                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00613-CV

                                   Gary P. LAWTON, M.D., FACS,
                                             Appellant

                                                    v.
                                                 Rachel
                                            Rachel JOAQUIN,
                                                Appellee

                      From the 407th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-16544
                            Honorable David A. Canales, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 26, 2014

REVERSED AND REMANDED

           Gary P. Lawton, M.D., appeals an order denying his motion to dismiss a health care liability

claim against him. We conclude the trial court abused its discretion when it denied Lawton’s

motion to dismiss, and therefore, reverse and remand.

                                             BACKGROUND

           On October 12, 2010, Lawton performed surgery—an abdominoplasty (“tummy tuck”) and

panniculectomy—on Rachel Joaquin. Joaquin subsequently filed a healthcare liability claim
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against Lawton, alleging she suffered from “fat necrosis” following the surgery. 1 Joaquin served

Lawton with an expert report prepared by Edward P. Melmed, M.D., a plastic surgeon, as required

by section 74.351 of the Texas Civil Practice and Remedies Code. Lawton objected to the

adequacy of the report. The trial court sustained these objections and gave Joaquin a thirty-day

extension to cure the deficiency. The expert prepared a supplemental report, which was timely

served on Lawton. Thereafter, Lawton filed objections to the supplemental report and moved to

dismiss Joaquin’s healthcare liability claim with prejudice. The trial court overruled Lawton’s

objections and denied the motion to dismiss. Lawton appealed. On appeal, Lawton seeks a reversal

of the trial court’s order denying the motion to dismiss, and a remand to the trial court for a

determination of statutory attorney’s fees.

                                         STANDARD OF REVIEW

        We review the trial court’s order denying a motion to dismiss a healthcare liability claim

for an abuse of discretion. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am.

Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court

abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985). The trial court’s clear failure to analyze or apply the law correctly will constitute an

abuse of discretion. Walker v Packer, 827 S.W.2d 833, 840 (Tex. 1992).

                                               DISCUSSION

        When presented with a motion to dismiss a healthcare liability claim, the trial court must

determine whether the expert report represents a good faith effort to comply with the statutory



1
 Necrosis is defined as “[t]he death of cells, tissues, or organs.” TABERS CYCLOPEDIC MEDICAL DICTIONARY 1549
(21st ed. 2009).


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definition of an expert report. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878; see also

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West Supp. 2013). The statute defines an expert

report 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 the applicable standards of care, the manner in which the care

rendered by the physician . . . 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) (West Supp. 2013).

       In evaluating an expert report, the trial court looks only to the information within the four

corners of the report and is prohibited from making any inferences. Wright, 79 S.W.3d at 52-53;

Palacios, 46 S.W.3d at 878. Although the expert report need not marshal all the plaintiff’s proof,

it must include the expert’s opinion on each of the three elements identified in the statute: standard

of care, breach, and causal relationship. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The

expert cannot merely state his conclusions about these elements in his report. Wright, 79 S.W.3d

at 52; Palacios, 46 S.W.3d at 879. The expert must explain the basis of his statements to link his

conclusions to the facts. Wright, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890

(Tex.1999)). To constitute a good-faith effort to comply with the statutory definition, the expert’s

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. Palacios, 46 S.W.3d at 879. “A report that merely

states the expert’s conclusions about the standard of care, breach, and causation cannot fulfill these

two purposes.” Id.

       On appeal, Lawton argues the trial court abused its discretion when it denied the motion to

dismiss. Lawton focuses on two of the three required statutory elements: breach and causal

relationship. According to Lawton, the expert’s supplemental report is deficient because it fails to
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set out (1) exactly what he did or failed to do that amounted to a failure to meet the applicable

standard of care, and (2) the causal relationship between that failure and the injury, harm, or

damages claimed by Joaquin. After reviewing both the initial expert report and the supplemental

expert report, we agree with Lawton.

       As previously mentioned, the trial court found the initial expert report to be deficient and,

consistent with Chapter 74, provided Joaquin an opportunity to cure the deficiency. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c) (West Supp. 2013). After the supplemental expert report

was filed, Lawton filed additional objections and moved to dismiss with prejudice. In reviewing

the trial court’s decision to deny the motion to dismiss, we consider both the initial and the

supplemental reports prepared by Dr. Melmed.

       In his initial report, Dr. Melmed stated his opinions were based on the operative reports

and progress notes. He stated he was very disturbed that Joaquin had to have hyperbaric oxygen

treatment the day after surgery. According to Dr. Melmed, this treatment indicated there was a

severe compromise in circulation immediately following Joaquin’s surgery. Dr. Melmed identified

two external factors that “can figure into” circulatory compromise, smoking and a metabolic

disease such as diabetes. Dr. Melmed then noted that Joaquin’s medical history showed that neither

external factor applied to her. At the report’s conclusion, Dr. Melmed stated: “I do not know what

caused the failure of the blood supply from reading the operative reports . . . . I can only surmise

that something must have occurred that was not recognized at the time of surgery, nor reflected in

the operative or immediate progress notes.”

       In his supplemental report, Dr. Melmed stated his opinions were based on post-operative

photographs and surgical records. According to Dr. Melmed, the post-operative photographs

showed “a devastating compromise in the blood supply to the abdominal wall, ending upon with

full thickness skin loss of a huge amount of skin,” but “the surgical records, as dictated, make no
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mention of any problems encountered during the procedure, or how the compromised circulation

occurred.” Dr. Melmed further stated: “The standard of care requires the surgeon to preserve a

sufficient blood supply to the abdominal wall” and “a deviation from the [s]tandard of [c]are

MUST have occurred during the performance of the abdominoplasty to have compromised the

blood supply to the extent that such a large tissue loss occurred.” In conclusion, Dr. Melmed stated

“the major skin and tissue loss was caused by a major compromise of [] vascularity that occurred

during the abdominoplasty.”

       Dr. Melmed’s reports identify one standard of care: the requirement that a surgeon preserve

a sufficient blood supply to the abdominal wall. However, neither report explains how a surgeon

goes about preserving a sufficient blood supply to the patient’s abdominal wall. And, neither report

explains how Lawton in particular failed to preserve a sufficient blood supply to Joaquin’s

abdominal wall.

       In defending the trial court’s ruling, Joaquin argues that Dr. Melmed adequately described

Lawton’s breach of the standard of care in his reports. She points out that Dr. Melmed’s reports

ruled out, based on Joaquin’s medical history, external factors that could have caused circulatory

failure, namely smoking and a metabolic disease such as diabetes. He also indicated the

photographic record showed “a devastating compromise in the blood supply to the abdominal

wall.” Based on this information, Dr. Melmed concluded “[t]he cause of the circulatory failure

must therefore have come from something that happened during surgery.” Citing these statements,

Joaquin asserts the reports adequately explained Lawton’s breach of the standard of care. We

disagree. Dr. Melmed’s reports fail to link the circulatory failure to any specific action on Lawton’s

part. Absent such specific information about Lawton’s conduct, Dr. Melmed’s opinion that “a

deviation from the [s]tandard of [c]are MUST have occurred” is conclusory and fails to establish

the required breach of the standard of care.
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       Joaquin also argues that Dr. Melmed was not required to explain how Lawton failed to

preserve a sufficient blood supply to the abdominal wall, citing Roark v. Allen, 633 S.W.2d 804,

809-10 (Tex. 1982). Again, we disagree. Roark addresses pleading requirements, not expert report

requirements, and thus has no application to the present case. See id.

       Dr. Melmed’s reports contained no specific information about how Lawton breached the

standard of care or about what he should have done differently. We, therefore, hold that the reports

failed to establish one of the required statutory elements: that Lawton breached the standard of

care. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (agreeing that expert reports were

deficient because they failed to address “how Dr. Jernigan breached the standard or how his

unstated breach of duty caused [the patient’s] death with sufficient specificity for the trial court,

and Jernigan, to determine that the allegations against him had any merit.”); Palacios, 46 S.W.3d

at 879 (“Whether a defendant breached his or her duty to a patient cannot be determined absent

specific information about what the defendant should have done differently.”); Longino v.

Crosswhite, 183 S.W.3d 913, 917 (Tex. App.—Texarkana 2006, no pet.) (concluding that an

expert report was deficient when it contained no specific information about how the defendant

breached the standard of care).

       Additionally, an expert’s report must address another statutory element: the causal

relationship between the breach and the injury, harm, or damages. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6). To establish a causal relationship in the present case, Dr. Melmed was

required to “explain the basis of his statements to link his conclusions to the facts.” See Wright, 79

S.W.3d at 52. Although Dr. Melmed concluded that the injury—“major skin and tissue loss”—

was caused by “a major compromise of [] vascularity that occurred during the abdominoplasty,”

there is no information in the reports linking this “major compromise of [] vascularity” to Lawton’s

conduct during Joaquin’s surgery. In fact, in the supplemental report, Dr. Melmed states that “the
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surgical records, as dictated, make no mention of any problems encountered during the procedure,

or how the compromised circulation occurred.” Therefore, Dr. Melmed’s reports fail to establish

yet another required statutory element: causation. Hutchinson v. Montemayor, 144 S.W.3d 614,

618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a

healthcare liability claim when the expert’s report did not set forth facts or explain the medical

basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor,

131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion

was conclusory and did not fulfill statutory causation requirements when it did not provide

information linking the doctor’s actions to the patient’s death).

       We conclude the information in Dr. Melmed’s reports (1) failed to inform Lawton of the

specific conduct called into question, and (2) failed to provide a basis for the trial court to conclude

that Joaquin’s claim had merit. Therefore, the trial court abused its discretion denying the motion

to dismiss.

                                            CONCLUSION

       We reverse the trial court’s order denying the motion to dismiss, and remand this case to

the trial court for (1) entry of an order granting the motion to dismiss with prejudice, and (2) other

proceedings consistent with our opinion.

                                                        Karen Angelini, Justice




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