, we conclude that the trial court did not abuse its discretion by denying appellants‘ motion to dismiss. We affirm the trial court‘s order.

* * *

See: http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=11941

Outcome: AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: