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Date: 04-06-2012

Case Style: Erwin Lo, M.D. v. Wyoming Newman

Case Number: 09-11-00697-CV

Judge: Hollis Horton

Court: Texas Court of Appeals, Ninth District on appeal from the 172nd District Court, Jefferson County

Plaintiff's Attorney: Mike Jacobellis and Clay Dugas for Wyoming Newman, et al.

Defendant's Attorney: James R. Boston Jr. and Gary Sommer for Erwin Lo, M.D., et al.

Description: This interlocutory appeal concerns the adequacy of an expert report under standards that apply to health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). The appellees, Wyoming Newman and Michael Newman, filed a health care liability claim against Erwin Lo, M.D., P.A., Erwin Lo, M.D., Golden Triangle Neurocare, L.L.P., and Baptist Hospitals of Southeast Texas.1 On appeal, Erwin Lo, M.D., P.A., Erwin Lo, M.D., and Golden Triangle Neurocare, L.L.P. (collectively referred to as the health care providers) contend that the trial court erred when it found the report the Newmans filed in support of their suit sufficient, which allowed the suit to proceed. Because we conclude the trial court did not abuse its discretion in denying the health care providers‟ motion to dismiss, we affirm the trial court‟s order. See id. § 74.351(l).


Wyoming Newman suffered quadriplegia following an operation performed by Dr. Lo to Newman‟s neck in 2009. Newman‟s history reflects that she suffered a neck injury in 2007 from an automobile accident. After that accident, another neurosurgeon, Dr. Chavis, diagnosed Newman as having a cervical myelopathy secondary to severe cervical stenosis from levels C4-C7 of her cervical spine; Dr. Chavis recommended that Newman have an anterior2 cervical discectomy and fusion. Newman decided to have another physician, Dr. Lo, perform her surgery. Subsequently, in 2009, Dr. Lo operated on Newman‟s cervical spine at the levels Dr. Chavis had identified as stenotic; in addition to the discectomies and the fusion recommended by Dr. Chavis, Dr. Lo performed a corpectomy3 at C5-6. During surgery, Triangle Neurocare, L.L.P., a partnership owned by Dr. Lo and his professional association.

Newman suffered dural tears.4 A CT scan taken the day after Newman had surgery was interpreted as showing that Newman had a compromise of the spinal cord at the end plates of C5-C7. Because Newman‟s neurological status worsened after her first surgery, Dr. Lo operated a second time in an attempt to decompress Newman‟s spinal cord, this time using a posterior approach. When Newman‟s condition did not improve following her second neck surgery, she had another procedure that allowed her spinal fluid to drain. The Original Petition attributes Newman‟s quadriplegia to her neck surgeries.

After Newman and her husband filed suit, the health care providers filed a joint motion to dismiss, asserting that a report authored by Dr. Joel M. Singer failed to comply with the requirements of Chapter 74 of the Texas Civil Practice and Remedies Code. See id. Following a hearing, the trial court denied the health care providers‟ motion to dismiss. See id. § 74.351(a). On appeal, the health care providers contend that Dr. Singer‟s report is deficient because it fails to adequately describe how Dr. Lo‟s negligence caused Newman‟s quadriplegia. The health care providers also assert that Dr. Singer‟s report is conclusory, speculative, and lacks any factual basis. Based on the deficiencies that Dr. Singer‟s report is alleged to contain, the health care providers conclude that Dr. Singer‟s report fails to qualify as an expert report under the provision of Chapter 74. See id. § 74.351(r)(6).

Applicable Law and Analysis

We review a trial court‟s ruling on a motion to dismiss a health care liability claim for abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

In cases involving health care liability claims, the claimant must file an expert report that provides a “fair summary” of the expert‟s opinion as of the date of the report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). To constitute a good-faith effort, a report “must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875. A report that merely states the expert‟s conclusions on the applicable standard of care, breach, and causation “does not fulfill these two purposes.” Id. at 879. “„[R]ather, the 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 reviewing court cannot fill gaps in a report by drawing inferences. Collini v. Pustejovsky, 280 S.W.3d 456, 462 (Tex. App.—Fort Worth 2009, no pet.).

To determine whether Dr. Singer‟s report represents a good-faith effort to explain how the alleged negligence of Dr. Lo caused Newman‟s quadriplegia, we look to the four corners of the report. See Palacios, 46 S.W.3d at 878. With respect to causation, we evaluate whether Dr. Singer‟s report demonstrates causation beyond mere conjecture. See Wright, 79 S.W.3d at 53. Dr. Singer‟s report consists of a five page, single spaced, letter. In the report, Dr. Singer identifies three standards of care applicable to Dr. Lo. The report also reflects Dr. Singer‟s opinion that the continued compression of Newman‟s spinal cord resulted from Dr. Lo‟s breach of those standards, causing Newman‟s quadriplegia.

In issue one, the health care providers argue that Dr. Singer‟s report fails to sufficiently explain how Dr. Lo caused Newman to suffer quadriplegia. To constitute a sufficient expert report in a health care liability case, the report must explain how the alleged malpractice caused the injury. See Wright, 79 S.W.3d at 53. Nonetheless, the Newmans are not required to marshal all of their proof in the expert report or to present evidence in the report as if actually litigating the merits. See Palacios, 46 S.W.3d at 878-79. Additionally, Dr. Singer‟s report need not meet the same requirements as evidence offered in a summary-judgment proceeding or at trial. See id. at 879.

According to Dr. Singer, Dr. Lo performed the wrong surgery because Dr. Lo misinterpreted Newman‟s imaging tests. In addition to criticizing Dr. Lo for performing a corpectomy, Dr. Singer‟s report also criticizes Dr. Lo for failing to “immediately obtain a CT after [t]he first surgery when the patient awoke with no movement of her legs,” which resulted in a delay in Newman having her second surgery, whose object was also to decompress Newman‟s spinal cord. In addition to attributing the delay in Newman undergoing a second surgery to Dr. Lo, Dr. Singer is also critical of Dr. Lo‟s use of a posterior approach in Dr. Lo‟s second operation. According to Dr. Singer, Dr. Lo should have performed the second surgery from the front. After the surgeries, according to Dr. Singer, Newman “continued to have compression on her spinal cord, which more likely than not, caused her quadriplegia.”

Dr. Singer‟s report sufficiently explains Dr. Singer‟s opinion that Dr. Lo twice performed unsuccessful surgery, that those surgical decisions constituted breaches in the standards of care, and that the continued pressure on Newman‟s spinal cord, resulting from her unsuccessful surgeries, failed to relieve the pressure on Newman‟s spinal cord and caused her to suffer quadriplegia. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Wright, 79 S.W.3d at 53. We hold the trial court did not abuse its discretion in denying the health care providers‟ motion to dismiss. We overrule issue one.

In issue two, the health care providers complain that Dr. Singer‟s opinions are conclusory, speculative, and not linked to the facts in the report. Based on Dr. Singer‟s report, and the arguments advanced in the health care providers‟ motion to dismiss, it is clear that the parties differ in their respective interpretations of Newman‟s 2007 magnetic resonance imaging study. However, based on Dr. Singer‟s interpretation of that study, Dr. Singer believes that “the discectomies and fusion as offered by Dr. Chavis was the proper procedure in this case.”

Although the parties have a dispute regarding the proper interpretation of Newman‟s test results, there has been no challenge advanced by the health care providers regarding Dr. Singer‟s qualifications to interpret Newman‟s magnetic resonance imaging test. Dr. Singer‟s opinions were based on his interpretation of the film of Newman‟s imaging test, another physician‟s report, and the imaging studies done following Newman‟s first surgery. Because Dr. Singer‟s opinions are grounded on his interpretation of medical tests, and because his expertise to interpret Newman‟s test results was not challenged in the trial court, we conclude that Dr. Singer‟s conclusions cannot be characterized as wholly conclusory, speculative, or without any factual basis.

We hold that Dr. Singer‟s report gave the trial court a sufficient basis to reasonably conclude that the Newmans‟ claims have merit.5 See Palacios, 46 S.W.3d at 875. We overrule issue two.

* * *

See: http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=12317

Outcome: Having overruled the health care providers‟ issues on appeal, we affirm the trial court‟s judgment. AFFIRMED.

Plaintiff's Experts: Dr. Joel M. Singer

Defendant's Experts:


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