

Opinion filed June 24,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-09-00336-CV
                                                    __________
 
             WORK &
REHAB, L.L.C., DWAIN KLOSTERMAN, O.T.
     D/B/A BUBBA
KLOSTERMAN, AND DONNA WALLS, O.T., Appellants
 
                                                             V.
 
     JANICE STEVENS, INDIVIDUALLY
AND AS ADMINISTRATRIX
   OF THE ESTATE OF MARK
D. STEVENS, DECEASED, ET AL, Appellees

 
                                   On
Appeal from the 259th District Court
 
                                                             Jones
County, Texas
 
                                                     Trial
Court Cause No. 21,869
 

 
                                            M
E M O R A N D U M   O P I N I O N
            The
trial court denied appellants’ motion to dismiss this health care liability
claim.  We reverse and remand.
            Appellees
allege in their pleadings that Mark D. Stevens injured his back while bailing
hay at his job.  They also allege that Dr. James D. Key treated Stevens for his
injuries.  That treatment involved the placement of screws in Stevens’s back. 
Stevens received insurance benefits for a period of time.  At some point in
time, the insurance carrier notified Stevens that he had to submit to a
Functional Capacity Evaluation (FCE).  To that end, Stevens saw occupational
therapists Dwain Klosterman and Donna Walls, employees of Work & Rehab,
L.L.C.  Although disputed by appellants, it is the position of appellees that
surgical hardware in Stevens’s back shifted during the course of this
evaluation.  Appellants take the position that the evaluation was terminated
early because of Stevens’s elevated blood pressure and that he never reached
the physical part of the evaluation.
            Appellees
maintain that, as a result of the FCE, Stevens was in severe pain and that he
had increased the dosage of OxyContin that previously had been prescribed for
him.  Some six months after the FCE, Stevens died from “aspiration of vomitus”
brought about by “Oxycodone and Diazepam intoxication.”
            Appellees
brought this health care liability claim to recover damages, including those
connected with increased prescription medication, that they assert were the
result of the FCE.  
In
connection with this claim, appellees filed a report from Dr. Key, an
orthopedic surgeon.  They also filed a report from Paul A. Fontana, an
occupational therapist.  Appellants objected to both reports claiming that they
were insufficient under the provisions of Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009). 
Appellants also took the position that the insufficiencies in the reports were
such that they were incurable, and they wanted the trial court to dismiss the
claims.  The trial court disagreed and denied the motion to dismiss.
            In
one issue, appellants reassert their claim that the expert reports were
insufficient and incurable and that the trial court erred when it held
otherwise.
            We
review a trial court’s order on a motion to dismiss under an abuse of discretion
standard.  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877 (Tex. 2001); Maxwell v. Elkins, 197 S.W.3d 858, 861
(Tex. App.—Eastland 2006, pet. denied).  In that review, it is necessary for us
to determine whether the trial court acted in an unreasonable or arbitrary
manner and without reference to any guiding rules or principles.  Walker v.
Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) Maxwell, 197 S.W.3d at
861.  In matters committed to a trial court’s discretion, we will not substitute
our judgment for that of the trial court.  Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992).  A trial court does not abuse its discretion simply
because it decides a discretionary issue in a manner differently than would the
appellate court.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985).
            A
claimant in a health care liability claim must timely file and serve on each
party, or on a party’s attorney, an expert report or reports for each physician
or health care provider against whom a liability claim is asserted.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)
(Vernon Supp. 2009).  The term “expert report” means:
[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) (Vernon Supp. 2009).
            The
report must represent an objective good faith effort to comply with the
definition of an expert report.  Section 74.351(r)(6).  Before a report will
constitute an objective good faith effort to comply with the statute, it must
provide enough information to inform the defendant of the specific conduct that
the plaintiff has called into question.  Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002).  Further, the report must contain enough information
to provide a basis for the trial court to conclude that the claim has merit.  Id. 

In determining whether an expert report constitutes a good faith effort
to comply with the statute, a trial court is limited to the four corners of the
report and may not draw any inferences.   Palacios, 46 S.W.3d at
878-79.  However, separate reports may be considered together to determine
whether there has been a good faith effort to comply with the statute.   Tex. Civ. Prac. & Rem. Code Ann. §
74.351(i) (Vernon Supp. 2009).
The
report must contain a fair summary of the expert’s opinions as of the date of the
report as to the applicable standard of care; the manner in which the care that
was rendered failed to meet that standard; and the causal relationship between
that failure and the injury, harm, or damages claimed.  Section 74.351(r)(6). 
While a plaintiff need not marshal all of its proof, the expert report must
include the expert’s opinion on each of those elements.  Id.  The expert
must state more than bare conclusions as to those elements and must link his
conclusions to the facts.  Bowie Mem’l Hosp., 79 S.W.3d at 52.  In his
report, the expert must do more than provide insight into the claim.  Id.
If a proper expert report has not been timely served, the trial court
shall, upon motion of the affected physician or health care provider, award
such party reasonable attorney’s fees and costs of court and shall dismiss the
claim with prejudice.  Section 74.351(b).  The trial court may, however,
if elements of a report are found deficient, grant one thirty-day extension so
that the claimant might cure the deficiency.  Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2009).
            We
first examine the report authored by Dr. Key.  Appellants do not attack Dr.
Key’s qualifications.  In this court, they direct their sole complaint at Dr.
Key’s failure to address causation in an adequate manner.  
Dr.
Key was the surgeon who placed screws in Stevens’s back when Stevens was
injured while baling hay.  He reports that Stevens lived with severe pain from
the time of his injury on June 3, 2005, to the time of his death in September
2007, with the exception of a short period of time post-surgery.  
Dr.
Key reports that “one or more” of the screws he had placed in Stevens’s back
became loosened during the FCE.  Although he reports that Stevens was taking “a
reasonable amount of valium” for anxiety and muscle relaxation “without any
side effects for quite some time,”  Dr. Key also states that the pain from
the nerve injury caused from the loosened screw or screws resulted in Stevens
increasing his intake of OxyContin.  Dr. Key notes in his report that OxyContin
is highly addictive and that “Mr. Stevens had a known sensitivity to this
medication.”   Dr. Key refers to the results of an autopsy performed on
Stevens.  The stated cause of death was “Oxycodone and Diazepam intoxication
and aspiration of vomitus.”  The oxycodone (OxyContin) level was three times the
maximum therapeutic level.
Dr.
Key’s entire report is premised upon his assumption that “one or more” of the
screws had become loosened because of the stressful nature of the FCE. 
However, one cannot tell from the report how Dr. Key knew that one or more of
the screws had loosened.  While he describes the type of pain that is typically
associated with loosening of surgically implanted hardware and while he states
that Stevens suffered from pain, he never reports that he or anyone else
examined or saw Stevens after the date of the FCE in connection with the
hardware in his back.  He refers to an earlier “post-surgical follow-up,” but
no others after the FCE.  As we have noted, we are bound to review the expert
report within its four corners.  When we limit our examination to the four
corners of the report, Dr. Key’s statement that “one or more screws” were
loosened is speculative and conclusory.  
Appellants
also attack the report authored by Fontana, an occupational therapist.  We note
that they make no claim that Fontana is not qualified to address causation.  See
Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(5)(C) (Vernon Supp. 2009) (physician to give opinion on causal
relationship between injury, harm, or damage, and departure from standard of
care).  We also note that appellants have made no claims here regarding
Fontana’s comments on the standards of care or the breach of those standards. 
Rather, the argument is that Fontana fails to show a causal link between their
involvement in the FCE and Stevens’s death.  
Again,
we are confined to the four corners of the report.  Palacios, 46 S.W.3d
at 878.  Fontana’s report suffers from the same defect as Dr. Key’s report.  Fontana
does add the additional note that, at the time of the FCE, Stevens was six
months post-lumbar fusion (during which procedure nine screws were placed in
Stevens’s back).  He also notes that Stevens was three and one-half months
post-cervical fusion (during which procedure six screws were placed in
Stevens’s back).  He opines that he “would conclude that the activities the
therapists had him perform during the 2½ hours they worked with Mr. Stevens
resulted in a movement in the screws, that resulted in the significant increase
in pain the therapists report.”
Fontana
bases his opinion, in part, upon the report of Dr. Key.  Fontana’s opinions
were based on the speculative conclusion that some one or more of the fifteen
screws to which he referred shifted during the FCE and caused Stevens’s pain to
increase.  As with Dr. Key’s report, the trial court would have to go outside
the four corners of the report to make that determination, and that it cannot
do.  Id.  
Because
the basic premise of Dr. Key’s report – that one or more screws were loosened
in Stevens’s back – is speculative and conclusory, it does not provide a basis
for the trial court to conclude that the claim has merit.  Bowie Mem’l Hosp.,
79 S.W.3d at 52.  Fontana’s report suffers from the same defect as Dr. Key’s
report, and it does not provide a basis for the trial court to conclude that
appellees’ claims have merit.  Id. 
Neither
Dr. Key’s report nor Fontana’s report represents an objective good faith effort
to comply with the definition of an expert report.  Section 74.351(r)(6).  We
sustain appellants’ sole issue as to all of appellees’ claims.
We
reverse the judgment of the trial court and remand this case to the trial court
so that it might determine whether to grant a thirty-day extension so that
appellees might attempt to cure the deficiencies in the reports.  Section 74.351(c);
Leland v. Brandal, 257 S.W.3d 204, 205 (Tex. 2008).
 
 
                                                                                    JIM
R. WRIGHT
                                                                                    CHIEF
JUSTICE
 
June 24, 2010
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

