                             NUMBER 13-06-413-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


HAROON ISMAIL PATEL, M.D., ET AL.,                                         Appellants,

                                           v.

TRENA RODRIGUEZ, INDIVIDUALLY
AND AS REPRESENTATIVE FOR THE
ESTATE OF CORINA RENEE GUTIERREZ,
DECEASED,                                                                    Appellee.


  On appeal from the 214th District Court of Nueces County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      In this interlocutory appeal, appellants, Haroon Ismail Patel, M.D., Paul E. Stobie,

M.D., and SheilaYvonne Owens-Collins, M.D., appeal the denial of their motion to dismiss

a medical negligence lawsuit filed by appellee, Trena Rodriguez, individually and as
representative for the estate of Corina Renee Gutierrez, deceased.1 By various issues and

sub-issues, appellants contend the trial court abused its discretion in denying their motion

to dismiss the suit. We affirm.

                                          I. Background

        Appellee’s daughter, Corina Renee Gutierrez, was born on November 25, 2003. A

few hours later, Corina was transferred to Driscoll Children’s Hospital for surgery to repair

her gastroschisis, a congenital defect which allowed loops of her bowels to protrude

through an opening in her abdominal wall. Dr. Patel, a pediatric surgeon successfully

performed the surgery around midnight on November 25. Dr. Patel placed a central

venous catheter (“CVC”) for administering medication and nourishment to Corina post-

operatively.

        Dr. Stobie, a neonatologist, was the admitting physician; he monitored and treated

Corina for the short time she was in the Neonatal Intensive Care Unit (NICU). Dr. Owens-

Collins, a neonatologist, also monitored and treated Corina. Over the next ten hours,

Corina’s condition deteriorated; she went into cardiorespiratory arrest and died at

approximately 10:30 p.m. on November 26, 2003.

        Appellee alleges that Dr. Patel improperly placed the CVC line, which was used

post-operatively to feed Corina total parenteral nutrition fluid (TPN). According to appellee,

the malpositioned central line caused fluid to leak into the pleural cavity surrounding

Corina’s lungs, which caused her to die by “literally drown[ing] in TPN fluid.” Appellee also

alleges that Drs. Stobie and Owens-Collins negligently failed to adequately monitor Corina



        1
          Appellee alleges that the death of her one-day-old daughter, Corina Renee Gutierrez, was caused
by the m edical treatm ent she received— or failed to receive— from appellants.

                                                   2
for complications arising from the misplaced catheter, and as a result, failed to timely

address her pleural effusion complications.

       Appellee filed suit against appellants on January 23, 2006; she also filed two expert

reports—one from William Rhine, M.D., a pediatrician and neonatologist, and a second

report from Steven A. Sahn, M.D., a pulmonologist and specialist in pleural effusions. Each

appellant filed a motion to dismiss, contending that the expert reports do not constitute a

good-faith effort to comply with the expert-report requirements.2 Following a hearing on

June 27, 2006, the trial court denied appellants’ motions to dismiss.

                                                   II. Jurisdiction

       We begin by addressing our jurisdiction over this interlocutory appeal. Appellee

raises the issue of jurisdiction, noting that section 54.014 of the civil practice and remedies

code authorizes an appeal only from (1) an order that denies relief sought under section

74.351(b) and (2) an order that grants relief sought under section 74.351(l).3 Since appellee

filed her briefs, the supreme court has held that a challenge to the sufficiency of an expert

report is a challenge pursuant to section 74.351(b) that no compliant report has been

served.4 Therefore, we have jurisdiction to consider appellant’s interlocutory appeal.5

                             III. Standard of Review and Applicable Law

       We review the trial court’s decision to deny a motion to dismiss under an abuse of


        2
            See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(a), (l), (r)(5)-(6) (Vernon Supp. 2008).

        3
            See id. § 51.014(a)(9), (10) (Vernon 2008).

        4
         See Lewis v. Funderburk, 253 S.W .3d 204, 207-08 (Tex. 2008); see also Gelman v. Cuellar, No.
13-07-00651-CV, 2008 Tex. App. LEXIS 6173, at *5 (Tex. App.–Corpus Christi August 14, 2008, no pet. h.).


        5
            See T EX . C IV . P RAC . & R EM . C OD E A N N . § 51.014(a)(9).

                                                              3
discretion standard.6 The trial court is limited to reviewing the information within the four

corners of the report.7 “A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles.”8 An appellate

court may not reverse for abuse of discretion simply because it would have decided the

matter differently.9

       “With respect to resolution of factual issues or matters committed to the trial court's

discretion, for example, the reviewing court may not substitute its judgment for that of the

trial court.”10 The appellant must “establish that the trial court could reasonably have

reached only one decision.”11 Conversely, a trial court has no discretion in determining

what the law is or in applying the law to the facts.12 “[A] clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion.”13

       Section 74.351 requires that a plaintiff serve on each party “one or more expert

reports, with a curriculum vitae of each expert listed in the report for each physician or




        6
        Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d 873, 877-78 (Tex. 2001); see
Gelman, 2008 Tex. App. LEXIS 6173, at *6.

        7
            Palacios, 46 S.W .3d at 878.

        8
         Bowie Mem'l Hosp. v. W right, 79 S.W .3d 48, 52 (Tex. 2002); Moore v. Sutherland, 107 S.W .3d 786,
789 (Tex. App.–Texarkana 2003, pet. denied) (citing Garcia v. Martinez, 988 S.W .2d 219, 222 (Tex. 1999)).

        9
            Downer v. Aquamarine Operators, Inc., 701 S.W .2d 238, 242 (Tex.1985).

        10
             W alker v. Packer, 827 S.W .2d 833, 839 (Tex.1992).

        11
             Id. at 840.

        12
             Id.

        13
             Id.

                                                     4
health care provider against whom a liability claim is asserted.”14 An “expert report” is

defined as

       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.15

A court must grant a motion to dismiss under section 74.351(b) if, after the 120-day

deadline has passed, it appears to the court that the report does not represent an objective,

good-faith effort to comply with the definition of an expert report.16

       To qualify as a “good-faith effort,” the report must “provide enough information to

fulfill two purposes”: (1) it must “inform the defendant of the specific conduct the plaintiff

has called into question,” and (2) it must “provide a basis for the trial court to conclude that

the claims have merit.”17 “A report that merely states the expert’s conclusions about the

standard of care, breach, and causation does not fulfill these two purposes. Nor can a

report meet these purposes and thus constitute a good-faith effort if it omits any of the

statutory requirements.”18

                                      IV. Sufficiency of Expert Reports

                                                        A. Dr. Patel

       In a single issue, Dr. Patel contends that the trial court abused its discretion in


        14
             T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(a).

        15
             Id. § 74.351(r)(6).

        16
             Id. § 74.351(l).

        17
             Palacios, 46 S.W .3d at 879.

        18
             Id.

                                                                5
denying his motion to dismiss because both expert reports failed to satisfy the statutory

requirements for an “expert report.”19 Specifically, Dr. Patel argues that Dr. Rhine’s report

is conclusory because it fails to set forth the standard of care, breach of the standard of

care, and proximate cause with respect to him. He also argues that Dr. Sahn’s report is

conclusory because it fails to set forth how Dr. Patel breached the standard of care and how

that alleged breach proximately caused Corina’s death.

                                               1. Dr. Sahn’s Report

       Dr. Patel argues that Dr. Sahn’s report is inadequate because it fails to state how

he breached the standard of care and how the alleged breach proximately caused Corina’s

death. In two single-spaced pages, Dr. Sahn’s report details the standard of care for

insertion of a CVC.20 The report states, in pertinent part:

        Summary [of medical facts]: This was a one-day old infant, who had a
        central line placed at about 1100 on 11/26/03 by Dr. Patel. The infant was
        under the care of Drs. Stobie and Collins.[21] The nurses’ notes indicate that
        the infant was reported to Dr. Stobie as “pale” following the procedure, but
        no new orders were received. ETT secretions were abnormal in color, but
        this was not acted upon. The infant’s labs were abnormal (TCOM
        documented increasing PCO2 and ABG showed acute hypercapnic
        respiratory failure with minimal metabolic acidosis (pH 7.04, PCO2 77 and
        PO2 85)[)], and despite radiology reports of bilateral lung opacification that
        suggested pleural fluid at 1942, no action was taken. The infant’s respiratory
        arrest was predictable, given her pulmonary profile and her clinical status as
        tracked by laboratory findings. The Code notations and Dr. Stobie’s lengthy
        note document the devastating effect of the pleural effusions that resulted
        from the estravascular migration of the CVC.

        Dr. Stobie’s notations are confirmed by the results of the autopsy report,


        19
             See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(r)(6).

        20
            Because Dr. Patel does not contend that the report fails to adequately state the standard of care
as to him , we do not quote that section of the report in its entirety.

        21
             Dr. Sahn and Dr. Rhine refer to Dr. Owens-Collins as “Dr. Collins.”

                                                               6
which established that Infant Corina Gutierrez had bilateral pleural effusions.
The report by the medical examiner indicates that the pleural fluid from the
left pleural space had a very high glucose concentration and was white,
indicative of TPN fluid. The right pleural cavity had been drained with a
chest tube during the code, with only 5mL of serosanguineous fluid
remaining.

The post-mortem was normal, with the exception of the abdominal defect,
the bilateral pleural effusions from TPN fluids, and the extensive soft tissue
and mediastinal hemorrhage. As noted by the medical examiner, “the most
significant finding in this case was the presence of large, bilateral milky
pleural effusions with markedly elevated glucose and triglyceride
concentrations, noted both premortem (right side) and postmortem (left side).
There was no evidence of ischemic injury, in particular to the central nervous
system. . . . In conclusion, this child appeared to have suffered a respiratory
compromise leading to death secondary to large, bilateral pleural effusions
consistent with total parenteral nutrition fluid.”

It is clear from that stated above that this infant died as a result of her TPN
fluid accumulating in her pleural space, effectively resulting in her respiratory
failure, cardiac failure, and death. This is precisely the area of subspecialty
medicine in which I have dedicated more than twenty-five years of research
and publication.

Standard of care:

       ....

Catheter malposition, a potentially devastating mechanical complication, is
defined by observing the tip of the catheter in an inappropriate position. This
complication can be detected in virtually 100% of cases if the post-procedure
chest radiograph is carefully examined. When catheter malposition is
diagnosed, it needs to be promptly corrected either by pulling the catheter
back and re-suturing it or exchanging the catheter at the bedside over a
guidewire. Catheter occlusion, venous thrombosis, venous embolism,
venous perforation with hemothorax or infusion of intravenous solution into
the mediastinum or pleural spaces or right atrial perforation with tamponade
may occur if the catheter tip does not lie parallel within the lumen of the
superior vena cava. . . .

Placement of a CVC requires that the standard of care be followed (supra
vide). The operator should have sufficient experience to choose the correct
site in a particular patient and understand potential risk factors for that
patient. The operator should also be cognizant of the complications that can
occur with the placement of CVCs. An immediate post-procedure chest


                                       7
radiograph should be performed to document the position of the catheter tip.
If the patient develops specific symptoms following insertion of a CVC, the
operator should immediately perform the appropriate diagnostic studies to
determine whether the patient’s symptomatology is due to a complication of
the catheter insertion or consequence of infusion of fluids. The attending
physician whose patient had placement of the CVC should have similar
knowledge so that they can respond appropriately to changes in the patient’s
status which may reflect complications of either the insertion or complications
related to mechanical, infectious, or thrombolic/embolic complications.

If the standard of care is followed, the patient’s clinical status, in addition to
the laboratory reports, the nursing and respiratory therapy notes, and the
imaging reports, should be meticulously observed and documented. If no
abnormalities are noted, it is highly unlikely that the patient’s respiratory
status has not been [sic] compromised by the CVC. Prompt attention by the
attending physician to any change in the respiratory status, including the
patient’s color, respiratory rate, ABG’s, and imaging studies, should result in
rapid assessment of the position and function of the CVC. If the standard of
care was followed, the potential sequellae from the bilateral pleural effusions
would have been minimized or prevented, with continued improvement
toward eventual discharge in a recovered state of health.

Standard of care for Dr. Patel

A surgeon who places a central venous line catheter should:

1. Document the correct position of the CVC tip by chest imaging.

2. Consider the possibility of the complication of a failed initial catheter
insertion.

3. Monitor the patient’s respiratory status post-procedure.

4. Act promptly if the respiratory status worsens in the hours following CVC
placement and fluid infusion.

Negligence of Dr. Patel: (inverse of above)

1. Dr. Patel failed to consider the possibility of the complication of a failed
initial catheter insertion.

2. Dr. Patel failed to monitor the patient’s respiratory status post-procedure.

3. Dr. Patel failed to act promptly if the respiratory status worsens in the
hours following CVC placement and fluid infusion.


                                        8
       Proximate Cause by Dr. Patel:

       It is my expert opinion that Dr. Patel’s failure to follow the standard of care,
       as noted in the preceding sections, for the care required by a surgeon in the
       correct placement and monitoring of CVC were a proximate cause of Infant
       Corina Gutierrez’s premature death as a direct result of her acute respiratory
       failure and subsequent cardiac failure caused by the bilateral pleural
       effusions that were a foreseeable consequence of extravascular migraton of
       the CVC.

       The admission and autopsy notes indicate that the only abnormality that
       afflicted Infant Corina Gutierrez was gastroschisis and bowel atresia, which
       Dr. Patel repaired. Having completed the repair, the baby should have
       progressed through recovery to discharge home and her death was entirely
       preventable. However, the leakage of TPN fluid through a malpositioned
       central venous catheter into her pleural space, as a result of Dr. Patel’s
       negligence, directly caused her respiratory and cardiac failure, and her
       premature death.

              ....

       . . . However, Drs. Patel, Stobie and Collins did not properly evaluate,
       monitor, diagnose, nor mange [sic] the infant’s increasingly deteriorating
       clinical status, with the result that her pleural effusions caused by leakage of
       TPN fluid into both pleural spaces progressed to cause acute hypercapnic
       and hypoxemic respiratory failure that resulted in her death. The pleural
       effusions were a foreseeable and detectable complication from extravascular
       migration of a CVC placed by Dr. Patel that could have been either avoided
       or timely managed, preventing her death. Although the infant was born with
       a congenital abdominal defect, this problem was addressed promptly, and
       the expected outcome is good for such patients. Therefore, it is my expert
       opinion that Infant Corina Renee Gutierrez would not have died, but for the
       negligence of Drs. Patel, Stobie and Collins to timely address her developing
       pleural effusions. This expert opinion is supported, not only by the results of
       the autopsy report indicating that her respiratory failure and cardiac
       insufficiency was a direct result of the pleural effusions from TPN fluid
       draining into her pleural cavities, but my opinion is also supported by the
       same finding noted by Dr. Stobie’s last chart entry dated 11/26/03 at 2238.

       According to Dr. Patel, the report contains “no explanation of what [he] did wrong

or what he should have done differently.” He complains that the report does not explain

(1) how he failed to consider the possibility of a failed catheter insertion or why he should



                                              9
have considered such a possibility, (2) what signs or symptoms he should have recognized

as indicating a failed catheter insertion, or (3) how he failed to monitor Corina’s respiratory

status, what symptoms required such monitoring, and how he “failed to act promptly” if her

respiratory status worsened. Dr. Patel also contends that the report is “conclusory

regarding proximate cause” because it fails to explain how the “conclusory assertions” that

he (1) failed to consider the possibility of a failed catheter insertion and (2) failed to monitor

Corina’s respiratory status caused her death. We disagree.

       Dr. Patel argues that Dr. Sahn’s report is similar to the reports found inadequate in

Longino v. Crosswhite22 and Martinez v. Riegel.23 In Longino, the Texarkana Court of

Appeals found that an expert report which stated only “that the delay in diagnosis [of

bacterial meningitis] caused significant and permanent neurological injuries” was

insufficient because it contained “mere conclusions concerning causation.”24 In Martinez,

a report which explained only that “the anesthetic agents” irritated “the already inflamed

lung tissue” failed to adequately explain the causal relationship between the defendants’

performance of surgery and the injuries suffered by the patient.25 We find these cases

distinguishable from the present case.

       As the supreme court has noted, “[w]hether a defendant breached his or her duty

to a patient cannot be determined absent specific information about what the defendant



       22
            Longino v. Crosswhite, 183 S.W .3d 913, 917-18 (Tex. App.–Texarkana 2006, no pet.).

       23
           Martinez v. Riegel, No. 04-05-00336-CV, 2006 Tex. App. LEXIS 5655, at *11 (Tex. App.–San
Antonio, no pet.) (m em . op.).

       24
            Longino, 183 S.W .3d at 918.

       25
            Martinez, 2006 Tex. App. LEXIS 5655, at *11.

                                                   10
should have done differently.”26 A fair summary sets forth what care was expected, but

was not given.27 Here, Dr. Sahn’s report provides specific information about what Dr. Patel

should have done differently. It states that Dr. Patel failed to consider the possibility of a

malpositioned cathether, failed to monitor Corina’s respiratory status, and failed to act

promptly if her respiratory status worsened (which it did). The report also contains

information about causation. It states that Dr. Patel’s failure to properly place and monitor

the CVC proximately caused Corina’s death “as a direct result of her acute respiratory

failure and subsequent cardiac failure caused by the bilateral pleural effusions that were

a foreseeable consequence of extravascular migration of the CVC.”

       We hold that Dr. Sahn’s report constitutes a good-faith effort to comply with the

requirements for an expert report.28                  Accordingly, we need not address Dr. Patel’s

complaints regarding Dr. Rhine’s report.29 We overrule Dr. Patel’s issue.

                                            B. Dr. Owens-Collins

       In her first issue, Dr. Owens-Collins, a neonatologist, challenges the expert report

filed by Dr. Sahn, a pulmonologist, on grounds that he lacks the qualifications to offer an

expert opinion regarding the standard of care applicable to a neonatologist. Thus,

according to Dr. Owens-Collins, Dr. Sahn’s report does not constitute a good-faith effort

to comply with the expert report requirements as to standard-of-care issues. In her second

issue, Dr. Owens-Collins contends that neither expert report adequately addresses the


       26
            Palacios, 46 S.W .3d at 880.

       27
            Id.

       28
            See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(r)(6); Palacios, 46 S.W .3d at 879.

       29
            See T EX . R. A PP . P. 47.1.

                                                          11
applicable standard of care and breach of the standard of care. Dr. Owens-Collins argues

that both expert reports are conclusory because neither specifically describes “what care

was expected, but not given.”30

       Appellee responds that (1) because of Dr. Sahn’s expertise in the causation,

diagnosis, and treatment of pleural effusions (the condition that caused Corina’s death),

he is qualified to offer an expert opinion regarding the standard of care; and (2) both expert

reports provide sufficient information and specificity to meet the statutory requirements.

We begin by examining the adequacy of Dr. Rhine’s report.

                                             1. Dr. Rhine’s Report

       Dr. Owens-Collins argues that Dr. Rhine’s report fails to provide sufficient

information and specificity to meet the requirements of chapter 74.31 Dr. Owens-Collins

also contends that Dr. Rhine’s report is conclusory as to causation because it fails to link

specific breaches of the standard of care to Corina’s death.

       The section of Dr. Rhine’s report that specifically addresses Dr. Owens-Collins

states, in pertinent part:

       Standard of Care for Dr. Collins:

       The assigned pediatric resident physician has a duty of diligent [sic] for the
       care of the patient. As such, the standard of care required that Dr. Collins:

       1. Assess the infant upon admission and review the plan of care.

       2. Document the treatment plan for the patient.

       3. Evaluate the patient for the cause of any significant adverse change in
       her condition, such as her deterioration in the evening of 11/26/03, including

       30
            See Palacios, 46 S.W .3d at 880.

       31
            See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(a), (l), (r)(5)-(6).

                                                              12
interpreting the chest radiograph that reflected her pleural effusion.

4. Contact a supervising neonatologist, if and when she encounters a
medical condition that she is unable to diagnose or treat, such as that
suffered by Infant Corina Gutierrez on 11/26/03.

Negligence of Dr. Collins:

1. Dr. Collins failed to order a chest radiograph to be done sooner than
1942, which would have led to earlier diagnosis and treatment of the
patient’s pleural effusion, given the changes seen compared to the
radiograph done at 1139.

2. Dr. Collins failed to diagnose the presence of a pleural effusion being
associated with the patient’s respiratory deterioration on the chest radiograph
performed at 1942.

3. Dr. Collins failed to contact Dr. Stobie in a timely enough fashion to allow
Dr. Stobie enough time to perform a needle aspiration of the patient’s chest,
which if done before her cardiorespiratory arrest, would have prevented its
occurrence.

Proximate Cause by Dr. Collins:

       It is my expert opinion that Dr. Collins’ failures to follow the standard
of care, as noted in the preceding sections, for the care required by a
physician in the evaluation of a patient with a central line, were a proximate
cause of Corina Gutierrez’s premature death as a direct result of her
respiratory and cardiac failure caused by the bilateral effusions that were a
foreseeable potential consequence of the improper placement of her central
line. Dr. Collins’ delay in diagnosis and consultation with a more experienced
physician led to the infant’s overwhelming cardiorespiratory failure and
death.

       ....

        . . . However, Drs. Stobie and Collins did not properly evaluate,
monitor, diagnose, nor manage the infant patient’s increasingly deteriorating
clinical status, with the result that her pleural effusion from the leakage of
intravenous fluid including nutritional support into her pleural cavity worsened
to fill both sides, caused her respiratory failure, leading to cardiac
insufficiency and her painful death, including a very invasive code sequence.

       ....



                                      13
               The pleural effusions were a foreseeable and knowable complication
       from the placement of her central venous line by Dr. Patel, and could have
       been either avoided or managed in a timely fashion, preventing her death.
       Although the infant was born with a congenital abdominal defect, this
       problem was addressed promptly, and the expected outcome is very good
       for such patients. Therefore, it is my expert opinion that the infant, Corina
       Renee Gutierrez, would not have died during this neonatal hospitalization,
       but for the negligence of Drs. Stobie and Collins to timely address her
       developing pleural effusions that were evident in the infant’s charting. This
       expert opinion is supported not only by the results of the autopsy report
       indicating that her respiratory failure and cardiac insufficiency was a direct
       result of the pleural effusions of nutritional fluid into her pleural cavity, but my
       opinion is also supported by the same finding noted by Dr. Stobie in the
       chart, in his last entries dated 11/26/03 at 2258 and 11/26/03 (actually
       11/27/03) at 0023 and 0035.

       Dr. Owens-Collins argues that “[a]lthough Dr. Rhine mentions ‘interpreting the chest

radiograph’ that reflects a ‘pleural effusion,’ he fails to link that alleged standard with any

specific breach.” We disagree. Dr. Rhine specifically states that “Dr. Collins failed to

diagnose the presence of a pleural effusion being associated with the patient’s respiratory

deterioration on the chest radiograph performed at 1942.” He also states that Corina

“would not have died during this neonatal hospitalization, but for the negligence of Drs.

Stobie and Collins to timely address her developing pleural effusions that were evident in

the infant’s charting.” We conclude that Dr. Rhine’s report is sufficiently specific to (1)

“inform [Dr. Owens-Collins] of the specific conduct [appellee] has called into question,” and

(2) “provide a basis for the trial court to conclude that [appellee’s] claims have merit.”32

       We overrule Dr. Owens-Collins’s second issue. Because we conclude Dr. Rhine’s

report constitutes a good-faith effort to comply with the statutory requirements, we need

not address the adequacy of Dr. Sahn’s report.33

       32
            See id. at 879.

       33
            See T EX . R. A PP . P. 47.1.

                                               14
                                       C. Dr. Stobie

       In three issues, Dr. Stobie, a neonatologist, challenges: (1) Dr. Sahn’s expert report

on grounds that he lacks the qualifications to offer an expert opinion on the standard of

care or breach of the standard for a neonatologist; (2) Dr. Rhine’s expert report on grounds

that it collectively refers to the conduct of Dr. Stobie and other physicians; and (3) both

expert reports on grounds that they are “vague and conclusory as to breach of the standard

of care and proximate cause.”

       Appellee responds that because Dr. Sahn is a recognized expert in pleural

effusions—and the autopsy report confirms that Corina’s death was caused by pleural

effusions that resulted from the misplaced central line—Dr. Sahn is qualified to address

issues in the area of pleural effusions resulting from extravasation of central lines.

Appellee also contends that (1) Dr. Rhine’s report clearly identifies the standard of care

required of Dr. Stobie and the breaches of the standard by Dr. Stobie, and (2) both expert

reports constitute a good-faith effort to comply with the requirements for an expert report.

We begin with Dr. Stobie’s challenge to Dr. Sahn’s expert report.

                                   1. Dr. Sahn’s Report

                               a. Challenge to Qualifications

       As noted, Dr. Stobie contends that because Dr. Sahn is a pulmonologist, he is not

qualified to testify on the standard of care or breach of the standard of care applicable to

Dr. Stobie, a neonatologist.

       Only a physician who satisfies specific requirements may qualify as an expert

witness on the issue of whether another physician departed from accepted standards of




                                             15
medical care in a health care liability claim against that physician for injury to a patient.34

Section 74.401 provides that, to be qualified as an expert, one must be a physician who

       (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.35

“Practicing medicine” “includes, but is not limited to, training residents or students at an

accredited school of medicine or osteopathy or serving as a consulting physician to other

physicians who provide direct patient care, upon the request of such other physicians.”36

In determining whether an expert is qualified on the basis of training or experience,

       the court shall consider whether, at the time the claim arose or at the time
       the testimony is given, 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.37

To comply with section 74.401’s requirements, the proponent of the expert’s testimony has

the burden to show “that the expert has ‘knowledge, skill, experience, training, or

education’ regarding the specific issue before the court which would qualify the expert to




       34
            See T EX . P RAC . & R EM . C OD E A N N . §74.401 (Vernon 2005).

       35
            Id. § 74.401(a).

       36
            Id. § 74.401(b).

       37
            Id. § 74.401(c).

                                                         16
give an opinion on that particular subject.”38

        Dr. Sahn’s report reflects that he is a licensed physician with three board

certifications (internal medicine, pulmonary disease, and critical care medicine). Dr. Sahn’s

report states he is currently practicing medicine and that a major area of his research,

practice, and teaching from 1973 to the present is the “study of pleural effusions . . . and

other such pathologic sequelae of the placement of central venous catheters with resulting

violation of the pleural space.” Dr. Sahn states he has authored a “soon-to-be published

chapter entitled: [‘]Pleural Effusions of Extravascular Origin,[’] which includes a section on

extravascular migration of central venous catheters, such as happened to Infant Corina in

this case.” Dr. Sahn states he is qualified to serve as an expert in this case based on his

“education, training, experience, teaching and clinical supervision of medical students,

residents, and pulmonary fellows, and extensive research activity for the past twenty-five

years in the area of interest, identification, treatment, and preventive management of

pulmonary complications in critical care, including pleuropulmonary sequelae of central

venous catheters.”

        In his motion to dismiss, Dr. Stobie argued, among other things, that Dr. Sahn was

not qualified to opine on the standard of care applicable to a neonatologist. By denying the

motion to dismiss, the trial court rejected Dr. Stobie’s argument. As the supreme court

noted in Larson, “[t]he qualification of a witness as an expert is within the trial court's

discretion. We do not disturb the trial court's discretion absent clear abuse. ‘The test for



        38
           Broders v. Heise, 924 S.W .2d 148, 153-54 (Tex. 1996) (quoting Ponder v. Texarkana Mem'l Hosp.,
840 S.W .2d 476, 477-78 (Tex. App.–Houston [14th Dist.] 1991, writ denied)); see also T EX . R. E VID . 702
(providing for testim ony by expert witness qualified by “knowledge, skill, experience, training, or education”).



                                                      17
abuse of discretion is whether the trial court acted without reference to any guiding rules

or principles.’”39 The Larson court also stated that in a “close call,” the decision as to

whether expert testimony qualifies must go to the trial court.40 We hold that the trial court

did not abuse its discretion in finding Dr. Sahn qualified to opine as an expert in this case.

We overrule Dr. Stobie’s first issue. We turn to Dr. Stobie’s challenges to the adequacy

of Dr. Sahn’s expert report.

                                b. Challenge to Adequacy of Report

         Dr. Stobie contends Dr. Sahn’s report is “conclusory as to the elements of breach

of the standard of care and proximate cause.” Specifically, Dr. Stobie argues the report

is conclusory in stating that he failed to appropriately monitor Corina because it “fails to set

forth a time when or how this monitoring should have been done, what it would have

showed, and how the alleged failure to monitor the patient’s status proximately caused

injuries.” Dr. Stobie also complains that the report is conclusory in saying that he failed to

act promptly to assess and manage the cause of Corina’s respiratory decompensation.

Dr. Stobie states the report “fails to set forth a time when this assessment and

management should have been done, what it would have showed, why Dr. Stobie was

responsible for it, or how the alleged failure to do so proximately caused injuries in this

case.”

         Dr. Sahn’s report states, in pertinent part:



         39
              Larson v. Downing, 197 S.W .3d 303, 304-05 (Tex. 2006) (quoting Broders, 924 S.W .2d at 151).

         40
           Id. at 304; see also Baker v. Gomez, No. 08-06-00330-CV, 2008 Tex. App. LEXIS 531, at *10 (Tex.
App.–El Paso Jan. 24, 2008, pet. denied) (holding physician board certified in internal m edicine, pulm onary
m edicine, and critical care m edicine qualified to render an opinion based on his report detailing experience
in treatm ent of condition at issue).

                                                     18
Standard of care for Dr. Stobie:

The admitting neonatologist has primary responsibility for the care of the
patient. As such, the standard of care required that Dr. Stobie:

1. Assess the infant upon admission and review the plan of care.

2. Document the treatment plan for the patient.

3. Continue to monitor the patient’s progress in the NICU, making treatment
decisions appropriate to her clinical status at each interval.

4. Appropriately supervise the medical care being provided by the resident
physicians to the patients in the NICU admitted under his care, including
Infant Corina Gutierrez, so as to ensure that appropriate actions are followed
based on the patient’s clinical status.

5. Review and discuss the nursing notes and test results ordered for the
patient, including imaging reports, and provide appropriate medical treatment
based on the patient’s global clinical status, including information from tests
and chart entries.

Negligence for Dr. Stobie:

1. Dr. Stobie failed to appropriately monitor the patient’s clinical status so as
to be able to intervene in a timely manner to avoid a fatal outcome.

2. Dr. Stobie failed to act promptly to assess and effectively manage the
cause of the patient’s respiratory decompensation.

Proximate Cause by Dr. Stobie:

It is my expert opinion that Dr. Stobie’s failure to follow the standard of care,
as noted in the preceding sections, for the care required by a neonatologist
in the assessment and management of complications of a CVC were a
proximate cause of Infant Corina Gutierrez’s premature death as a direct
result of her acute respiratory failure and cardiac failure caused by the
bilateral effusions that were a foreseeable consequence of extravascular
migration of the CVC.

The admission and autopsy notes indicate that the only abnormality that
Infant Corina Gutierrez had was her gastroschisis and bowel atresia, which
Dr. Patel repaired. Having completed that repair, the baby should have
progressed through recovery to discharge home and her death was entirely
preventable. However, the leakage of TPN fluid through the malpositioned


                                       19
       central venous catheter into her pleural space, as a result of Dr. Stobie’[s]
       negligence, directly caused her acute respiratory failure and cardiac failure,
       and premature death.

       We conclude that Dr. Sahn’s report is sufficiently specific to (1) inform Dr.

Stobie of the specific conduct appellee has called into question, and (2) provide a

basis for the trial court to conclude that appellee’s claims have merit.41 We overrule

Dr. Stobie’s third issue. We hold the trial court did not abuse its discretion in

determining that Dr. Sahn’s report constitutes a good-faith effort to comply with the

statutory requirements for an expert report.42 Because we conclude Dr. Sahn’s

report constitutes a good-faith effort to comply with the statutory requirements, we

need not address the adequacy of Dr. Rhine’s report.43

                                            V. Conclusion

       We hold that the trial court did not abuse its discretion in denying the motions

to dismiss filed by appellants, Dr. Patel, Dr. Owens-Collins, and Dr. Stobie. We

affirm the trial court’s order denying appellants’ motions to dismiss.




                                                        LINDA REYNA YAÑEZ,
                                                        Justice



Memorandum Opinion delivered and filed
this the 30th day of October, 2008.



       41
            See Palacios, 46 S.W .3d at 879.

       42
            See id.

       43
            See T EX . R. A PP . P. 47.1.

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