      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00419-CV



                          Richard Hebert and Janet Hebert, Appellants

                                                   v.

                  Timothy E. Hopkins, M.D., and Shannon Clinic, Appellees


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
      NO. D-10-0285-C, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                                DISSENTING OPINION


                Because I believe the expert report in this case represents a good-faith effort to

comply with the statutory definition of an expert report, I respectfully dissent.

                The three significant Texas Supreme Court opinions that address the issue of

determining the adequacy of an expert report are American Transitional Care Centers of Texas, Inc.

v. Palacios, 46 S.W.3d 873 (Tex. 2001); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48

(Tex. 2002); and Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010). Together, those three cases describe

and clarify the standards by which courts are to evaluate an expert report. Because those standards

are appropriately set forth in the majority opinion, I will not repeat them all. But it is crucial to

remember that all that is necessary to avoid dismissal is that the report represent a “good faith effort”

to comply with the statutory definition of an expert report, which in turn requires only that the report

provide “a fair summary of the expert’s opinions” regarding standard of care, breach, and causation.

Most important, the supreme court has defined “good faith effort” as “one that provides information
sufficient to (1) ‘inform the defendant of the specific conduct the plaintiff has called into question,’

and (2) ‘provide a basis for the trial court to conclude that the claims have merit.’” Jelinek,

328 S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52). I believe the report in the present case easily

meets that test.

                   The first prong of the good-faith test is that the report must “inform the defendant

of the specific conduct the plaintiff has called into question.” In this regard, the expert report in

this case could not be clearer: the standard of care requires that a spinal fracture complicated by pre-

existing ankylosing spondylitis must be treated by posterior internal fixation, either alone or

in combination with anterior internal fixation, not by anterior fixation alone, as was done by

the defendant physician here. By my count, the medical expert’s report contains no less than

nine separate statements and/or explanations of this requirement, four in his original report and

five more in his supplemental report.


        ! “Anterior instrumentation only is predictably inadequate in a fracture pattern with
        gross anterior and posterior column instability such as Mr. Hebert’s. Adequate treatment of
        Mr. Herbert’s fracture requires anterior and posterior instrumentation in order to meet the
        standard of care.”

        ! “Dr. Timothy Hopkins’ choice of anterior only plate/screw fixation fails to meet the
        applicable standard of care.”

        ! “In the absence of adequate posterior stability, anterior plate/screw constructs typically
        fail in flexion by plate breakage or, as in this case, by screw pullout. . . . Anterior only
        plate/screw fixation, in this setting, is predictably doomed to failure.”

        ! “The standard of care for the surgical treatment of this fracture requires a multilevel
        posterior fixation and a fusion in conjunction with anterior fixation and fusion with or
        without supplemental external fixation . . . .”




                                                    2
       ! “Dr. Hopkins performed an anterior (front) only plate and screw fixation. . . . The
       standards of care governing a prudent surgeon require that he not perform anterior only
       fixation with plate and screws . . . .”

       ! “The standards of care governing a prudent surgeon require that he perform a multilevel
       posterior instrumented fusion alone or in conjunction with an anterior instrumented fusion
       . . . .”

       ! “My opinion is that Dr. Hopkins breached the standard of care by performing a multi-level
       anterior only fusion and fixation with plate/screws without also performing a multi-level
       posterior fusion and fixation with instrumentation.”

       ! “The factual basis for this opinion is that a prudent surgeon following the standards of care
       would not have performed an anterior only fusion with instrumentation to attempt to stabilize
       this very unstable fracture but would have performed an anterior instrumented fusion with
       plates/screws and a multilevel posterior instrumented fusion or a multilevel posterior
       instrumented fusion alone.”

       ! “[P]erforming an anterior only fusion with instrumentation without also performing the
       posterior fusion and fixation was a breach of the standard of care because the standards of
       care require performing both procedures to adequately stabilize the very unstable fracture and
       anterior only surgery was doomed to fail . . . .”


There can be no doubt what conduct is being called into question.

               The second prong of the supreme court’s good-faith definition is that the report must

“provide a basis for the trial court to conclude that the claims have merit.” Here, the expert report

goes into great detail in explaining the standard of care, why the actions of the defendant physician

constituted a breach of the standard, and “how and why the breach caused the injury based on the

facts presented.” Jelinek, 328 S.W.3d at 539-40. The report does not contain mere conclusions of

the expert. Quite the contrary. As to causation, for example, the report explains at length the process

by which the breach of the standard of care resulted in the plaintiff’s paralysis:


       My opinion is that performing an anterior only fusion with instrumentation without
       also performing a multilevel posterior instrumented fusion caused permanent and

                                                  3
       irreversible spinal cord injury when the screw predictably pulled out in the post
       perioperative period. . . . When the screw pulled out of the vertebral segments of C-6
       and C-7, the C-5 vertebral body was allowed to move on C-6 resulting in cord
       compression. The screw predictably failed because the anterior only approach was
       insufficient in the absence of inherent or surgically created posterior element
       stability, to stabilize the fracture and resist deformation due to flexion forces. When
       the screws failed, the vertebral segments moved resulting in cord compression. As
       a result, Mr. Hebert is now a quadraparetic, meaning he is nearly completely
       paralyzed from the chest down. If, instead of the anterior only surgery, Dr. Hopkins
       had performed an anterior and posterior instrumented fusion, like Dr. Duarte did on
       9/12/08, it is highly probable the anterior implants would not have failed as they did,
       the resulting cord compression would have been avoided and Mr. Hebert would not
       have sustained his spinal cord injury and paralysis.


               In the face of the expert report’s highly detailed explanation of all of the elements

required by Palacios, Wright, and Jelinek, the majority holds that a single sentence from the original

report was so “internally inconsistent” as to the applicable standard of care that all of the report’s

detailed explanations and opinions were vitiated:


       If the clinical situation in which the surgeon finds himself and the patient allows
       only inadequate internal fixation, the surgeon is obligated to protect the patient
       supplementing the internal fixation with external bracing and/or activity limitations.


There are several things to note about this sentence. First, it does not say that anterior only internal

fixation could ever meet the standard of care in treating a patient with the conditions existing here.

Indeed, the sentence does not explicitly reference anterior internal fixation at all. It is simply a

general reference to a hypothetical situation in which “inadequate internal fixation” is, temporarily,

the only available option under some presumably extraordinary circumstances. Second, whatever

the general references to “clinical situation” and “inadequate internal fixation” mean, the report

goes on to specify that the defendant breached the standard of care in this case, as to this patient.


                                                   4
This is an implicit statement that, to the best of the expert’s knowledge, there were no

extraordinary circumstances in this case. Third, and perhaps most important, the possible existence

of extraordinary circumstances that might—or might not—justify the defendant physician’s

temporary use of anterior only internal fixation is a matter to be fleshed out during discovery and

possibly trial, not as part of a gatekeeper effort to deter frivolous lawsuits. This is especially true in

light of the fact that the medical records available to the expert in preparing his report may not

have reflected whether any such extraordinary circumstances existed at the time of the surgery.1 To

require a report to negate possible defenses at this stage of the litigation creates an extra-statutory

burden and is unfair to both the plaintiff and the medical expert.

                I believe the expert report in this case constituted a good-faith effort to comply with

the definition of an expert report, as required by the applicable statutes and supreme court precedent.

Accordingly, I respectfully dissent.



                                                _____________________________________________

                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Filed: March 1, 2013



        1
            Medical issues, like legal ones, are seldom black and white. One can imagine a
hypothetical conversation between a plaintiff’s attorney and the plaintiff’s medical expert, in which
the expert says something like, “In the overwhelming majority of cases like this, the standard of care
is X. But I have to be candid: in a very small percentage of such cases, extraordinary circumstances
may call for a different treatment approach. Nothing in the medical records I have seen indicates that
such extraordinary circumstances existed in this case, but I would not be completely honest if I did
not at least mention that possibility.”

                                                    5
