                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-350-CV


BURT EUGENE HYDE, M.D.                                                 APPELLANT

                                            V.

DOROTHY MENEFEE, INDIVIDUALLY                                          APPELLEES
AND AS NEXT FRIEND OF EVOLLA TUTT,
AND EVOLLA TUTT

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            FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. Introduction

      In a single issue, Appellant Burt Eugene Hyde, M.D. brings this interlocutory

appeal from the denial of his motion to dismiss the health care liability claim filed

against him by Appellees Dorothy Menefee, individually and as next friend of Evolla

Tutt and Evolla Tutt . See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon

2008). W e affirm.



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           See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      On    February    25,   2007,    Appellee    Dorothy    Menefee     brought    her

sixteen-year-old daughter, Evolla Tutt, to Millwood Hospital, a psychiatric facility, for

treatment of a major depressive disorder with psychosis. Tutt had previously been

diagnosed with Schizoaffective Disorder, and she had been suffering from increased

depression and anxiety, including auditory hallucinations, for two weeks.

      Dr. Hyde, a general practitioner, was the first physician to examine Tutt at

Millwood Hospital; he noted an admission diagnosis of major depressive disorder

with psychosis. At the time, Tutt was taking a combination of medications, including

Seroquel (an antipsychotic), Concerta (an amphetamine used for treatment of

attention-deficit disorder), and Zoloft (an antidepressant). Dr. Hyde ordered the

continuation of Tutt’s current medications and the administration of a combination

of medication, including Haldol (an antipsychotic), Ativan (an anticonvulsant), and

Benadryl, 2 as needed if Tutt became “agitated or very upset.” Dr. Hyde did not see

Tutt again or have any further involvement in her care.

      After being admitted to Millwood, Tutt became the patient of Dr. Tarakumar

Reddy, M.D. Dr. Reddy entered new orders discontinuing the Concerta, increasing

the Zoloft and Seroquel dosages, and leaving in place Dr. Hyde’s order for the

Haldol cocktail. Tutt was not given the Haldol cocktail prior to the entry of Dr.



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        W e will refer to the combination of Haldol, Ativan and Benadryl as the the
“Haldol cocktail.”

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Reddy’s February 25 orders, but she did receive three doses of the Haldol cocktail

on February 26.

      On February 28, Tutt was transferred from Millwood to the emergency room

at Arlington Memorial Hospital. At the time of admission, Tutt was described as

drooling, non-verbal, and trembling. Several hours later, Menefee took Tutt by

private car to North Hills Hospital where Tutt remained a patient until March 12.

During that time, one of the North Hills doctors noted a possible diagnosis of

Neuroleptic Malignant Syndrome (“NMS”). Menefee alleges that Tutt’s NMS caused

seizures between March 4 and March 11 that resulted in “substantial brain damage

and permanent, debilitating physical and mental impairment.” Tutt was transferred

to Children’s Medical Center in Dallas on March 12 and was discharged from there

in June.

      Menefee and Tutt sued thirty defendants, including Dr. Hyde, for negligence

and served Dr. J. Boswell Tabler’s expert report with their original petition. Dr. Hyde

objected to the expert report’s sufficiency and moved to dismiss Menefee and Tutt’s

claim under civil practice and remedies code section 74.351. After a hearing, the

trial court denied Dr. Hyde’s motion to dismiss, and this interlocutory appeal

followed.

                                 III. Expert Report

      In his sole issue, Dr. Hyde argues that the trial court erred by denying his

motion to dismiss. Specifically, Dr. Hyde argues that Dr. Tabler’s expert report does


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not satisfy the requirements of civil practice and remedies code section 74.351

because it fails to establish a discernible standard of care applicable to Dr. Hyde,

fails to set forth a breach of that standard “in anything but a conclusory manner,” and

fails to establish a causal link between Dr. Hyde’s alleged misconduct and the harm

Tutt allegedly suffered.

A. Standard of Review

      A trial court’s ruling concerning an expert report under section 74.351

(formerly article 4590i, section 13.01) of the Medical Liability and Insurance Act is

reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351 (Vernon Supp. 2009); Bowie Mem’l Hosp. v. Wright, 79 S.W .3d

48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d

873, 875 (Tex. 2001). To determine whether a trial court abused its discretion, we

must decide whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable.    Cire v. Cummings, 134 S.W .3d 835, 838–39 (Tex. 2004).             An

appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same circumstances.

Bowie Mem’l Hosp., 79 S.W .3d at 52; E.I. du Pont de Nemours & Co. v. Robinson,

923 S.W .2d 549, 558 (Tex. 1995).

B. Applicable Law




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      A health care liability claimant must serve an expert report on each defendant

no later than the 120th day after the claim is filed. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(a). A defendant may challenge the adequacy of a report by filing a

motion to dismiss, and the trial court must grant the motion to dismiss if it finds, after

a hearing, that “the report does not represent an objective good faith effort to comply

with the definition of an expert report” in the statute. Id. § 74.351(l). W hile the

expert report “need not marshal all of the plaintiff’s proof,” it must provide a fair

summary of the expert’s opinions as to the “applicable standard[ ] 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.”         Id. § 74.351(r)(6); Palacios, 46 S.W .3d at 878

(construing former article 4590i, § 13.01).

      To constitute a good faith effort, the report must discuss the standard of care,

breach, and causation with sufficient specificity (1) to inform the defendant of the

conduct the plaintiff has called into question and (2) to provide the trial court with a

basis to conclude that the claims have merit. See Bowie Mem’l Hosp., 79 S.W .3d

at 52; Palacios, 46 S.W .3d at 879. A report does not fulfill this requirement if it

merely states the expert’s conclusions or if it omits any of the statutory requirements.

Bowie Mem’l Hosp., 79 S.W .3d at 52; Palacios, 46 S.W .3d at 879.                But 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


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S.W .3d at 879. W hen reviewing the adequacy of a report, the only information

relevant to the inquiry is the information contained within the four corners of the

document. Bowie Mem’l Hosp., 79 S.W .3d at 52; Palacios, 46 S.W .3d at 878.

C. Analysis

      Dr. Hyde argues that Dr. Tabler’s expert report is conclusory and does not

sufficiently detail the standard of care, breach of the standard of care, or causation

as to Dr. Hyde.



      1. Standard of Care and Breach

      Although he acknowledges that the expert report identifies three specific

duties he owed to Tutt, Dr. Hyde argues that these duties are stated only as “broad

generalities” and that the report does not set forth a “specific standard of care.” Dr.

Hyde also contends that Dr. Tabler’s report does not explain why or how Dr. Hyde

breached these standards of care.

      The relevant portions of Dr. Tabler’s expert report state:

      Dr. Hyde initially evaluated the patient upon her admission to Millwood
      Hospital on February 25–26, 2007. At this time, Dr. Hyde owed a duty
      to the patient to make appropriate decisions concerning her course of
      psychiatric medication treatment. Dr. Hyde improperly continued the
      drug Concerta for the patient, a stimulant medication used to treat
      Attention Deficit Disorder, in spite of this drug’s contraindication per its
      label for individuals experiencing agitation and/or psychosis. . . .

      Dr. Hyde also owed a duty to the patient to prescribe a course of
      psychiatric treatment that would not endanger her safety while treating
      her underlying psychiatric condition. Dr. Hyde failed the patient by


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      beginning her initial “cocktail” utilizing dosages and combinations that
      failed to treat the patient’s condition without inducing a life-threatening
      neurological condition. . . .

      Dr. Hyde had a further duty to closely monitor the patient’s condition for
      any signs or symptoms of adverse reaction to the psychiatric drug
      “cocktail” administered to her as treatment of her mental state. Dr.
      Hyde’s failure to initiate a course of psychiatric medications that would
      consider the presentation of the patient from February 27 to February
      29, 2007 [sic] as a potential life-threatening condition resulted in the
      continued administration of the “cocktail,” contributing to the patient’s
      eventual seizures that resulted in her injuries.

      Dr. Tabler’s report adequately describes Dr. Hyde’s duties and alleged

breaches of duty.    The report states that Dr. Hyde:       (1) had a duty to make

appropriate decisions concerning Tutt’s medication treatment and allegedly

breached this duty by improperly continuing Concerta, a contraindicated stimulant;

(2) had a duty to treat Tutt’s underlying psychiatric condition while not endangering

her safety and allegedly breached this duty by not treating Tutt’s condition and

improperly using medication dosages and combinations that induced a life-

threatening neurological condition; and (3) had a duty to closely monitor Tutt for

signs of an adverse reaction to the medication and allegedly breached this duty by

not recognizing Tutt was in a potentially life-threatening condition and by continuing

the same medications she had been taking. Other sections of Dr. Tabler’s report

provide that NMS “is a potentially-fatal brain and bodily disorder,” that the risk of

developing NMS increases with, among other things, the use of “high potency

agents” such as Haldol, that Dr. Hyde prescribed the Haldol cocktail for Tutt, and



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that Tutt received at least three doses of the Haldol cocktail. These statements, all

contained within the four corners of Dr. Tabler’s report, are sufficient to inform Dr.

Hyde of the specific conduct Menefee and Tutt have called into question and provide

a basis for the trial court to conclude that the claim has merit. Bowie Mem’l Hosp.,

79 S.W .3d at 52; Palacios, 46 S.W .3d at 879; see also Baylor Coll. of Med. v.

Pokluda, 283 S.W .3d 110, 121–22 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(holding expert report sufficiently set forth standard of care and breach of standard

of care).

      Dr. Hyde asserts two other arguments concerning the standard of care and

breach. He first argues that Dr. Tabler’s report takes issue with Dr. Reddy’s, not Dr.

Hyde’s, decision to continue the Haldol cocktail. But this argument is unavailing

because Dr. Tabler’s report specifically states that Tutt received three doses of the

Haldol cocktail and that it was a breach of the standard of care for Dr. Hyde to

prescribe the Haldol cocktail without regard to Dr. Reddy’s alleged negligence.

Second, Dr. Hyde contends that Dr. Tabler’s report attempts to establish “a global

and generic ‘Standard of Care at Millwood’” but that this standard of care does not

apply to him. W e need not address this argument, however, because Dr. Tabler’s

report, independent of this alleged “global and generic standard of care,” sufficiently

describes specific duties Dr. Hyde owed to Tutt and his alleged breaches of those

duties. See Tex. R. App. P. 47.1.




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      The trial court did not abuse its discretion by finding that Dr. Tabler’s report

sufficiently addressed the elements of duty and breach of duty.

      2. Causation

      Dr. Hyde also argues that Dr. Tabler’s report fails to “connect the dots and

specifically explain how [Dr. Hyde’s] conduct resulted in Ms. Tutt receiving this toxic

combination of medication and how the medication brought about the damages

alleged.” W e disagree.

      Read as a whole, Dr. Tabler’s report sufficiently links his causation opinions

to the facts. Among other things, the report states: (1) Hyde admitted Tutt to

Millwood on February 25, 2007, for treatment of a major depressive disorder with

psychosis; (2) Hyde continued Tutt’s medication combination, which included

Seroquel and Concerta; (3) the continued administration of Concerta “more likely

than not contributed to the hospital’s difficulties in abating [Tutt]’s admission

psychosis and encouraged the use of Haldol”; (4) Dr. Reddy discontinued Dr. Hyde’s

Concerta order on February 25; 3 (5) Dr. Hyde prescribed the Haldol cocktail for Tutt

as needed; (6) Tutt received at least three doses of the Haldol cocktail; (7) the



      3
         Dr. Hyde argues the discontinuation of the Concerta means that his
“Concerta order could not have contributed to any harm suffered by Ms. Tutt.” But
Dr. Hyde prefaces his argument on there being “no evidence Ms. Tutt ever received
Concerta at Millwood.” Not only does this argument reach beyond the four corners
of Dr. Tabler’s report, but it improperly seeks to require a level of detail required in
a summary judgment proceeding or at a trial. See Palacios, 46 S.W .3d at 879. The
argument also ignores Dr. Hyde’s order for the Haldol cocktail that Tutt received on
at least three occasions.

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Haldol cocktail was an “excessively-risky treatment regimen [that] resulted in the

patient’s initial neurological crisis”; (8) the risk of developing NMS increases with,

among other things, patient agitation, the “use of high potency agents” such as

Haldol, and the “concomitant use of predisposing drugs (Haldol + Seroquel)”; (9)

NMS “is a potentially-fatal brain and bodily disorder with sequelae requiring active

medication treatment if suspected to prevent complications”; (10) the continued

administration of the Haldol cocktail “contribut[ed] to the patient’s eventual seizures

that resulted in her injuries”; and (11) “the tragedy that occurred was a direct result

of a combination of the above medication. The patient was overly sedated and any

potential over sedation requires special medical care.”        These statements, all

contained within the four corners of Dr. Tabler’s report, sufficiently link Dr. Tabler’s

causation opinions to the facts. See Patel v. Williams, 237 S.W .3d 901, 905–06

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently set

forth causation when it presented a chain of events beginning with a contraindicated

prescription and ending with the patient’s death). The trial court acted within its

discretion in finding that Dr. Tabler’s report sufficiently addressed the element of

causation.

      W e hold that the trial court was justified in finding that Dr. Tabler’s report

discusses the standard of care, breach, and causation with sufficient specificity to

fulfill the statutory requirements. W e therefore overrule Dr. Hyde’s sole issue.

                                   IV. Conclusion


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     Having overruled Dr. Hyde’s sole issue, we affirm the trial court’s order.




                                            BOB MCCOY
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: April 29, 2010




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