                                      NO. 12-19-00149-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

 EDUARDO TANHUI, M.D. AND                              §       APPEAL FROM THE 145TH
 EAST TEXAS MEDICAL
 SPECIALTIES, P.A.,
 APPELLANTS
                                                       §       JUDICIAL DISTRICT COURT
 V.

 MINNIE RHODES-MADISON,
 APPELLEE                                              §       NACOGDOCHES COUNTY, TEXAS

                                      MEMORANDUM OPINION
       In this healthcare liability suit brought by Minnie Rhodes-Madison against Eduardo
Tanhui, M.D. and East Texas Medical Specialties, P.A., Appellants challenge the trial court’s
denial of their motion to dismiss pursuant to Section 74.351 of the Texas Medical Liability Act. 1
In two issues, Appellants contend that Rhodes-Madison’s expert is not qualified, and his report
does not comply with the statutory requirements. We affirm.


                                              BACKGROUND
       Rhodes-Madison, who had a history of lower back pain and leg pain, was a patient of Dr.
Tanhui from 2012 through early 2016. He diagnosed her with lumbar spinal stenosis and
radiculopathy and treated her with injections of the lumbar spine. On February 2, 2016, Dr. Tanhui
attempted, unsuccessfully, to implant a spinal cord stimulator. After the attempted procedure,
Rhodes-Madison experienced severe left leg pain and weakness, causing difficulty walking. In
contrast to her condition before the attempted procedure, after the attempt she can no longer
independently perform the activities of daily living. She underwent spinal surgery, performed by
a different doctor, on April 25, 2016.

       1   See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2017).
        Rhodes-Madison sued Dr. Tanhui and East Texas Medical Specialties, P.A. for negligence,
seeking damages and exemplary damages caused by the February 2, 2016 attempted procedure.
She alleged that Dr. Tanhui failed to order appropriate preoperative imaging, failed to immediately
terminate the procedure upon encountering the very tight epidural space, repeatedly attempted to
implant the spinal cord stimulator although her anatomy rendered her unsuitable for the device,
attempted to perform a procedure for which he lacked the requisite skill, and caused injury and
permanent disability. She alleged that East Texas Medical Specialties, P.A. is vicariously liable
for Dr. Tanhui’s breach of the duty of care.
        As required by Section 74.351(a), Rhodes-Madison furnished the expert report and
curriculum vitae of her expert, Dr. Miguel de la Garza. Appellants objected to the report and
requested dismissal of the case. The trial court sustained the objections, but declined to dismiss,
instead allowing Rhodes-Madison thirty days to amend her report. Rhodes-Madison filed a
supplemental expert report, and Appellants filed renewed objections to the expert report, again
seeking dismissal of the case. The trial court denied the renewed objections. Appellants appealed
the ruling. 2


                                           EXPERT REPORT
        In their first issue, Appellants contend that Dr. de la Garza’s report is deficient because it
does not meet the statute’s causation requirement. They argue that the report contains no factual
explanation of how and why it can be said that Dr. Tanhui’s negligence caused the surgery to fail.
In their second issue, Appellants assert that Dr. de la Garza is not qualified to submit an expert
report in this case because he has never performed back surgery.
Standard of Review
        We review a trial court’s decision to grant or deny a motion to dismiss based on the
adequacy of a Section 74.351 expert report for an abuse of discretion. Abshire v. Christus Health
Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). In analyzing a report’s sufficiency under
this standard, we consider only the information contained within the four corners of the report. Id.
A trial court abuses its discretion if it acts without reference to guiding rules or principles. Van
Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015).


        2
         See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2018); Lewis v. Funderburk, 253
S.W.3d 204, 207-08 (Tex. 2008).


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Applicable Law
       The Texas Medical Liability Act requires a health care claimant to furnish a written expert
report early in the proceedings summarizing the applicable standards of care and explaining how
the provider’s alleged negligence caused the claimant’s injury. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(a), (r)(6). The purpose of the expert report requirement is to weed out frivolous
malpractice claims in the early stages of litigation. Abshire, 563 S.W.3d at 223. The Act provides
a mechanism for dismissal of the claimant’s suit in the event of an untimely or deficient report.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b), (l).
       The proponent of an expert report has the burden to show that the expert is qualified.
Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). A person may qualify as an expert witness
on the issue of whether a physician departed from accepted standards of care if the witness is 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. TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a). To
determine whether a witness is qualified on the basis of training or experience, we consider
whether the witness is (1) board certified or has other substantial training or experience in an area
of medical practice relevant to the claim; and (2) actively practicing medicine in rendering medical
care services relevant to the claim. Id. § 74.401(c). A person may qualify as an expert witness on
the issue of the causal relationship between the alleged departure from accepted standards of care
and the injury claimed only if the person is a physician and is otherwise qualified to render opinions
on that causal relationship under the Texas Rules of Evidence. Id. § 74.403(a). The offered report
must demonstrate that the expert has knowledge, skill, experience, training, or education regarding
the specific issue before the court which would qualify the expert to give an opinion on that
particular subject. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003).
       An expert report is sufficient under the Act if it provides a fair summary of the expert’s
opinions regarding applicable standards of care, the manner in which the care rendered failed to
meet the standards, and the causal relationship between the failure and the injury. TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351(r)(6). The trial court need only find that the report constitutes a good
faith effort to comply with the statutory requirements.        Id. § 74.351(l).    An expert report



                                                  3
demonstrates a good faith effort to establish the causal relationship element when it (1) informs
the defendant of the specific conduct called into question and (2) provides a basis for the trial court
to conclude the claims have merit. Abshire, 563 S.W.3d at 223. A report need not marshal all the
claimant’s proof, but a report that merely states the expert’s conclusions about the standard of care,
breach, and causation is insufficient. Id. The expert must explain the basis of his statements to
link his conclusions to the facts. Id. at 224.
       In medical malpractice cases, plaintiffs are required to adduce evidence of a reasonable
medical probability or reasonable probability that their injuries were caused by the negligence of
one or more defendants, meaning that it is more likely than not that the ultimate harm or condition
resulted from such negligence. Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex. 2010). The expert
must explain, based on facts set out in the report, how and why the breach of the standard of care
caused the injury. Id. at 539-40. In doing so, the expert report must make a good-faith effort to
explain, factually, how proximate cause is going to be proven. Columbia Valley Healthcare Sys.,
L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). Proximate cause has two components: (1)
foreseeability and (2) cause-in-fact. Id. For a negligent act or omission to have been a cause-in-
fact of the harm, the act or omission must have been a substantial factor in bringing about the harm,
and absent the act or omission—i.e. but for the act or omission—the harm would not have
occurred. Id. The expert report must explain this causal relationship between the breach and
injury to satisfy the Act. Id. When a party’s alleged health care liability is purely vicarious, a
report that adequately implicates the actions of that party’s agents or employees is sufficient.
Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008) (per curiam).
Analysis
       Appellants contend that the injury complained of in this suit is Rhodes-Madison’s
condition following the April surgery, claiming that “[u]ltimately, Dr. de la Garza opines that Dr.
Tanhui caused the bad outcome of the April 2016 spine surgery.” They assert that the direct cause
of the injuries complained of was the April 25, 2016 surgery.
       Appellants further argue that the expert “reports are missing a factual explanation of how
and why it can be said that Dr. Tanhui’s negligence caused the April 25, 2016 surgery to fail.”
They assert that Dr. Tanhui speculates where and how an injury might have occurred without
definitively committing to a specific injury at a specific location, and without providing a
discussion of the specific facts as seen in the patient’s body. Asserting that his “causation opinion



                                                  4
merges together at the April 25, 2016 surgery,” they argue that Dr. de la Garza provides no factual
discussion “to draw a line from the alleged breaches of the standard of care to what was seen in
the patient’s body in the April 25, 2016 surgery.”
       We disagree with Appellants’ characterization of the claims in the case. Dr. Tanhui
attempted to perform a procedure on Rhodes-Madison on February 2, 2016. In her petition,
Rhodes-Madison asserts that Dr. Tanhui’s negligence injured her on February 2, 2016. She did
not assert in her petition that Dr. Tanhui committed negligence on April 25, 2016. As we explain
below, Dr. de la Garza’s expert report supports the claims asserted in the petition. For purposes
of our review, Appellants’ focus on Rhodes-Madison’s post-surgery condition is misplaced. Any
discussion of potential damages caused by the surgery is irrelevant to the question before us.
       Qualifications
       Appellants are not disputing that Dr. de la Garza is a “well-qualified-and-credentialed pain
management physician.” They argue that the spine surgery aspect of this case is dominant and
controls the qualifications needed by Dr. de la Garza. They assert that he is not a surgeon, not
qualified to speak to what would have happened in the spine surgery, and therefore, not qualified
to speak to causation in this case. However, because Rhodes-Madison is complaining about Dr.
Tanhui’s actions on February 2, 2016, during which he attempted a procedure to help manage
Rhodes-Madison’s back pain, we focus on whether Dr. de la Garza is qualified to provide expert
testimony on that subject.
       Dr. de la Garza completed his anesthesia residency in 2005 and an interventional pain
medicine fellowship in 2006. He is board certified in anesthesiology and pain medicine. He is a
member of and active in numerous organizations in his professional field. He has authored
numerous publications and lectured on the topics of anesthesia, interventional pain medicine, and
addiction. In his practice, he performs interventional pain procedures, specializing in minimally
invasive surgical decompression and/or fusion of herniated discs and spinal stenosis, implantable
intrathecal pumps, spinal cord stimulation, and peripheral nerve stimulation. He has experience
in and knowledge of pain management, anesthesia medicine, and care of patients suffering from
the exact medical conditions as Rhodes-Madison. He routinely treats such patients and knows the
applicable standard of care.
       Dr. de la Garza’s curriculum vitae and reports show that he is board certified in pain
management, a medical practice area relevant to this case. See TEX. CIV. PRAC. & REM. CODE



                                                5
ANN. § 74.401(c). He actively practices medicine involving rendering medical care services of
the same type involved in the claim and has knowledge of the accepted standards of care applicable
to pain management of patients experiencing spinal pain. See id. § 74.401(a). Dr. de la Garza has
education, training, knowledge, skill, and experience in treating patients with the same conditions
as Rhodes-Madison, including experience performing spinal cord stimulation implantation,
qualifying him to give an expert opinion on the subject of spine-related pain management. See
Roberts, 111 S.W.3d at 121. We overrule Appellants’ second issue.
       Causation
       Dr. de la Garza reviewed Rhodes-Madison’s medical records. In January 2014, she was
diagnosed by MRI with mild to moderate spinal stenosis at specified vertebrae in the thoracic and
lumbar regions, and severe lumbar spinal canal stenosis at specified vertebrae. Dr. de la Garza
stated that the spinal cord stenosis present at all vertebral levels where Dr. Tanhui was to place the
spinal cord stimulator leads was likely to prevent satisfactory placement. Therefore, Rhodes-
Madison was not a suitable candidate for percutaneous spinal cord stimulator placement, and Dr.
Tanhui’s attempt to perform the procedure was a breach of the standard of care.
       In his supplemental report, Dr. de la Garza clarified how Dr. Tanhui caused the injury
during the attempt to place the spinal cord stimulator. He stated:


                         Dr. Tanhui physically injured Ms. Rhodes-Madison’s thoracic and
               lumbar spinal nerves, including her cauda equina nerves that innervate the lumbar
               and sacral myotomes and dermatomes of the low back and legs, while attempting
               to insert a Tuohy needle and/or the spinal cord stimulator leads into the lumbar
               and/or thoracic epidural space during the spinal cord stimulator trial. . . .
               Regarding the mechanism of the actual injury to the nerves, more likely than not,
               Dr. Tanhui’s repeated attempts to insert the needle into Ms. Rhodes-Madison’s
               extremely tight lumbar and thoracic epidural space either compressed or
               physically traumatized the nerve fibers of the dorsal columns of the spinal cord or
               the nerve roots in the cauda equina causing immediate increased pain and loss of
               function. In effect, the needle and/or the spinal cord stimulator lead compressed
               the nerves within the very tight bony spinal canal where there was already little
               room for anything else. Thus, forcing the needle and/or spinal cord stimulator
               lead displaced the nerve fibers, crushing such fibers or shearing them during
               placement of the needle and/or spinal cord stimulator lead in the spinal canal
               where there was no excess room. Essentially, Dr. Tanhui created a ‘space
               occupying lesion’ that caused permanent nerve damage to Ms. Rhodes-Madison.

               ...

               It is noted that prior to the attempted SCS placement by Dr. Tanhui, Ms. Rhodes-
               Madison was independent for all activities of daily living (“ADLs”). However,
               following the attempted SCS placement, she consistently exhibited pain and




                                                       6
               weakness that impaired her to the point that she required assistance with ADLs,
               either by using a walker or wheel chair. Thus, as she has not substantially
               improved from her condition following Dr. Tanhui’s attempted placement of the
               SCS, it is apparent that the injury suffered at his hands was a cause of Ms. Rhodes-
               Madison[’s] permanent disability.



       Dr. de la Garza stated that Dr. Tanhui’s attempt to place the spinal cord stimulator caused
Rhodes-Madison to suffer permanent neurologic injury, including severe lower extremity
weakness and loss of function.
       Dr. de la Garza opined that Dr. Tanhui also breached the standard of care by not sending
Rhodes-Madison to a spine surgeon for evaluation and treatment either when he first received the
results of her January 6, 2014 MRI or promptly after the February 2016 attempted spinal cord
stimulator placement. He noted that Rhodes-Madison had longstanding, persistent, symptomatic
critical lumbar central canal stenosis, and her condition was resistant to Dr. Tanhui’s treatments
over several years. Dr. de la Garza explained that when Dr. Tanhui’s prior lumbar epidural steroid
injections and other interventional treatments failed to provide substantial sustained relief, in light
of the January 2014 MRI findings, and since Rhodes-Madison’s back and leg pain continued to
worsen, Dr. Tanhui should have referred her to a spine surgeon for evaluation and treatment instead
of attempting to place spinal cord stimulator leads.
       In his supplemental report Dr. de la Garza elaborated as follows:


                          Had Dr. Tanhui complied with the standard of care required of a
               physician treating a patient such as Ms. Rhodes-Madison and referred her to a
               spine surgeon for evaluation and treatment rather than trying to force the
               placement of the SCS leads, these physical neurologic injuries would not have
               occurred. It is important to note that this was an elective procedure. If the
               evaluation by the surgeon lead (sic) to a lumbar decompression of the spinal
               stenosis, a spinal cord stimulator trial could have been placed if her pain persisted,
               but with the added safety of a decompression that would have allowed a safer SCS
               placement attempt.



       Dr. de la Garza opined that, had Dr. Tanhui met the standard of care and referred Rhodes-
Madison to a spine surgeon instead of attempting placement of the spinal cord stimulator, she
likely would not have suffered the permanent injury and permanent disability as a result of loss of
function.




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       Further, after the attempted procedure, Rhodes-Madison suffered an exacerbation of
lumbar spinal stenosis, coupled with a progression and/or new neurologic injury characterized by
lower extremity weakness, worsened pain, and loss of ambulatory function. Dr. de la Garza
explained that these signs and symptoms are indications of nerve injury and need to be promptly
evaluated by a spine surgeon. Once Dr. Tanhui became aware that the attempt had injured Rhodes-
Madison he should have promptly referred her to a spine surgeon. Dr. de la Garza opined that
urgent decompression of the lumbar and/or thoracic canal stenosis would “in all likelihood” have
improved her long-term function with ADLs and may have improved her leg and/or back pain.
Therefore, according to Dr. de la Garza, Dr. Tanhui’s failure to provide adequate and appropriate
follow-up care following the attempt to place the spinal cord stimulator leads, that is, his failure to
recognize the need, and to immediately arrange for Rhodes-Madison to be seen by a spine surgeon,
breached the standard of care.
       Dr. de la Garza identified the standard of care—placing spinal cord stimulator leads in
patients who are suitable candidates and doing so without physically traumatizing the nerve fibers
or roots. The standard of care also requires a referral to a spine surgeon when a patient who has
severe stenosis has not responded to prior treatments and when the doctor becomes aware that his
attempt to place spinal cord stimulator leads caused damage to the patient. Dr. de la Garza made
a good faith effort to establish the causal relationship element by explaining how Dr. Tanhui’s act
of repeatedly inserting the needle in the small space compressed, physically traumatized, and
displaced the nerve fibers, crushing or shearing them. Dr. de la Garza linked the worsened
condition that Rhodes-Madison experienced after the attempted procedure to Dr. Tanhui’s breach
of the standard of care to show that his actions caused her injuries. Further, had Dr. Tanhui sent
Rhodes-Madison to a surgeon instead of attempting to place the spinal cord stimulator, he would
not have caused nerve damage. And referring her to a surgeon immediately after his attempt, “in
all likelihood,” would have led to improvement in her condition. His failure to do so caused her
to miss that opportunity for improvement.
       We conclude that Dr. de la Garza’s reports constitute a good faith effort to comply with
the statutory requirements and provide a basis for the trial court to conclude Rhodes-Madison’s
claims have merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Abshire, 563 S.W.3d at
223; Gardner, 274 S.W.3d at 671-72. Therefore, the trial court did not abuse its discretion in




                                                  8
overruling Appellants’ objections to the expert reports and denying their motion to dismiss. We
overrule Appellants’ first issue.


                                                  DISPOSITION

         Because Appellants have shown no abuse of discretion, we affirm the trial court’s order
denying Appellants’ motion to dismiss.

                                                                GREG NEELEY
                                                                   Justice



Opinion delivered September 18, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



                                                          9
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 18, 2019


                                         NO. 12-19-00149-CV


                             EDUARDO TANHUI, M.D. AND
                        EAST TEXAS MEDICAL SPECIALTIES, P.A.,
                                      Appellants
                                         V.
                              MINNIE RHODES-MADISON,
                                       Appellee


                                Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. C1833683)

                    THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the trial
court’s order.
                    It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against
Appellants, EDUARDO TANHUI, M.D. and EAST TEXAS MEDICAL SPECIALITES,
P.A., for which execution may issue, and that this decision be certified to the court below for
observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
