                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00091-CV


CONSULTANTS IN RADIOLOGY,                                        APPELLANTS
P.A., JASON W. SKILES, D.O.,
DAVID W. SIMONAK, D.O., AND
FOSSIL CREEK FAMILY MEDICAL
CENTER, P.A.

                                      V.

S.K. AND C.K., INDIVIDUALLY,                                      APPELLEES
AND ON BEHALF OF J.K., A.K.,
AND R.K., MINOR CHILDREN


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         FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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     This is a health care liability case. Appellees S.K. and C.K., individually

and on behalf of J.K., A.K., and R.K., minor children, sued Appellants


     1
      See Tex. R. App. P. 47.4.
Consultants in Radiology, P.A. (Radiology), Jason W. Skiles, D.O., David W.

Simonak, D.O., and Fossil Creek Family Medical Center, P.A. (Fossil Creek) for

negligence related to medical services provided by Appellants to S.K. In January

2013, S.K. was diagnosed with Stage IIIC breast cancer, and Appellees alleged

that Appellants could have and should have diagnosed the cancer at an earlier

stage. In one issue, Appellants ask whether the trial court abused its discretion

by concluding that Appellees’ expert reports were sufficient under civil practice

and remedies code section 74.351 2 when the expert reports “fail[ed] to explain

why or how the cancer worsened during the delay allegedly caused by

Appellants.” Because we hold that the expert reports were sufficient, we affirm.

                    Standard of Review and Applicable Law

      We review a trial court’s ruling on a motion to dismiss under section 74.351

for an abuse of discretion. 3 A plaintiff in a health care liability claim must provide

an expert report in support of the claim. 4       The reports must set out “a fair

summary of the expert’s opinions . . . regarding applicable standards of care, the

manner in which the care rendered by the physician or health care provider failed




      2
       Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2013).
      3
       Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008,
pet. denied).
      4
       Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).


                                          2
to meet the standards, and the causal relationship between that failure and the

injury, harm, or damages claimed.” 5

      An expert report must meet three elements: (1) “it must fairly summarize

the applicable standard of care;” (2) “it must explain how a physician or health

care provider failed to meet that standard;” and (3) “it must establish the causal

relationship between the failure and the harm alleged.” 6 If a report satisfies these

elements as to any theory of liability against a defendant, the plaintiff may

proceed on the suit against that defendant. 7

      Upon a defendant’s motion, the trial court must dismiss the claims against

the defendant if the plaintiff’s expert report does not represent an objective good

faith effort to comply with these requirements. 8 A report qualifies as an objective

good faith effort if the report “(1) inform[s] the defendant of the specific conduct

the plaintiff questions, and (2) provide[s] a basis for the trial court to conclude

that the plaintiff’s claims have merit.” 9      The report “meets the minimum

qualifications for an expert report under the statute ‘if it contains the opinion of an




      5
       Id. § 74.351(r)(6).
      6
       Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
      7
       Id.
      8
       Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l).
      9
       Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012).


                                          3
individual with expertise that the claim has merit, and if the defendant’s conduct

is implicated.’” 10

                                     Analysis

       Appellees alleged that on September 19, 2011, S.K. went to Fossil Creek

complaining of breast tenderness and pain. She was seen by Brenda Wilmore, a

nurse practitioner, who did not perform a physical examination. Dr. Simonak,

S.K.’s primary care physician, made a referral for a mammogram and ultrasound.

       On September 22, 2011, Dr. Skiles performed and interpreted the

mammogram. Dr. Skiles reported “indeterminate microcalcifications in the left

breast, probably benign” and recommended a follow-up study in three to six

months. S.K. alleged that in fact, the mammogram showed “a highly suspicious

cluster of microcalcifications in the upper outer quadrant of the left breast, with

adjacent groups of microcalcifications raising the possibility of multifocal

disease,” which should have led Dr. Skiles to recommend a biopsy. Dr. Skiles’s

report was sent to Dr. Simonak at Fossil Creek, but neither he nor anyone else at

Fossil Creek informed S.K. of the abnormal results or that she should have a

follow-up study done within three to six months.

       Between September 2011 and January 2013, S.K. went to Fossil Creek to

see Dr. Simonak or Nurse Wilmore multiple times for various medical reasons.




       10
         Id. (quoting Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011)).


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In none of those visits to Fossil Creek was she informed of her abnormal

mammogram results.

      In January 2013, S.K. consulted Dr. Mary Brian, a breast specialist, who

performed an in-office biopsy that “revealed high grade ductal carcinoma in situ

[(DCIS)].” The next month, Dr. Brian performed a mastectomy and left sentinel

node biopsy. Subsequent testing showed that S.K.’s cancer had spread to the

lymph nodes, leading to a diagnosis of multifocal Stage IIIC invasive ductal

carcinoma. She has since undergone chemotherapy and radiation therapy, and

her prognosis is “very poor.”

      Appellees alleged that Dr. Simonak was negligent in, among other acts,

failing to properly supervise Nurse Wilmore, failing to communicate and explain

the abnormal mammogram findings to S.K.; failing to adequately monitor S.K.;

and failing to render proper and timely care to S.K. to prevent the progression of

the cancer. They alleged that Dr. Skiles was negligent by, among other acts,

failing to accurately interpret and report S.K.’s mammogram; failing to recognize

the presence and significance of the mammogram results; and failing to

recommend that S.K. have a prompt biopsy.

      Appellees served Appellants with the expert reports of Dr. Peter D. de

Ipolyi, M.D., Dr. Suraj Achar, M.D., and Dr. Jeffrey B. Mendel, M.D. Appellants

filed objections to each expert report and motions to dismiss based on those

objections. Among other objections, Appellants complained that the reports were




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not adequate as to causation.       The trial court denied Appellants’ motions to

dismiss, leading to this appeal.

      On appeal, Appellants make three main arguments about the reports’

discussion of causation: (1) the reports did not discuss when S.K.’s lymph nodes

became positive for cancer or how the lymph nodes became involved during the

delay in diagnosis and treatment, (2) the reports did not account for the fact that

during the period in which S.K. was not diagnosed, she was pregnant, and (3)

aside from a lack of discussion of the lymph nodes, the reports did not explain

how the delay caused S.K.’s diagnosis to worsen.

      As for the first argument, Appellants did not raise in the trial court any

question about the failure to discuss lymph nodes, and the excerpts from the

Cancer Staging Manual they rely on here were not presented to the trial court.

The trial court therefore did not have this information in deciding whether the

reports adequately discussed causation. In determining whether the trial court

abused its discretion, we look at the information that the trial court had before it

at the time of its ruling. 11   We therefore will not consider this information in

deciding whether the trial court abused its discretion in determining that the

expert reports made a good faith effort at complying with statutory requirements.

      11
        See Finley v. Steenkamp, 19 S.W.3d 533, 540 n.3 (Tex. App.—Fort
Worth 2000, no pet.) (stating that we review the actions of a trial court based on
the evidence before the court at the time it acted); Methodist Hosps. of Dallas v.
Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is
axiomatic that an appellate court reviews actions of a trial court based on the
materials before the trial court at the time it acted.”).


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      As for the second argument, from the record, S.K. found out she was

pregnant in December 2011, and the experts all complained about Appellants’

failure to act in September 2011. The evidence does not show that she was

pregnant in September 2011. Accordingly, the argument that the reports were

inadequate because they did not account for S.K.’s pregnancy is unpersuasive.

      As to their third argument about causation, Appellants make two

subarguments. They complain that the reports asserted that but for Appellants’

negligence, S.K. would have been diagnosed in September 2011 or soon after

with DCIS and S.K.’s prognosis would have been good, but in January 2013, Dr.

Brian did what the reports say Appellants should have done, and even she

diagnosed DCIS, not Stage IIIC. Thus, either (i) S.K. had DCIS in January 2013,

and it only spread after that time (in which case, Appellants’ negligence did not

cause S.K.’s injuries), or (ii) a biopsy alone cannot determine whether a lymph

node will contain cancer, so even if Appellants had done exactly what the reports

say they should have done, the outcome would have been the same.

      With respect to subargument (ii)—that the reports suggest that a biopsy

alone cannot adequately diagnose a cancer stage and therefore Appellants’

compliance with the standard of care would have led to the same result—Dr.

Brian’s biopsy led to a cancer diagnosis, which led to treatment. The expert

reports asserted that following the standard of care in September 2011 would

have led to an earlier diagnosis and earlier treatment with a less invasive

treatment approach, and that “[t]umor size and involvement of lymph nodes often


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depends specifically on the time of detection.” And the opinions in the expert

reports were based, not just on the results of a biopsy, but also on reading the

September 2011 mammogram. Thus, an argument that a biopsy alone does not

lead to a correct diagnosis does not address Appellees’ allegations of

negligence.

      As to subargument (i)—that S.K.’s cancer did not spread until after she

was seen by Dr. Brian—Appellants argue that “Dr. Mary Brian . . . diagnosed

[DCIS] after Appellants’ involvement ceased. Dr. Brian found exactly what the

experts believed should have been found earlier,” and “[i]f Dr. Brian’s biopsy

report was correct, S.K. and her family have suffered no harm by the delay.” But

Dr. Brian’s diagnosis of DCIS was based on an initial biopsy. Less than a month

later, she performed a mastectomy and left sentinel node biopsy, and pathology

showed that the cancer had spread to the lymph nodes. Consequently, S.K. was

diagnosed with multifocal Stage IIIC invasive ductal carcinoma.          Appellees’

allegation, and that of their experts, has been that if S.K. had been treated in

accordance with the standard of care, her cancer would have remained

noninvasive, she would not have had to have chemotherapy, and her prognosis

would have been good. But because the cancer was not timely diagnosed, the

cancer became invasive, chemotherapy was required, and her prognosis is poor.

      Dr. Achar’s report stated that “[i]nformation sharing, more likely than not,

would have led [S.K.] to the conclusion that she would like to see a specialist like

the specialist who ultimately diagnosed her,” and that the failure to share led her


                                         8
to “falsely believe that her breast symptoms were not cancer, delayed the

ultimate diagnosis, and worsened her outcome.” Dr. Mendel stated in his report

that if the abnormalities had been correctly identified and reported with a

recommendation for a biopsy, then a biopsy would have been performed, and

S.K.’s diagnosis would likely have been reached within days.

      In his report, Dr. de Ipolyi stated that “[h]ad Dr. Skiles properly

recommended a biopsy following the September 22, 2011 mammogram, more

likely than not a Fine Needle Aspiration Biopsy (FNAB) or Core Needle Biopsy

(CNB) would have been performed within a short period,” and that if the biopsy

been performed three to six months following the 2011 mammogram, it would

have resulted in S.K. being diagnosed with DCIS.

      He further stated:

             DCIS refers to a cancer started in a duct (the tube that carries
      the milk from the lobule to the nipple) that has not spread to the
      nearby breast tissue or other organs.). DCIS is the most treatable
      form of breast cancer that carries the best prognosis. Had [S.K.]
      been properly diagnosed shortly after the mammogram, or shortly
      after the recommended follow-up period, her treatment would have
      most likely been lumpectomy with radiation or mastectomy surgery.
      Chemotherapy is not required for DCIS, and [S.K.]’s prognosis would
      have been excellent. By definition, there is no risk of distant
      recurrence since the cancer is noninvasive. For women having
      lumpectomy with radiation, the risk of local recurrence ranges from
      5–15 percent. For women having mastectomy, the risk of local
      recurrence is less than 2 percent. Large clinical trials, conducted by
      the National Surgical Adjuvant Breast and Bowel Project, show that
      the overall 15 year survival rate exceeded 85%, with the incidence of
      death from breast cancer less than 5 percent. Quite simply, with
      timely follow-up exams and biopsy, [S.K.] would likely not have
      required chemotherapy and/or died from breast cancer.



                                        9
             Because Dr. Skiles, Dr. Simonak, and [Fossil Creek] failed to
      provide timely/proper follow-up and care, [S.K.]’s breast cancer was
      not diagnosed and treated before it spread. Pathology following her
      February 2013 surgery revealed multiple positive lymph nodes (14
      out of 28) and she was diagnosed with multifocal Stage IIIC invasive
      ductal carcinoma. The treatment and prognosis for this cancer is
      vastly different than DCIS. Treatment for multifocal Stage IIIC
      invasive ductal carcinoma involves modified radical mastectomy
      surgery (removing the whole breast that has cancer, many of the
      lymph nodes under the arm, the lining over the chest muscles, and
      often part of the chest wall muscles) followed by radiation therapy
      (using high-energy x-rays or radiation to kill cancer cells or keep
      them from growing) and chemotherapy (using drugs to stop the
      growth of cancer cells, either by killing the cells or by stopping them
      from dividing). Based upon the most recent numbers published by
      the National Cancer Data Base, [S.K.] has a less than 50% chance
      of surviving 5 years, even with the best treatment available.

And he stated that the failure in September 2011 “to conduct and document a

physical examination prevented healthcare providers from being aware of the

clusters of abnormal tissue in [S.K.]’s left breast, much less tracking its

size/appearance over time.” Thus, as to Appellants’ arguments that the expert

reports do not show how the cancer progressed during the period of delay, and

they therefore do not show that S.K.’s prognosis worsened because of the delay,

this expert report points out that it was Appellants’ negligence that prevented

S.K. from being able to demonstrate precisely when her cancer spread.

      We hold that the expert reports were sufficient as to causation. These

reports made a good faith effort at informing the trial court and Appellants of the

causal relationship between the Appellants’ failures and the harm alleged by

Appellees. Accordingly, we overrule Appellants’ sole issue.




                                        10
                                  Conclusion

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




                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

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

DELIVERED: June 26, 2014




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