                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-326-CV


RALPH PLEMONS, M.D.                                                APPELLANT

                                        V.

PATRICIA HARRIS, INDIVIDUALLY                                         APPELLEE
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF HARVEY
HARRIS, DECEASED

                                    ------------

           FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                 I. Introduction

      In one issue, Appellant Ralph Plemons, M.D. asserts that the trial court

abused its discretion by overruling his objections to Appellee Patricia Harris’s




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          … See Tex. R. App. P. 47.4.
chapter 74 expert report and also by denying Dr. Plemons’s motion to dismiss.

We affirm.

                      II. Factual and Procedural History

      On September 7, 2005, after performing an EKG on Harvey Harris, Dr.

Tracye Orr referred Harvey to a surgeon for repair of an umbilical hernia. On

October 21, 2005, Dr. Augustus Lyons, along with the anesthesiologist Dr.

Plemons, performed the surgery. Approximately twenty-four hours after the

surgery, Harvey returned to the hospital with chest pains.         He died the

following day from an apparent myocardial infarction, a.k.a. “heart attack.”

      Harris, Harvey’s surviving spouse, filed this suit on December 17, 2007,

alleging that Dr. Plemons failed to utilize appropriate anesthesia given Harvey’s

health. Pursuant to chapter 74 of the civil practice and remedies code, Harris

served a timely expert report from Dr. Joseph A. Stirt, an anesthesiologist from

Charlottesville, Virginia. He opined that Dr. Plemons breached the standard of

care by not obtaining a preoperative EKG within thirty days of a planned

surgical procedure as required for any patient over sixty years old who was to

receive general anesthesia. Dr. Stirt further stated that the deviations from the

standard of care represented negligence, which proximately caused Harvey’s

death.




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      On April 29, 2008, Dr. Plemons filed objections to Harris’s expert report,

and he amended those objections on May 6, 2008. Subsequently, the trial

court overruled Dr. Plemons’s objections, and this interlocutory appeal followed.

                            III. Preservation of Error

A. Review

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint

is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

The objecting party must get a ruling from the trial court. This ruling can be

either express or implied.      Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.

App.—Fort Worth 1999, pet. denied). If trial judge refuses to rule, an objection

to the refusal to rule is sufficient to preserve error. Tex. R. App. P. 33.1(a)(2).

Further, the complaint on appeal must be the same as that presented in the trial

court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate

court cannot reverse based on a complaint not raised in the trial court. Id.




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B. Analysis

      In “Defendant Ralph Plemons, M.D.’s Amended Objections to Plaintiff’s

Chapter 74 Expert Report and Motion to Dismiss,” Plemons asked the court to

dismiss Harris’s suit due to the inadequacy of Dr. Stirt’s report as follows:

             In his report Dr. Stirt suggests “one standard of care was
      breached by Dr. Ralph Plemons”. Dr. Stirt goes on to state, “a pre-
      operative EKG obtained within 30 days of a planned surgical
      procedure is required prior to general anesthesia for any patient
      over 60 years old. No EKG was performed on Mr. Harris and
      subsequently examined as required by Dr. Plemons.” See attached
      report of Dr. Stirt as Exhibit 2.
             Dr. Stirt’s sole criticism of Dr. Plemons was that no EKG was
      performed on Mr. Harris prior to the surgery and subsequently
      examined as required by Dr. Plemons. This sole criticism is entirely
      factually inaccurate. See attached as Exhibit 3, EKG dated
      September 7, 2005 performed and received prior to the procedure
      at issue. As such, this report is conclusory and does not represent
      a good faith effort to fulfill the statute as well as case law
      interpreting same. . . . The report of Dr. Stirt is conclusory and
      based upon assumptions which are not supported by the facts with
      respect to standard of care, breach and causation and accordingly
      fails to meet the requisites of Chapter 74 as well as case law
      interpreting same. [Emphasis added.]

      On appeal, Plemons argues thusly:

            It is significant to note that on the first page of Dr. Stirt’s
      report, he states that he had reviewed the records from Dr. Tracye
      Orr from September 7, 2005, through October 19, 2005. It is
      undisputed that Dr. Orr performed an EKG on Mr. Harris on
      September 7, 2005. After Dr. Orr obtained this EKG, he referred
      Mr. Harris for a surgical consult for the umbilical hernia, without
      requesting or seeking any type of further cardiac evaluation or
      follow-up.


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              Since Dr. Stirt reviewed Dr. Orr’s records, he would have had
      access to the EKG performed on September 7, 2005, yet
      conspicuously missing from his report is any mention or reference
      to any abnormalities in the September 7 EKG that would have
      caused the surgery to be cancelled; moreover, he does not identify,
      describe, or explain why an EKG done 14 days later (i.e., 30 days
      before surgery) would have been different or demonstrated some
      type of abnormality that would have resulted in the surgery being
      cancelled. To the contrary, Dr. Stirt only speculates that a pre-
      operative EKG “could well have shown marked cardiac abnormality
      . . .” Dr. Stirt is obviously speculating on what a second EKG could
      have shown; how it might have changed from the one obtained on
      September 7; whether it would have resulted in further cardiac
      follow-up; and whether it would have resulted in a deferral of the
      surgery. Dr. Stirt’s attempts at causation are conclusory and
      would require an inference on causation which, under the “four
      corners rule,” a court is not permitted to do. [Emphasis supplied;
      internal citations omitted.]

      A plain reading of Dr. Plemons’s argument to the trial court is that there

was the a factual inaccuracy in Dr. Stirt’s report, which Dr. Plemons asserted

caused the report to be conclusory in nature. This is plainly demonstrated

when he states that, referring to Dr. Stirt’s criticism that no presurgery EKG

was performed on Harvey, “[t]his sole criticism is entirely inaccurate . . . [a]s

such, this report is conclusory.”

      In contrast, on appeal, Dr. Plemons acknowledges that he is not arguing

factual inaccuracy.   Rather, a plain reading of Dr. Plemons’s argument on

appeal is that because there was an EKG performed forty-four days before the

surgery, Dr. Stirt’s report failed to show how a second EKG performed thirty


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days or less before the surgery would have resulted in a different surgical

outcome. Specifically, he argues that Dr. Stirt’s report only speculated that a

pre-operative EKG “could well have shown marked cardiac abnormalities” and

speculated “whether it would have resulted in the deferral of the surgery. Dr.

Stirt’s attempts at causation are conclusory and would require an inference on

causation . . . .”

      During oral argument to this court, counsel for Dr. Plemons attempted to

explain the lack of congruity between the arguments at trial and on appeal by

asserting that he only needed to urge that Dr. Stirt’s report was conclusory

without any explanation to the trial court of where, when, how, or why, and

that he had in his summation at the end of his amended motion stated that the

report was conclusory and factually unsupported, thereby disconnecting the

two thoughts. We observe that the only explanation given to the trial court of

how the report was conclusory was that it was factually inaccurate, as

previously discussed. We decline to hold that trial judges are required to adopt

the methods of Sherlock Holmes and divine without written or oral guidance as

to where, when, why, and how an expert’s report is conclusory. We therefore

hold that the complaint to the trial court does not comport with the complaint

on appeal and as such is not preserved for our review. See Banda, 955 S.W.2d

at 272; see also Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40 (Tex.

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App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a

party’s argument on appeal must comport with its argument in the trial court.”),

cert. denied, 549 U.S. 1052 (2006); Hoxie Implement Co., Inc. v. Baker, 65

S.W.3d 140, 151 (Tex. App.—Amarillo 2001, pet. denied) (“[G]iven that the

contention before us does not comport with the objection raised below, that

before us was and is waived.”).

                                IV. Conclusion

      Having found that Dr. Plemons’s complaint on appeal has not been

preserved, we overrule his sole issue on appeal and affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).

LIVINGSTON, J. concurs without opinion.

DELIVERED: January 8, 2009




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