      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00785-CV



                               John Klotz Stokes, M.D., Appellant

                                                  v.

                                    David Delarosa, Appellee1


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
        NO. D-1-GN-06-002153, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Dr. John Klotz Stokes appeals a district court order denying his motion to dismiss

David Delarosa’s health care liability claim against him for failure to file an expert report complying

with chapter 74 of the civil practice and remedies code. We will affirm the district court’s order.


                                         BACKGROUND

                Delarosa was injured in a car accident on April 11, 2004. He was treated at

Austin’s Brackenridge Hospital, where he was initially diagnosed with a fracture of the cervical

spine at the C5-6 level. Additional testing indicated that Delarosa’s right vertebral artery was

“occluded,” i.e., obstructed or blocked. Because of these findings, Dr. Stokes, a neurosurgeon, was

consulted. On April 12, 2004, Dr. Stokes performed a posterior cervical fusion on Delarosa, fusing




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           This cause was reassigned to the present panel and judge on March 18, 2009.
the C5-6 vertebrae and inserting pins, screws, and a plate. No action was taken to address the

occlusion in the right vertebral artery. According to Dr. Stokes in his briefing, the artery was not

“manipulated” because it “was found to be completely occluded by bone fragment.” Delarosa was

discharged on April 14, 2004.

               On April 17, 2004, Delarosa began complaining of difficulty walking. He was taken

to another local hospital and eventually transferred to Brackenridge, where a cerebral anteriogram

and CT of the head were performed. The tests showed that Delarosa had suffered one or more

strokes. According to the tests, the strokes were in the cerebellar region of the brain.

               On April 22, 2004, Delarosa was transferred to Healthsouth Rehabilitation Hospital

because of problems with his gait and other complications resulting from his stroke. On May 5,

2004, he was discharged and treated as an outpatient.

               On June 14, 2006, Delarosa filed a health care liability claim against Dr. Stokes

and Brackenridge alleging negligence relating to the treatment he received immediately following

the car accident. On October 11, 2006—the 119th day after he filed suit—Delarosa filed the

expert report of Dr. John Sterling Meyer in an attempt to comply with section 74.351 of the

civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp.

2008). Contending that the Dr. Meyer’s report failed to comply with section 74.351, Dr. Stokes filed

a motion to dismiss. See id. § 74.351(b). The district court denied the motion. Stokes appealed.

See id. § 51.014(a)(9) (West 2008).




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                                           DISCUSSION

               A trial court’s decision to deny a motion to dismiss based on section 74.351 is

reviewed for an abuse of discretion. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);

see American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference

to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985).

               As noted, Delarosa’s health care liability claim is governed by chapter 74 of the

civil practice and remedies code, which requires that an adequate expert report be filed no later than

the 120th day after the date the claim is filed. Section 74.351 provides, in relevant part:


       (a)     In a health care liability claim, a claimant shall, not later than the 120th day
               after the date the original petition was filed, serve on each party or the party’s
               attorney one or more expert reports, with a curriculum vitae of each expert
               listed in the report for each physician or health care provider against whom
               a liability claim is asserted.
...
       (r)(6) “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 (a), (r)(6) (West Supp. 2008). Interpreting the

predecessor to section 74.351, the Texas Supreme Court explained:


       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. In setting out the expert’s
       opinions on each of those elements, the report must provide enough information to

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       fulfill two purposes if it is to constitute a good-faith effort. First, the report must
       inform the defendant of the specific conduct the plaintiff has called into question.
       Second, and equally important, the report must provide a basis for the trial court to
       conclude that the claims have merit.


Palacios, 46 S.W.3d at 875 (internal citations omitted); see Act of May 18, 1995, 74th Leg., R.S.,

ch. 140, § 1, sec. 13.01(r)(5), 1995 Tex. Gen. Laws 985 (repealed 2003).

               Dr. Stokes argues that Dr. Meyer’s expert report fails to meet statutory requirements

because it does not clearly state a single standard of care and because the opinions set out are “so

vague and conclusory that they do not provide a ‘fair summary’ of the applicable standard of care.”

Specifically, Dr. Stokes urges that Dr. Meyer provides inconsistent descriptions of the standard of

care. Dr. Stokes cites the following statements made by Dr. Meyer:


       Pursuant to the applicable standard of care, the occluded and now thrombosed right
       vertebral artery should have been treated immediately by thrombolytic agents injected
       into the vertebral artery during surgery with attempts to remove the thrombus by
       Dr. Stokes or consulting with an interventional radiologist for placing a catheter in
       the vertebral artery and removing the clot by suction or injection of tissue
       plasminogen activator (TPA) to lyse it.


Later in his report, Dr. Meyer writes:


       The Standard of Care requires that as soon as possible after the thrombosis of the
       vertebral artery was demonstrated that consultation be sought with a neurologist or
       neurosurgeon or interventional neuroradiologist to attempt to dissolve or remove the
       vertebral artery thrombosis. The standard of care also requires the physician to
       monitor the patient with anticoagulant or Heparin long-term and anti-platelet therapy
       using either Aspirin or Plavix.




                                                 4
Stokes argues that Dr. Meyer has presented two different standards of care and failed to explain

why or when each applies. Reading the two statements together, however, does not present the

conflict suggested by Dr. Stokes. In both instances, Dr. Meyer states that the applicable standard

of care requires immediate treatment and removal of the artery thrombosis. In the second instance,

Dr. Meyer adds that “the standard of care also requires” administration of certain medication

after surgery, as well as continued monitoring. There is no apparent contradiction between the

two statements.

               Also, with respect to the standard of care set out by Dr. Meyer, Dr. Stokes argues that

Dr. Meyer’s opinions are “so vague and conclusory that they do not provide a ‘fair summary’ of the

applicable standard of care.” And, according to Dr. Stokes, Dr. Meyer only mentions a breach of the

standard of care in an “even more vague and conclusory” manner, referring to the following:


       As noted above, Dr. Stokes’ surgical treatment fell below the standard of care, so that
       the patient, as a result of his negligence in ignoring the vertebral artery clot, suffered
       thrombosis of one of the four main arteries supplying the brain, which caused
       permanent disability and inability to work or lead a normal life.


In support of his argument that Dr. Meyer’s statements are too “vague and conclusory” to satisfy the

requirements of section 74.351(r)(6), Dr. Stokes relies on McKenna Memorial Hospital v. Quinney,

No. 03-06-00119-CV, 2006 Tex. App. LEXIS 9781 (Tex. App.—Austin Nov. 10, 2006, pet. denied)

(mem. op.) and on Hardy v. Marsh, 170 S.W.3d 865 (Tex. App.—Texarkana 2005, no pet.). In

McKenna, we compared the statements in the expert report at issue to those deemed conclusory by

the supreme court in Palacios:




                                                   5
       He states that on the intake form the triage nurse checked off as “N/A (not
       applicable)” three areas that “should have been at the top of the concern here,” but
       he does not state what the triage nurse should have done differently in filling out the
       form. Dr. Lowry’s report criticizes Dr. Butter for not conducting a “thorough enough
       history,” for failing to perform a “thorough enough exam to even justify the
       ‘radiculopathy’ diagnoses,” for not “delv[ing] into the possibility of an OB etiology,”
       and for not taking any labs or x-rays. While in hindsight it may be possible to point
       out additional steps that could have been taken to diagnose Quinney’s MRSA
       infection, Dr. Lowry’s report does not explain what steps an ordinarily prudent
       physician would have been required to take. Dr. Lowry does reference other doctors
       in his report when he states that “most doctors I know would automatically be
       thinking a Gyn/Ob issue is possibly going on here and the ‘hip’ or low-back pain may
       be being caused by this.” This comment falls short of invoking an appropriate
       standard of care, which inquires as to what an ordinarily prudent doctor would have
       done under the same or similar circumstances.


2006 Tex. App. LEXIS 9781, at *12-13. The distinguishing factor in McKenna is that, while the

expert report provided additional steps that, “in hindsight,” “could have been taken to diagnose” the

infection, the report did not state what the medical providers should have done differently at the time

of treatment. Here, in contrast, Dr. Meyer clearly states what should have been done differently:

the artery thrombosis should have been immediately treated and removed, anti-platelet therapy

should have been administered, and Delarosa should have both been monitored and instructed as to

signs and symptoms of impending stroke. McKenna, therefore, offers little support for Dr. Stokes’s

contentions.

               In Hardy, the expert statements at issue were the following:


       An important consideration which would help discern procedures to be followed
       would be a demonstration of an adequate run-off to the vessels supplying the legs.
       Judicious use of aortagrams [sic] and more distal arteriorgrams [sic] are considered
       important adjuncts in the precise and effective management of ischemic disease of
       the lower extremities.



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170 S.W.3d at 869. The court held that these statements did not describe a standard of care, but

merely set out an “important consideration” and “d[id] not state the procedures or treatments that

should have been followed when [the claimant] complained of leg pain.” Id. Further, according to

the Hardy court, nothing in the report was sufficient to put the doctor on notice of the specific

conduct at issue: “‘It is not sufficient for an expert to simply state that he or she knows the standard

of care and concludes it was [or was not] met.’” Id. (quoting Palacios, 46 S.W.3d at 880).

                Here, Dr. Meyer described the standard of care and what should have been done

differently: the artery thrombosis should have been immediately treated and removed, anti-platelet

therapy should have been administered, and Delarosa should have both been monitored and

instructed as to signs and symptoms of impending stroke. Hardy, therefore, like McKenna, offers

little support for Dr. Stokes’s contentions.

                Dr. Stokes also argues that Dr. Meyer’s report failed to describe “how the breach of

the standard of care caused injury, harm, or damages.” See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(6). According to the report, however, if Delarosa had been given the proper instructions

about signs and symptoms of impending stroke, Delarosa would have known to “return to the

hospital immediately” when these symptoms occurred and “the outcome would have been better

more likely than not.” Further, according to Dr. Meyer:


        Dr. Stokes’ surgical treatment fell below the standard of care, so that the patient, as
        a result of his negligence in ignoring the vertebral artery clot, suffered thrombosis of
        one of the four main arteries supplying the brain, which caused permanent disability
        and inability to work or lead a normal life.




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As to this statement, Dr. Stokes argues:


       Dr. Meyer’s one sentence does not come close to addressing causation with the
       specificity required under the statute. He does not state what surgical treatment of
       Dr. Stokes caused the alleged damages or how Dr. Stokes was allegedly negligent in
       ignoring the clot.


To support his causation argument, Dr. Stokes relies on Ehrlich v. Miles, 144 S.W.3d 620

(Tex. App.—Fort Worth 2004, pet. denied), and on Hardy, 170 S.W.3d 865. In Ehrlich, because the

expert was deemed not qualified to testify to much of what was originally contained in his report,

the following was the only remaining statement of causation: “His [the doctor’s] negligent activity

that I listed above is the proximate cause of this patient’s pain and suffering.” Determining that this

statement was insufficient to comply with the requirements of the predecessor to section 74.351, the

court explained:


       The report fails to state whether each negligent activity listed above independently
       caused Appellant’s pain and suffering or if each negligent activity combined to cause
       her pain and suffering. Because we hold that Dr. Marable is not qualified to testify
       to some of the negligent activity alleged in the report, the phrase “negligent activity
       that I listed above,” without a specific indication that each alleged negligent activity
       was an independent cause, fails to link Dr. Marable’s qualified statements of alleged
       negligent activities to the specific injuries in this case.


Erhlich, 144 S.W.3d at 628.

               The circumstances giving rise to the court’s conclusion in Erhlich are distinguishable.

There, some of the testimony as to the doctor’s negligent activity had been excluded, and a simple

statement linking the “patient’s pain and suffering” to the “negligent activity” was, therefore,

insufficient. The Erhlich court had previously explained:

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       To comply with the expert report requirement, a plaintiff must only make a good
       faith attempt to provide a fair summary of the expert’s opinions. It is the substance
       of the opinions, not the technical words used, that constitutes compliance with the
       statute. The expert report may be informal, and the information presented need not
       meet the same requirements as evidence offered in a summary judgment proceeding
       or in a trial.


Id. at 626-27 (internal citations omitted). Here, the substance of Dr. Meyer’s report sets out his

opinion that Dr. Stokes’s “ignoring the vertebral artery clot” caused “thrombosis of one of the

four main arteries supplying the brain, which caused permanent disability and inability to work or

lead a normal life.” Such statement is sufficient to satisfy the causation requirements set out in

Erhlich and in section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Erhlich,

144 S.W.3d at 626-27.

               In Hardy, the expert sought to establish causation with the following:


       It is my opinion that this patient should have had a consultation with a vascular
       surgeon in view of his complaints before his discharge on 8-9-02. I recognize fully
       the importance of his other medical problems. It is my opinion then that if this
       patient had had more immediate treatment that a salvage of his right leg would have
       been more probable.


170 S.W.3d at 868. Determining that the statements were insufficient to establish causation, the

court explained:


       Nothing in this paragraph links Marsh’s alleged inaction (immediate treatment as
       opposed to discharge) to Clyde’s injury (the amputation). The report merely states
       that Clyde “should have had a consultation with a vascular surgeon.” It does not state
       what additional procedures or treatment would have been provided by the surgeon.
       Nor does it connect the consultation to avoidance of the amputation. Nowhere in the
       expert report does Cassella set forth factors or explain the medical basis for his



                                                 9
       opinion that “if this patient [Clyde] had had more immediate treatment that a salvage
       of his right leg would have been more probable.”


Id. at 870. Here, however, as already noted, Dr. Meyer links Dr. Stokes’s alleged inaction—failing

to address and treat the vertebral artery clot—with Delarosa’s injury—“thrombosis of one of the

four main arteries supplying the brain, which caused permanent disability and inability to work or

lead a normal life.” Thus, Dr. Meyer’s statements are distinguishable to those deemed insufficient

in Hardy. See id.

               Because Dr. Meyer’s report sets out the standard of care—immediately addressing

and treating the artery thrombosis—Dr. Meyer has sufficiently “inform[ed] [Dr. Stokes] of the

specific conduct [Delarosa] has called into question.” See Palacios, 46 S.W.3d at 875. And,

Dr. Meyer’s opinion that failure to immediately address and treat the vertebral clot caused

“thrombosis of one of the four main arteries supplying [Delarosa’s] brain, which caused permanent

disability and inability to work or lead a normal life,” Dr. Meyer’s report “provide[s] a basis for

the trial court to conclude that the claims have merit.” See id. In these circumstances, we cannot

conclude that the district court abused its discretion in finding that the report satisfied the

requirements of section 74.351. See Tex. Civ. Prac & Rem. Code Ann. § 74.351(a), (r)(6); Downer,

701 S.W.2d at 241-42. Accordingly, we overrule Dr. Stokes’s first issue.

               In a second issue, Dr. Stokes argues that the district court should have granted his

motion to dismiss because Dr. Meyer is not qualified to give opinions regarding the standard of care.

We review a trial court’s determination that an expert is qualified under an abuse-of-discretion

standard. Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996).



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                In a suit involving a health care liability claim against a physician, a witness is

qualified to testify as an expert as to the physician’s deviation from the applicable standard of care

if he or she:


        (1) is practicing medicine at the time such testimony is given or was practicing
        medicine at the time the claim arose;

        (2) has knowledge of accepted standards of medical care 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 medical care.


Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a) (West 2005). To assist the court in making a

determination as to whether the expert is qualified on the basis of training or experience, the court

shall consider whether the witness:


        (1) is board certified or has other substantial training or experience in an area of
        medical practice relevant to the claim; and

        (2) is actively practicing medicine in rendering medical care services relevant to the
        claim.


Id. § 74. 401(c). A trial court may “depart from [these] criteria if, under the circumstances, the court

determines that there is a good reason to admit the expert’s testimony,” but, if the court does so, it

must state the reason for the departure on the record. Id. § 74.401(d).

                According to Dr. Meyer’s curriculum vitae (CV), he currently holds the position

of Emeritus Professor of Neurology at Baylor College of Medicine. He is board certified by the

American Board of Psychiatry and Neurology. From 1957 to the present, he has been a professor

                                                  11
or adjunct professor of neurology at several universities, including Baylor College of Medicine,

where he maintains his permanent office. He has also been involved in the practice of neurology

in various hospitals since 1957, including several current consulting positions at Houston hospitals

as well as an active staff position at The Methodist Hospital and Ben Taub General Hospital in

Houston. Dr. Meyer’s CV also includes several pages of honors and appointments in the field

of neurology. In addition, Dr. Meyer has published 29 books in the field of neurology and over

900 articles related to neurology over the course of his career.

                Despite these qualifications, Dr. Stokes argues that Dr. Meyer never states in his

report that “he has knowledge of the accepted standards of care for the diagnosis, care, or treatment

of the illness, injury, or condition involved in this claim” or that “he is qualified on the basis of his

training or experience to offer expert opinions regarding Dr. Stokes’ standard of care in this case.”

Dr. Stokes relies chiefly on Broders v. Heise in contending that Dr. Meyer, even though qualified

in general matters of neurology, is unqualified to give opinions as to matters of neurosurgery and,

in particular, as to the surgery at issue here. See 924 S.W.2d 148. He emphasizes the following

passage from Broders:


        [G]iven the increasingly specialized and technical nature of medicine, there is no
        validity, if there ever was, to the notion that every licensed medical doctor should be
        automatically qualified to testify as an expert on every medical question. Such a rule
        would ignore the modern realities of medical specialization.


Id. at 152.

                However, given the nature of Delarosa’s claim and the proffered opinions, we

conclude that the district court did not abuse its discretion in concluding that Dr. Meyer was

                                                   12
qualified to render those opinions. Dr. Meyer opined that the artery thrombosis should have been

immediately treated and removed, that anti-platelet therapy should have been administered, and that

Delarosa should have both been monitored and instructed as to signs and symptoms of impending

stroke. A doctor who, like Dr. Meyer at the time of his testimony, holds an “active staff” position

in neurology at The Methodist Hospital and Ben Taub General Hospital, is a professor of neurology

at Baylor College of Medicine, is an adjunct professor of neurology for various other universities,

is a consulting physician in the field of neurology for several hospitals, and is board certified in

psychiatry and neurology, is qualified to opine that, in these circumstances, the artery thrombosis

should have been immediately treated and removed, anti-platelet therapy should have been

administered, and Delarosa should have both been monitored and instructed as to signs and

symptoms of impending stroke. Accordingly, we overrule Dr. Stokes’s second issue.


                                         CONCLUSION

               Having overruled Dr. Stokes’s issues, we affirm the order of the district court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson

Affirmed

Filed: June 4, 2009




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