                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00122-CV


Clinton Brunson, M.D.                      §     From the 48th District Court

                                           §     of Tarrant County (48-253022-11)
v.
                                           §     January 17, 2013

Ellvan Johnston                            §     Opinion by Justice Gardner



                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s order. It is ordered that the order of the trial

court is affirmed.

      It is further ordered that appellant Clinton Brunson, M.D. shall pay all costs

of this appeal, for which let execution issue.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Anne Gardner
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00122-CV


CLINTON BRUNSON, M.D.                                               APPELLANT

                                        V.

ELLVAN JOHNSTON                                                       APPELLEE


                                     ----------

          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

      In this interlocutory appeal,2 Appellant Clinton Brunson, M.D. contends that

the trial court abused its discretion by denying his motion to dismiss the

healthcare liability claim filed against him by Appellee Ellvan Johnston.     Dr.

Brunson asserts in one issue that the expert report by Dr. Gary Lustgarten does
      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012).


                                         2
not establish Dr. Lustgarten‘s qualifications to address the applicable standard of

care or breach of the standard of care and that the expert reports by Dr.

Lustgarten and Dr. Philip Shalen do not adequately set forth the required element

of proximate cause. We affirm.

                                 II. Background

      Johnston filed this lawsuit against Dr. Brunson and three other defendants

in May 2011. Johnston alleged in his original petition that he was admitted to

Presbyterian Hospital of Rockwall on June 8, 2009. The next day, Johnston

could not move his left leg. Although Johnston was later able to move his leg, he

underwent an MRI on June 9, and Dr. Brunson carried out and interpreted the

MRI scan and dictated a report. In the report, Dr. Brunson did not identify any

abnormalities in Johnston‘s spinal cord.

      Dr. Michael Musacchio, a neurosurgeon, evaluated Johnston on June 11

because of Johnston‘s report of pain in his right hip and tail bone and difficulty in

moving his leg. Dr. Musacchio also reviewed the June 9 MRI scan and likewise

found no abnormalities, but he recommended that Johnston be evaluated by a

pain management doctor. Dr. Amit Darnule evaluated Johnston on June 12 but

also did not identify abnormalities on Johnston‘s June 9 MRI scan.

      On June 13, Johnston exhibited escalating neurologic injuries in both lower

extremities. He was unable to move either of his legs by June 14. Dr. Ahmed

Elsehety was consulted and ―identified findings suggestive of damage to

[Johnston‘s] spinal cord at L1‖ and ―abnormalities between T9 and the top of L1.‖


                                           3
Johnston was transferred to the University of Texas Southwest Zale Lipshy

Hospital on June 18 and underwent surgery on June 19. At the time of surgery,

―there was a spinal cord intradural hematoma from T9 to L2.‖ Johnston alleged

that Dr. Brunson was negligent by failing ―to reasonably identify abnormalities in

the MRI scan of June 9, 2009 in the L1 T12 region of the spinal cord‖ and by

failing to ―provide reasonable treatment for those abnormalities.‖

      Johnston served an expert report and curriculum vitae by Dr. Lustgarten

along with his original petition, and he subsequently served expert reports by

Neal H. Blauzvern, D.O. and Philip R. Shalen, M.D. Dr. Brunson filed objections

to the reports by Drs. Lustgarten and Shalen.        The trial court overruled Dr.

Brunson‘s objections after a hearing, and this interlocutory appeal followed.

             III. Standard of Review and Statutory Requirements

      A trial court‘s ruling concerning an expert report under civil practice and

remedies code section 74.351 is reviewable under the abuse of discretion

standard. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011); Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). To determine

whether a trial court abused its discretion, we must decide whether the trial court

acted without reference to any guiding rules or principles; in other words, we

must decide whether the act was arbitrary or unreasonable. Cire v. Cummings,

134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude that a

trial court abused its discretion merely because the appellate court would have


                                         4
ruled differently in the same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I.

du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

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

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

& Rem. Code Ann. § 74.351(a). A defendant may challenge the adequacy of a

report by filing a motion to dismiss, and the trial court must grant the motion to

dismiss if it finds after a hearing that ―the report does not represent an objective

good faith effort to comply with the definition of an expert report‖ in the statute.

Id. § 74.351(l). While the expert report ―need not marshal all [of] the plaintiff‘s

proof,‖ Palacios, 46 S.W.3d at 878 (construing former article 4590i, § 13.01), it

must provide a fair summary of the expert‘s opinions as to the ―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).

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

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

of the conduct the plaintiff has called into question and (2) to provide the trial

court with a basis to conclude that the claims have merit. See Bowie Mem’l, 79

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

requirement if it merely states the expert‘s conclusions or if it omits any of the

statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at


                                         5
879.   But the information in the report ―does not have to meet the same

requirements as the evidence offered in a summary-judgment proceeding or at

trial.‖ Palacios, 46 S.W.3d at 879.

       When reviewing the adequacy of a report, the only information relevant to

the inquiry is the information contained within the four corners of the document.

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

precludes a court from filling gaps in a report by drawing inferences or guessing

as to what the expert likely meant or intended. See Austin Heart, P.A. v. Webb,

228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).            However, section

74.351 does not prohibit experts, as opposed to courts, from making inferences

based on medical history.     Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL

2579824, at *4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem.

op.); see also Tex. R. Evid. 703 (providing that an expert may draw inferences

from the facts or data in a particular case); Tex. R. Evid. 705 (providing that an

expert may testify in terms of opinions and inferences).

                            IV. Expert Qualifications

       Dr. Brunson argues in the first part of his sole issue that Dr. Lustgarten‘s

expert report and attached CV do not establish his qualifications to address the

applicable standard of care or breach of the standard of care.

       To be qualified, an expert must satisfy the requirements of section 74.401.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A). Under section 74.401,

the expert must be a physician who:


                                         6
            (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.

Id. § 74.401(a) (West 2011).

      Dr. Lustgarten‘s expert report contains the following:

             My qualifications to render opinions as an expert witness . . .
      in this case are set out on my CV which [is] attached. In pertinent
      part I am a board certified neurological surgeon. I graduated from
      State University of Iowa College of Medicine in 1965. I served my
      internship at the New York Hospital/Cornell Medical Center in New
      York City in 1965 through 1966. I was flight surgeon for the United
      States Air [F]orce between 1966 and 1968. In 1968 I was accepted
      as a neurosurgical resident at the University of Miami-Jackson
      Memorial Hospital School of Medicine, Miami, Florida. I completed
      my residency in 1973 and I‘ve been in private practice of
      neurosurgery since 1976.        I have been Board Certified [i]n
      neurological surgeries since 1976.

            ....

             As a neurosurgeon through my training, experience and
      education I have been thoroughly exposed to neuroradiology as it
      pertains to interpretation of lumbar MRI scans of the type performed
      on Mr. Johnston in this case on June 9, 2009. . . . Interpretation of a
      lumbar spine MRI is a skill that both a radiologist and a
      neurosurgeon are expected to be able to perform with competence
      and accuracy to the degree with which is necessary to identify the
      lesion at the T-12 through L-1 region as identified on this scan.

            As such, I am qualified to express an opinion as to whether or
      not Dr. Brunson met the standard of care in interpretation of the film
      performed on Mr. Johnston on June 9, 2009. I am familiar with the
      standard of care for Dr. Brunson and the circumstances because
      both radiologist[s] like Dr. Brunson and neurosurgeons like myself


                                         7
      have the responsibility to accurately and competently interpret films
      of this type.

      In addition to listing various honors and awards that Dr. Lustgarten has

received, his CV states that he has been licensed in Florida from ―1970 –

Present,‖ that he has been licensed in Maine from ―2000 – Present,‖ and that he

has served as a ―Florida Worker‘s Compensation Certified Physician Expert

Medical Advisor (Examiner) – ‗EMA‘‖ from ―08/05/95 – Present.‖ The CV also

states that Dr. Lustgarten is or was a ―Senior Attending‖ at Jackson North

Medical Center, but the CV does not include a date-range or clarify whether that

is a position Dr. Lustgarten held in either 2009 or 2011.

      Dr. Brunson contends that Dr. Lustgarten is not qualified to offer opinions

as to the standard of care and breach of the standard of care because his expert

report and CV do not establish on their face that he ―was actively practicing

medicine in rendering medical care services relevant to [Johnston]‘s claim, either

at the time the claim arose [in 2009], or at the time he rendered the opinion in his

report [in 2011].‖   Dr. Brunson further argues that although Dr. Lustgarten‘s

report states that he has ―been in [the] private practice of neurosurgery since

1976,‖ the only employment listed during 2009 or 2011 is ―Expert Medical

Advisor.‖ Dr. Brunson argues that other statements in Dr. Lustgarten‘s report are

conclusory and are therefore insufficient to establish his qualifications. In his

reply brief, Dr. Brunson asserts that the statements that Dr. Lustgarten ―has

been‖ board certified in neurological surgeries and in the ―private practice of



                                         8
neurosurgery‖ since 1976 and that Dr. Lustgarten has been licensed in Florida

from 1970 to the present and Maine from 2000 to the present do not establish

that Dr. Lustgarten was actively practicing medicine in 2009 or 2011.

      We decline to read Dr. Lustgarten‘s CV and report so narrowly.          Dr.

Lustgarten‘s report and CV expressly provide that he serves as a Florida

Worker‘s Compensation Certified Physician Expert Medical Advisor and that he

has been licensed, board certified, and in the private practice of neurosurgery

from 1976 to the present. As to whether Dr. Lustgarten, a neurosurgeon, is

qualified to address the standard of care and alleged breach by Dr. Brunson, a

radiologist, Dr. Lustgarten‘s report provides that he has been ―thoroughly

exposed‖ to neuroradiology through his years of practice and that the

interpretation of an MRI scan like that involved in this case is common to both

neurosurgery and radiology. We hold that, considered together in their entirety,

Dr. Lustgarten‘s report and CV establish his qualifications to render opinions in

this case as to the applicable standard of care and alleged breach of the

standard of care by Dr. Brunson. See Tex. Civ. Prac. & Rem. Code Ann. §

74.401(a)(1) (expert must be ―practicing medicine‖ at time of testimony or at time

claim arose); see also Moore v. Gatica, 269 S.W.3d 134, 140–41 (Tex. App.—

Fort Worth 2008, pet. denied) (stating that certain standards of medical care

―apply to multiple schools of practice and any medical doctor‖ and that a

physician of another school of practice may be ―competent to testify if he has

practical knowledge of what is usually and customarily done by a practitioner


                                        9
under circumstances similar to those confronting the defendant‖). We overrule

this part of Dr. Brunson‘s sole issue.

                               V. Proximate Cause

      In the remainder of his sole issue, Dr. Brunson contends that the expert

reports by ―Drs. Lustgarten and Shalen, taken together or separately, are legally

insufficient‖ because they include only conclusory and speculative statements of

proximate causation.

      The purpose of the expert report requirement is to inform the defendant of

the specific conduct the plaintiff has called into question and to provide a basis

for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at

879. A report that merely states the expert‘s conclusions about causation does

not fulfill these purposes. Id. Rather, the expert must explain the basis of his

statements to link his conclusions to the facts. Bowie Mem’l, 79 S.W.3d at 52.

      A plaintiff may meet the requirements of chapter 74 through multiple

reports. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i). A single report need not

―address all liability and causation issues with respect to all physicians or health

care providers or with respect to both liability and causation issues for a

physician or health care provider.‖      Id.   But read together, the reports must

provide a ―fair summary‖ of the experts‘ opinions. Id. § 74.351(r)(6); Barber v.

Mercer, 303 S.W.3d 786, 791 (Tex. App.—Fort Worth 2009, no pet.).

      Relevant to proximate cause, Dr. Lustgarten‘s report states as follows:




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On June 9, 2009[,] Dr. Brunson breached the standard of care when
he interpreted this film but failed to identify the lesion at T-12 and L-
1. Dr. Brunson further failed to meet the standard of care in fa[i]ling
to identify the lesion, recommend follow-up imaging including MRI
scans of the thoracic and lumbar spine with and without contrast and
to make recommendation and/or direct referral to a neurosurgeon to
address the lesion. It would have been acceptable in these
circumstances to either contact the patient‘s admitting physician or if
that could not be accomplished immediately arranging emergency
consultation with a neurosurgeon for evaluation for surgery for
removal of and/or exploration of the lumbar and thoracic spine.

It is well understood and documented in medicine that emergency
decompression of the spine must be accomplished within 12 hours
of the onset of symptom. If emergency decompression of the spine
is performed on those patients who have hematoma in their spinal
canal within the first 12 hours of symptoms more likely than not such
decompression will result in restoration of neurologic function and
stabilization of the patient to such a degree that they will no longer
be paraplegic.

. . . Mr. Johnston‘s case records demonstrate that after the episode
in which he was experiencing loss of neurologic function to the left
leg he had an episode of almost complete resolution. It was not until
June 12, 2009 that he suffered findings consistent with paraplegia
that became permanent. If Dr. Brunson had met the standard of
care then Mr. Johnston would have undergone emergency
decompression of the spine prior to the onset of permanent
paraplegia three days later on June 12, 2009.

Stated another way, the evolution of Mr. Johnston‘s symptoms
created a circumstance whereby if Dr. Brunson had met the
standard of care appropriate surgical intervention could have been
performed prior to the onset of the catastrophic damages that
occurred with new onset of symptoms on June 12, 2009. . . . This
would have afforded Mr. Johnston with an opportunity for definitive
surgical correction of his problem and resolution of the mass on his
spinal cord before it ever reached the point of causing bilateral lower
extremity paralysis and paraplegia.

Dr. Shalen‘s report includes the following:




                                   11
      It is my opinion, based on a reasonable degree of medical certainty
      that Dr. Brunson failed to meet the reasonable, prudent and
      accepted standards of medical care for a radiologist in the diagnosis,
      care and treatment of Mr. El[l]van Johnston by failing to identify an
      obvious conus medullaris region abnormality visible o[n] the MRI of
      June 9, 2009. Compression of the conus was evident. Conus
      compression was most likely secondary to a hematoma. This failure
      to diagnose a conus abnormality deviates from the standard of care.
      To comply with the standard of care Dr. Brunson should have:
      (1) carefully reviewed the images of the MRI that showed the conus
      medullaris region abnormality; (2) identified those abnormalities and
      (3) dictated a report describing those abnormalities. This would
      have allowed a timely recognition of the pathology in Mr. Johnston‘s
      spine.

      Within reasonable         probability, this deviation caused an
      unreasonable delay in     the clinical diagnosis and intervention of his
      neurological condition.    The delay allowed his symptoms to increase
      to the point of causing   permanent neurological injury by ischemia to
      the spinal cord.

      Considered together, the Dr. Lustgarten and Dr. Shalen reports provide

that, more likely than not, a patient undergoing emergency decompression of the

spine within twelve hours of the onset of symptoms would have neurologic

function restored and would no longer be paraplegic; that Johnston showed signs

of permanent paraplegia on June 12, three days after Dr. Brunson performed and

interpreted the MRI scan; that Dr. Brunson‘s failure to recognize the spinal

condition and recommend or obtain further evaluation or surgical intervention

permitted Johnston‘s condition to worsen ―to the point of causing permanent

neurological injury‖; and that the delay deprived Johnston of the ―opportunity for

definitive surgical correction of his problem and resolution of the mass on his

spinal cord‖ before it led to paraplegia. In short, the expert reports provide that



                                         12
had Dr. Brunson recognized the spinal abnormality, Johnston would have

undergone spinal decompression and had his neurologic function restored but

that Johnston did not receive the proper treatment for three days, a time at which

his neurologic injury had become permanent.

      Dr. Brunson argues that Dr. Lustgarten‘s and Dr. Shalen‘s causation

opinions merely ―provide insight‖ into what caused Johnston‘s paralysis but that

they do not link Dr. Brunson‘s alleged breach of the standard of care to

Johnston‘s injuries through specific facts. He further argues that the reports are

lacking because the experts leave room to speculate as to whether there would

have been time to recognize the pathology of Johnston‘s spine, whether the

other two physicians who evaluated Johnston would have agreed that surgery

should go forward, whether Johnston would have in fact undergone surgery, and

whether the surgery would have successfully prevented permanent paraplegia.

These complaints relate, however, to inferences that expert witnesses are

permitted to make. See Benish v. Grottie, 281 S.W.3d 184, 195 (Tex. App.—Fort

Worth 2009, pet. denied) (contrasting experts‘ ability to make inferences from

facts with prohibition against courts making inferences to determine if statutory

expert reports establish that claims have merit) (citing Tex. R. Evid. 703, 705);

see also Weatherford Tex. Hosp. Co. v. Riley, No. 02-10-00453-CV, 2011 WL

2518920, at *4 (Tex. App.—Fort Worth June 23, 2011, no pet.) (mem. op.)

(holding causation opinion in expert report sufficient because expert was




                                       13
permitted to infer that physician would have performed cesarean section had

nurses discussed issues with the physician).

      Rather than attempting to create a list of hypothetical scenarios not

addressed within the expert reports, the questions we must answer are whether

the Dr. Lustgarten and Dr. Shalen reports provide a fair summary of the causal

relationship between Dr. Brunson‘s alleged failure to meet the standard of care

and Johnston‘s injuries and whether the reports adequately inform Dr. Brunson of

the specific conduct Johnston has called into question. In that regard, the reports

at issue in this case are similar to the report held to be adequate in Eikenhorst v.

Wellbrock, No. 01-07-00459-CV, 2008 WL 2339735, at *2–3, 9–11 (Tex. App.—

Houston [1st Dist.] June 5, 2008, no pet.) (mem. op.). There, the expert opined

that Dr. Eikenhorst‘s failure to properly diagnose the injury and communicate his

CT scan findings caused a delay in treatment and aggravation of the patient‘s

injuries. Id. at *9. The court held that the expert‘s report ―did not only state that a

delay in diagnosis caused permanent injuries; it linked Eikenhorst‘s specific

conduct to a delay in diagnosis, leading to increased and prolonged spinal

pressure, resulting in [the patient]‘s permanent impairment.‖ Id. at *10. In this

case, the reports assert that Dr. Brunson failed to recognize the spinal

abnormality and failed to arrange further evaluation or surgical intervention for

Johnston, the result of which was a delay in treatment that led to permanent

paralysis. The reports, while not lengthy, provide sufficient information and are




                                          14
not so conclusory or speculative that they fail to satisfy Johnston‘s statutory

obligations.

         We hold that the reports by Dr. Lustgarten and Dr. Shalen gave the trial

court a sufficient basis to reasonably conclude that Johnston‘s claims have merit

and advised Dr. Brunson of the conduct Johnston has called into question. See

Palacios, 46 S.W.3d at 875. We overrule the remainder of Dr. Brunson‘s sole

issue.

                                    VI. Conclusion

         Having overruled Dr. Brunson‘s sole issue, we affirm the trial court‘s order.




                                                      ANNE GARDNER
                                                      JUSTICE

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

DELIVERED: January 17, 2013




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