




02-07-005-CV



























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
                                                 NO.
2-07-005-CV
 
 
WENDY COLLINI, M.D.                                                                      APPELLANT
 
                                                             V.
 
MARTHA PUSTEJOVSKY                                                                    APPELLEE
 
                                                       ------------
 
               FROM THE 48TH
DISTRICT COURT OF TARRANT COUNTY
 
                                                       ------------
 
                                         OPINION ON REMAND
 
                                                       ------------




Appellant
Wendy Collini, M.D. appeals the trial court=s
denial of her motion to dismiss the health care liability claim of appellee
Martha Pustejovsky.  We originally dismissed this interlocutory appeal for want
of jurisdiction.  Collini v. Pustejovsky, 253 S.W.3d 292, 294 (Tex. App.CFort
Worth 2007), rev=d,
253 S.W.3d 216 (Tex. 2008).  Because the Texas Supreme Court has held that we
have jurisdiction, we now consider the appeal on the merits.  Collini,
253 S.W.3d at 216.  In one issue, appellant contends that the trial court
abused its discretion in denying her motion to dismiss by concluding that the
expert report served upon her satisfied the requirements of the civil practice
and remedies code.  See Tex. Civ. Prac. & Rem. Code Ann. '
74.351 (Vernon Supp. 2008).  We reverse and remand.
Background
Facts
In
June 2006, Martha Pustejovsky asserted a health care liability claim against
Wendy Collini, M.D.  Her original petition alleged that in 2002, another doctor
prescribed Reglan to her and that Dr. Collini continued this prescription for
three years.  Pustejovsky claimed that the prolonged prescription and use of
Reglan caused her to develop tardive dyskinesia.[1] 
She asserted that Dr. Collini was negligent and grossly negligent because Dr.
Collini failed to inform her of the known dangers associated with Reglan and
failed to adequately monitor the proper prescription of the drug and her
condition while using it.  Pustejovsky=s
petition sought actual and punitive damages related to her alleged physical
pain, suffering, and impairment along with further damages for mental anguish. 
In July 2006, Dr. Collini filed her original answer, generally denying
Pustejovsky=s allegations.
In
September 2006, in accordance with section 74.351, Pustejovsky served on Dr.
Collini an expert report prepared by Paul Haberer, D.O.  Dr. Haberer=s
report indicates that he is a practicing physician, that he has been licensed
in Texas since 1976, and that he has been board certified in family practice
since 1989.  It then recites that he has personal knowledge of the standard of
care for primary care and family medicine physicians and that he has reviewed
Pustejovsky=s medical records that he has acquired
from various sources.
The
report then alleges the following facts.  A physician originally prescribed
Reglan to Pustejovsky in 2002 to assist with abdominal and gastroesophageal
issues, and Dr. Collini continued the prescription for almost three years.  In
December 2004, Pustejovsky began suffering from sleep disturbances and
restlessness, and she also had tremors in her right hand.[2] 
Dr. Collini ended the Reglan prescription in January 2005.  As the Reglan left
Pustejovsky=s system, the effects of its overuse
were unmasked, and by the next month, she was diagnosed by Asher Imam, D.O.
with Auncontrolled
oral buccal dyskinesia.@  Over the next several
months, two other doctors diagnosed Pustejovsky with tardive dyskinesia.
Dr.
Haberer=s
report then relates that because tardive dyskinesia is a known risk of taking
Reglan, as has been disclosed by the drug=s
manufacturer, the standard of care requires that a prescription for the drug
must be limited to no more than twelve weeks and that those taking the drug
should be closely monitored for symptoms of any moving disorder.  The report
also asserts that when Pustejovsky=s
hand tremors began, Dr. Collini should have tapered off Reglan, sought a
substitute medication, and scheduled Pustejovsky for a neurological
consultation.
Dr.
Haberer also submitted his curriculum vitae with the report.  The vitae
indicates that Dr. Haberer is currently on an emergency room staff at a
hospital in Eastland, Texas and that he has served in such a capacity at fourteen
hospitals over the last thirty years.  It further relates (among other things)
that he received a bachelor=s degree in the field of
pharmacy, that he attended a four-year pharmacy specialist course in the early
1960s while he was in the air force, and that he was an associate professor of
medicine at the Texas College of Osteopathic Medicine from 1976 to 1988.




In
October 2006, Dr. Collini filed a motion to dismiss Pustejovsky=s
claim with prejudice, contending that she failed to make a good faith effort to
serve an adequate expert report as required by section 74.351.  Specifically,
Dr. Collini argued that (1) Dr. Haberer did not qualify himself as an expert on
liability and causation because his report failed to explain that he had any
familiarity with prescribing Reglan or any experience in assessing the causal
relationship between Reglan and tardive dyskinesia and (2) Dr. Haberer=s
report addressed causation only through conclusory statements.[3] 
After Pustejovsky filed a response to Dr. Collini=s
motion, Dr. Collini filed a reply.  The reply incorporated Dr. Collini=s
complete medical file on Pustejovsky, spanning more than seven hundred pages,
in an attempt to discredit the factual information and resulting conclusions
contained in Dr. Haberer=s report.
On
December 18, 2006, the trial court held a hearing on Dr. Collini=s
motion to dismiss.  After Dr. Collini=s
counsel briefly argued the motion, the trial court denied it.  Dr. Collini
timely perfected this interlocutory appeal.
The
Sufficiency of Dr. Haberer=s
Report
In
her sole issue, Dr. Collini contends that the trial court abused its discretion
by refusing to dismiss Pustejovsky=s
claim because Dr. Haberer=s report fails to
demonstrate his expert qualifications through experience with Reglan or the causal
relationship between that drug and tardive dyskinesia and also fails to provide
a specific factual explanation of such a causal relationship.
Texas
courts agree that review of a trial court=s
denial of a motion to dismiss under section 74.351 is subject to an abuse of
discretion standard.  See, e.g., Am. Transitional Care Ctrs. of Tex., Inc.
v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); San Jacinto Methodist Hosp.
v. Bennett, 256 S.W.3d 806, 811 (Tex. App.CHouston
[14th Dist.] 2008, no pet.); Moore v. Gatica, 269 S.W.3d 134, 139 (Tex.
App.CFort
Worth 2008, pet. filed) (op. on remand).  Also, a trial court=s
decision on whether a physician is qualified to offer an expert opinion in a
health care liability claim is reviewed under an abuse of discretion standard. 
Moore, 269 S.W.3d at 139.
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.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B 42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).  Merely because a trial
court may decide a matter within its discretion in a different manner than an
appellate court would in a similar circumstance does not demonstrate that an
abuse of discretion has occurred.  Id.  A trial court does not abuse its
discretion if it commits a mere error in judgment.  See E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
In a
health care liability claim, a claimant must serve an expert report (that
addresses liability and causation) on each defendant no later than the 120th
day after the claim is filed.  Tex. Civ. Prac. & Rem. Code Ann. '
74.351(a), (j).  If an expert report has not been served on a defendant within
the 120‑day period, then on the motion of the affected defendant, the
trial court must dismiss the claim with prejudice and award the defendant
reasonable attorney=s fees and costs.  Id.
' 74.351(b).
A
report Ahas
not been served@ under the statute when it
has physically been served but it is found deficient by the trial court.  Lewis
v. Funderburk, 253 S.W.3d 204, 207B08
(Tex. 2008).  When no report has been served because the report that was served
was found to be deficient, the trial court has discretion to grant one
thirty-day extension to allow the claimant to cure the deficiency.  Tex. Civ.
Prac. & Rem. Code Ann. ' 74.351(c).




A
report is deficient (therefore subjecting a claim to dismissal) when it Adoes
not represent an objective good faith effort to comply with the [statute=s]
definition of an expert report.@  Id. '
74.351(l); see Richburg v. Wolf, 48 S.W.3d 375, 377 (Tex. App.CEastland
2001, pet. denied) (adding that it is the defendant=s
burden to demonstrate that the good faith standard has not been satisfied). 
While the expert report Aneed not marshal all the
plaintiff=s proof,@ 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); Palacios, 46 S.W.3d at 875, 878.




To qualify
as a good faith effort, the report must Adiscuss
the standard of care, breach, and causation with sufficient specificity to
inform the defendant of the 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 875.  A report does not fulfill this requirement if it merely
states the expert=s conclusions or if it omits
any of the statutory requirements.  Id. at 879.  The information in the
report Adoes
not have to meet the same requirements as the evidence offered in a summary‑judgment
proceeding or at trial.@  Id.  When reviewing
the adequacy of a report, the only information relevant to our inquiry is the
information contained within the four corners of the document.  Id. at
878; see Bowie Mem=l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).[4] 
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.CAustin
2007, no pet.) (citing Bowie Mem=l
Hosp., 79 S.W.3d at 52).
An
expert report concerning standards of care for physicians Aauthored
by a person who is not qualified to testify . . . cannot constitute an adequate
report.@  In
re Windisch, 138 S.W.3d 507, 511 (Tex. App.CAmarillo
2004, no pet.); see Ehrlich v. Miles, 144 S.W.3d 620, 624B25
(Tex. App.CFort Worth 2004, pet. denied).  To be an
Aexpert@ on
the departure from a physician=s standard of care (therefore
qualifying the submission of an expert report), a person must be a physician
who




(1)
is practicing medicine at the time such testimony is given or was practicing
medicine at the time the claim arose;[5]
(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. ' 74.351(5)(A),
'
74.401(a) (Vernon 2005).  In determining the third element of this standard,
courts must consider whether the physician who completed the report (1) is
board certified or has other substantial training or experience in an area of
medical practice relevant to the claim and (2) is actively practicing medicine
in rendering medical care services relevant to the claim.  Id. '
74.401(c).  In other words,
there is no validity,
if there ever was, to the notion that every licensed medical doctor should be
automatically qualified to testify as an expert on every medical question . . .
. [T]he proponent of the testimony has the burden to show that the expert
possesses special knowledge as to the very matter on which he proposes to give
an opinion.”




Ehrlich,
144 S.W.3d at 625 (quoting Broders v. Heise, 924 S.W.2d 148, 152B53
(Tex. 1996)).  For this reason, the offered report must generally demonstrate
that the expert has Aknowledge, 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.@  Id.
(quoting Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003)).
However,
there are certain standards of medical care that apply to multiple schools of
practice and any medical doctor.  See McKowen v. Ragston, 263 S.W.3d
157, 165 (Tex. App.CHouston [1st Dist.] 2007, no
pet.); Blan v. Ali, 7 S.W.3d 741, 745B46
(Tex. App.CHouston [14th Dist.] 1999, no pet.). 
Therefore, a physician Awho is not of the same
school of medicine [as the defendant] is competent [to submit a report] if he
has practical knowledge of what is usually and customarily done by a
practitioner under circumstances similar to those confronting the defendant.@  Ehrlich,
144 S.W.3d at 625; see Marling v. Maillard, 826 S.W.2d 735, 740 (Tex.
App.CHouston
[14th Dist.] 1992, no writ).
Dr.
Haberer=s Expert Qualifications
Dr.
Collini contends that Dr. Haberer failed to qualify himself as an expert
because his report does not demonstrate any expertise or experience in
prescribing Reglan or diagnosing or treating drug-induced tardive dyskinesia. 
Pustejovsky asserts that Dr. Haberer was not required to address his experience
with Reglan or tardive dyskinesia because the specific issue in this case
concerns a physician=s duty to comply with a drug
manufacturer=s expressed instructions and warnings,
which is a common standard known by all physicians.
Was Dr. Haberer=s Report Required to
Demonstrate His Knowledge of and Experience Related to the Accepted Standards
of Medical Care Specifically Concerning the Prescription of Reglan?
 
Dr.
Collini first contends that because Dr. Haberer=s
current area of practice is emergency medicine, he cannot address the standard
of care that applies to her, because she is an internist.  However, the proper
inquiry in assessing Dr. Haberer=s
qualifications to submit an expert report is not his area of practice, but his
familiarity with the issues involved in the claim before the court.  See
Blan, 7 S.W.3d at 745.
Next,
Dr. Collini asserts that Dr. Haberer=s
report is insufficient to establish his qualifications because it does not
establish that he has any specific experience Aregarding
the prescription of Reglan.@  To establish his
qualifications, Dr. Haberer was required to demonstrate experience with the
specific issues raised by Pustejovsky=s
claim.  See Ehrlich, 144 S.W.3d at 625.
Pustejovsky's
original petition indicated that the specific factual issue she was raising in
her claim concerned the lengthy, ongoing prescription of Reglan.  Dr. Haberer's
report describes that
[t]he standard of
care pertaining to Reglan is to limit the time prescribed to no more than 12
weeks and the lowest dose needed to provide therapeutic relief.  For
gastrointestinal problems, Reglan's manufacturer specifies that this drug
should be prescribed for no more than 4B12 weeks and this is the standard of care
applicable to this case.  Tardive dyskinesia (TD) is a known complication of
metoclopramide, which is also disclosed by Reglan's manufacturer.
 







There
are minimum, general standards of prescribing medication that are common to all
physicians and all schools of practice.  See Patel v. Williams ex rel.
Estate of Mitchell, 237 S.W.3d 901, 905 (Tex. App.CHouston
[14th Dist.] 2007, no pet.) (approving of an expert report=s
explanation of the breach of the standard of care for prescribing Risperdal
because its use for treating dementia had not been approved by the FDA and
concluding that a Areasonable physician should
not, as a general proposition, prescribe the wrong drug for his patients@); Puempel
v. Lopez, No. 05‑07‑00371‑CV, 2007 WL 3173405, at *3B4
(Tex. App.CDallas Oct. 31, 2007, no pet.) (mem.
op.) (affirming the use of FDA and PDR guidelines to define the standard of
care for prescribing weight loss medication); Metot v. Danielson, 780
S.W.2d 283, 286B87 (Tex. App.CTyler
1989, writ denied), overruled on other grounds by Cecil v. Smith, 790
S.W.2d 709, 716 (Tex. App.CTyler 1990) (op. on reh=g), rev=d,
804 S.W.2d 509 (Tex. 1991) (holding that the trial court abused its discretion
when it decided that a board-certified doctor was not qualified to testify
about a neurosurgeon=s Ageneral
minimum standards@ for the prescription of
drugs that are Aapplicable to all physicians@). 
Dr. Haberer=s report indicates that he certainly has
experience with the general standards related to prescribing medications.  For
instance, it demonstrates that he is board certified in family practice, that
he has Apersonal
knowledge of the standard of care applicable to . . . family medicine,@
that he has experience in practicing in hospitals and in family practice, and
that, as explained above, his undergraduate degree and post-graduate employment
and research activities concerned pharmaceutical matters.  Based on this
experience, his report demonstrates his qualifications to opine on the duties
to follow a manufacturer=s instructions about the
length of time a drug should be prescribed, heed warnings specifically given by
the manufacturer related to that drug, and monitor a patient=s
conditions that may be connected to those warnings.  Because Dr. Haberer=s
report indicates that he had knowledge of the accepted standards of medical
care related to prescribing medication and acting on such medication=s
related instructions and warnings and that he has experience and training in
doing so, we conclude that he was qualified to submit a report establishing Dr.
Collini=s
standards of care in this case.[6]
 See Tex. Civ. Prac. & Rem. Code Ann. '
74.401(a)(2), (3).
Was Dr. Haberer=s Report Required to
Demonstrate His Knowledge of and Experience Related to the Causal Relationship
of Reglan with Tardive Dyskinesia?
 







Next,
Dr. Collini asserts that Dr. Haberer has not qualified himself as an expert on
causation because he has not recited experience or expertise in the diagnosis
and treatment of drug-induced tardive dyskinesia.  Along with the standards of
care and a description of a physician=s
inability to satisfy those standards, an expert report served under section 74.351
must address the causal relationship to the damages the plaintiff has claimed. 
Id. ' 74.351(j), (r)(6).  A physician is
qualified to submit an expert report on the causal relationship between a
departure from a standard of care and an injury when he would otherwise be
qualified to address causation under rule 702 of the Texas rules of evidence.  Id.
'
74.351(r)(5)(C); see Tex. R. Evid. 702;[7]
Thomas v. Alford, 230 S.W.3d 853, 857 (Tex. App.CHouston
[14th Dist.] 2007, no pet.).  The party offering the witness as an expert on
causation must establish that the witness is qualified to testify under rule
702.  Mem=l Hermann Healthcare
Sys. v. Burrell, 230 S.W.3d 755, 762B63
(Tex. App.CHouston [14th Dist.] 2007, no pet.)
(deciding that a doctor was qualified to opine about causation because his
report demonstrated direct experience with treating decubitus ulcers, which was
the condition at issue).  To be so qualified, Aan
expert must have knowledge, skill, experience, training, or education regarding
the specific issue before the court that would qualify the expert to give an
opinion on that particular subject.@  Thomas,
230 S.W.3d at 857, 860 (citing Broders, 924 S.W.2d at 153) (holding
that because the doctor who submitted an expert report did not demonstrate
knowledge of cancer treatment, he was not qualified to offer an opinion that an
earlier diagnosis could have produced a better outcome for the plaintiff). 
Further, to justify the submission of an opinion under the rules of evidence,
the proponent of the opinion must show that the opinion is reliable.  See
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006).
While
Dr. Haberer=s curriculum vitae does establish a
background in pharmaceutical matters, his report does not indicate that he has
any specific knowledge, experience, education, or training in assessing the
causal relationship between the prolonged use of Reglan and tardive
dyskinesia.  In fact, his report does not state that he has any experience or
training regarding Reglan or tardive dyskinesia at all; rather, it only
generally states that he has knowledge applicable to Aprimary
care and family medicine.@  The report does not
indicate that the diagnosis of tardive dyskinesia resulting from prolonged
Reglan use is a matter that is developed in various fields to the extent that
any physician would be qualified to report about it.  Dr. Haberer, therefore,
has not demonstrated his qualifications, under the standards set forth above,
to support his attempt to causally link the alleged breach of Dr. Collini=s
duty to follow manufacturer=s instructions and warnings
to Pustejovsky=s deteriorating condition starting in
December 2004.
Pustejovsky
contends that Dr. Haberer=s qualifications to assess
causation may be established by the facts that Reglan=s
manufacturer disclosed tardive dyskinesia as a known complication and that the
report details that three physicians diagnosed her with dyskinesia related to
her Reglan use.  Courts have held that in addressing causation, a reporting
physician may rely on the opinions of other individuals who have rendered
reports or diagnoses.  See Kelly v. Rendon, 255 S.W.3d 665, 676 (Tex.
App.CHouston
[14th Dist.] 2008, no pet.) (noting that Anothing
in the health care liability statute prohibits an otherwise qualified physician
from relying on [another opinion] in the formation of the physician=s
own opinion@); Cresthaven Nursing Residence v.
Freeman, 134 S.W.3d 214, 234 (Tex. App.CAmarillo
2003, no pet.) (holding that a testifying physician properly relied, in part, on
the opinions of other doctors in establishing causation); see also Tex.
R. Evid. 703 (stating that an expert can base an opinion on reasonably reliable
data).  However, in both Kelly and Freeman, the reporting
physicians also demonstrated their own qualifications related to their specific
experience with conditions involved in those claims.  See Kelly, 255
S.W.3d at 673B75; Freeman, 134 S.W.3d at 232. 
Also, while Dr. Haberer=s report briefly states the
conclusions of the three physicians who examined Pustejovsky, it does not
provide any background on the experience or training of those physicians that
would signal to the trial court that those opinions were reliable.  See
Tex. R. Evid. 703 (requiring reasonable reliance in the formation of an expert
opinion); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728
(Tex. 1998) (noting that a trial court must determine whether the analysis used
to reach an expert=s conclusions is reliable).




Finally,
Dr. Haberer=s report contains several statements regarding
Reglan or tardive dyskinesia that are unrelated to either the other physicians=
opinions or the manufacturer=s instructions and
warnings.  For instance, Dr. Haberer states that Reglan can Ahelp
mask the symptoms of dyskinesia@ and that the Arisk
of [tardive dyskinesia] is greater in women, the elderly,[8]
and increases with duration of use.@  As
demonstrated, while Dr. Haberer may be well qualified to make these assertions,
the four corners of his report simply do not provide any details regarding such
qualifications.
We
hold that Dr. Haberer has not adequately demonstrated his qualifications to
submit an expert report on the issue of causation; therefore, his report is
deficient and does not comply with section 74.351.  See Tex. Civ. Prac.
& Rem. Code Ann. ' 74.351(l), (r)(5)B(6);
Palacios, 46 S.W.3d at 877; Windisch, 138 S.W.3d at 511 (noting
that a report authored by an unqualified doctor cannot be adequate). 
Therefore, Dr. Haberer=s report is insufficient; we
sustain Dr. Collini=s sole issue.  We now turn
to the issue of causation to provide the trial court with guidance on the
retrial of this issue should the trial court grant Pustejovsky an extension.  See
Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997).
The
Adequacy of Dr. Haberer=s
Causation Explanation




Finally,
Dr. Collini asserts that apart from the issues regarding qualifications, Dr.
Haberer=s
report contains an insufficient explanation of the causal relationship between
Dr. Collini=s prescriptions of Reglan and
Pustejovsky=s conditions.  As we have described, an
expert report must provide a fair summary of the expert=s
opinions on the causal relationship of a breach from a standard of care to the
harm claimed in the case, with enough specificity to allow the trial court to
conclude that the plaintiff=s claims have merit.  Palacios,
46 S.W.3d at 875, 878; see Tex. Civ. Prac. & Rem. Code Ann. '
74.351(r)(6).  Applying this standard, an expert report is insufficient when it
contains only a series of repetitious, conclusory statements regarding
causation.  See Jones v. King, 255 S.W.3d 156, 159 (Tex. App.CSan
Antonio 2008, pet. denied) (mem. op.) (adding that an expert must Aexplain
the basis of his statements to link his conclusions to the facts@).




We
hold that Dr. Haberer=s report addresses causation
in a conclusory fashion and is therefore insufficient.  While the report
adequately describes Pustejovsky=s
alleged physical harm (including her sleep disturbances, hand tremors, and leg
restlessness) and states the conclusions of four doctors (including Dr.
Haberer)[9]
that such harm was related to Reglan use, it does not provide any medical
detail as to how the Reglan caused Pustejovsky=s
conditions or, more importantly, how Dr. Collini=s
specific prescriptions of Reglan (beyond the taking of Reglan generally)
attributed to the harm.[10] 
And while the manufacturer=s warning (that Reglan
should not be prescribed for more than twelve weeks) coupled with the causation
opinions of the four doctors (though conclusory) may create a reasonable inference
that Dr. Collini=s prolonged prescription of
Reglan caused Pustejovsky=s condition, we are not
permitted to rely on that inference in reviewing Dr. Haberer=s
report.[11] 
See Webb, 228 S.W.3d at 279 (noting that courts are precluded Afrom
filling gaps in a report by drawing inferences@); see
also Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.CEl
Paso 2008, no pet.) (explaining that courts are not permitted to infer
causation).  Because Dr. Haberer=s
report does not adequately address the link between Dr. Collini=s
alleged breach of her standard of care and Pustejovsky=s
tardive dyskinesia that allegedly resulted, the report is insufficient.
Proper
Disposition Following Reversal




In
her brief, Dr. Collini contends that upon reversal, we should render a judgment
dismissing Pustejovsky=s claims with prejudice. 
Pustejovsky asserts that if we hold Dr. Haberer=s
report to be insufficient, we should remand this case to the trial court to
allow it to consider granting thirty additional days to cure the deficiency.[12]
 The
Texas Supreme Court has held that section A74.351=s
plain language permits one thirty‑day extension when the court of appeals
finds deficient a report that the trial court considered adequate.@  Leland
v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008).  Accordingly, the trial court
should have an opportunity to consider granting Pustejovsky an extension to
cure the deficiencies detailed in this opinion.
Conclusion
Having
sustained Dr. Collini=s only issue, we reverse the
trial court=s decision regarding the sufficiency of
Dr. Haberer=s report and remand this case to that
court to consider the issue of whether to grant Pustejovsky a thirty‑day
extension to file an adequate expert report. 
 
TERRIE LIVINGSTON
JUSTICE
 
PANEL: 
LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DAUPHINOT,
J. filed a dissenting and concurring opinion.
DELIVERED: 
February 12, 2008










 

















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
                                                 NO.
2-07-005-CV
 
WENDY COLLINI, M.D.                                                                      APPELLANT
 
                                                             V.
 
                                                                                                            APPELLEE
MARTHA PUSTEJOVSKY
                                                       ------------
 
               FROM THE 48TH DISTRICT COURT
OF TARRANT COUNTY
 
                                                       ------------
 
          DISSENTING AND CONCURRING OPINION ON
REMAND
 
                                                       ------------
I
concur with the result reached by the majority.  But I write separately to
emphasize that this opinion should be limited to the specific facts at issue
and also to caution that we as judges must guard against the idea that it is
better to toss out legitimate medical claims than to let a frivolous claim
proceed.




An
expert report under section 74.351 of the Texas Civil Practice and Remedies
Code does not need to rise to the level of proof sufficient to win at trial; it
need only assure the trial court that the plaintiff=s
claim is not frivolous.1 
The report must, of course, demonstrate that the expert is qualified to render the
opinions given in the report.2 
As the majority points out, Dr. Haberer=s
report did not demonstrate any personal expert knowledge, gained either from
experience or training, about the effects of the overprescription of Reglan. 
His assertions about causation were based on the warnings of the drug
manufacturer and the diagnoses of other doctors whose qualifications do not
appear in his report.  




A
layperson can determine that if a drug manufacturer warns that overprescribing
a drug could cause certain injuriesCin
this case tardive dyskinesia (ATDk@)Cthen
it is a possibility that a doctor=s
overprescription of the drug could indeed cause such injuries.  But Texas law
requires that, in medical malpractice actions, a medical expert give an opinion
about whether a doctor=s act in fact did cause the
alleged injuries.3 
To qualify as an expert, a person must demonstrate some knowledge beyond what a
layperson would have.4 
Thus, in this case, the expert must demonstrate some basis for knowledge about
causation beyond stating that if Reglan=s
manufacturer warned that overprescription of the drug could cause TDk, then
ipso facto Dr. Collini=s overprescription of Reglan
did cause Mrs. Pustejovsky>s TDk.5 




I
agree with the majority that Dr. Haberer=s
report does not show that in this specific area, he had any knowledge beyond
that of a layperson.  He did not, for example, show that he had conducted
research on TDk or on Reglan.6 
Although Dr. Haberer had knowledge that failing to heed a drug manufacturer=s
warning can cause injury, nothing in his report shows the basis for his
assertion that the overprescription of the drug at issue here actually caused
the alleged injuries in this case.7
But
I emphasize that the law is also clear that a medical expert is not uniformly
required to be specialized in an area to be qualified to opine on it.  And an
expert need not necessarily have personal professional experience with a drug
or procedure to be qualified to give an opinion that the drug or procedure
caused a plaintiff=s alleged injuries.  The
expert is qualified to give an opinion on causation so long as the expert
demonstrates some Aknowledge, skill,
experience, training, or education@
sufficient to support the opinion.8
The
legislature did not intend to make it impossible or unjustly burdensome for
legitimate medical malpractice claims to proceed to and succeed at trial.  In
this case, for example, a doctor failed to heed warnings by Reglan=s
manufacturer that its overuse can cause TDk.  Three different doctors examined
Mrs. Pustejovsky and concluded that she developed TDk because of the use of
Reglan.  On the face of it, this case is an excellent example of a nonfrivolous
claim.  Yet we are constrained to hold that evidence of these facts alone is
not good enough to allow Mrs. Pustejovsky her day in court.




Statutes
such as section 74.351 must be read in light of the open courts provision of
our Texas constitution.9 
The legislature did not abrogate that constitutional protection in passing
section 74.351.  We must not with our opinions indicate a zeal to scrutinize
expert reports more closely than we are required to under the law, nor an
apathy toward whether even legitimate claims are tossed out of court; we must
always remember our obligation to preserve, protect, and defend the
constitution of this state.  I believe that in fulfilling that obligation, we
must explicitly limit our holding to this case to prevent its broad
misapplication in other cases.
Because
the majority does not explicitly so limit the holding, I respectfully dissent. 
 
LEE ANN DAUPHINOT
JUSTICE
 
DELIVERED:  February 12, 2009




[1]Tardive dyskinesia is
a condition that causes involuntary movement of the limbs, face, or tongue.  See
State ex rel. F.H., 214 S.W.3d 780, 781 n.1 (Tex. App.CTyler 2007, no pet.);
In re C.S., 208 S.W.3d 77, 79 n.7 (Tex. App.CFort Worth 2006, pet. denied).  The
prolonged use of Reglan may cause tardive dyskinesia.  See McNeil v. Wyeth,
462 F.3d 364, 366B67 (5th Cir. 2006)
(explaining the uses of Reglan and the potential adverse consequences from its
prolonged prescription).


[2]The report alleged
that the hand tremors began in February 2003.


[3]Concluding his
report, Dr. Haberer expressed his opinion that ADr. Collini=s violations of the
standard of care were a direct and proximate cause of Mrs. Pustejovsky=s tardive dyskinesia
and the worsening of her tardive dyskinesia caused by the Reglan.@


[4]We recognize that the
Beaumont Court of Appeals has held that medical records submitted by a
defendant in an objection to an expert report may be considered by the trial
court in determining the adequacy of the report.  See Baptist Hosps. of Se.
Tex. v. Carter, No. 09‑08‑00067-CV, 2008 WL 2917109, at *3 n.4
(Tex. App.CBeaumont July 31,
2008, no pet.) (mem. op.).  Dr. Collini relies on Carter to urge us to
review the medical records submitted in her reply at trial, which she claims
demonstrate inconsistencies with the factual statements contained in Dr.
Haberer=s report.  In
essence, Dr. Collini asserts that we should consider information outside of the
expert report on her behalf while we are prohibited from doing so on behalf of
Pustejovsky.  We disagree with the reasoning expressed by our sister court in Carter,
and we rely on the language contained in Palacios and Bowie Memorial
Hospital to constrain our review of the report=s adequacy at this
preliminary stage in the proceedings to the specific information and
allegations contained within it.  See Bowie Mem=l Hosp., 79 S.W.3d at 53
(limiting review of an expert report to information contained within its four
corners); Palacios, 46 S.W.3d at 878 (stating that a court Ashould look no
further than the report@); see also Maris
v. Hendricks, 262 S.W.3d 379, 386 (Tex. App.CFort Worth 2008, pet. denied)
(prohibiting a physician from using deposition testimony to attack the adequacy
of an expert report served upon him).


[5]Dr. Collini has not
challenged that Dr. Haberer was practicing medicine at the time he submitted
his report or when Pustejovsky's claim arose.  Therefore, we will limit our
analysis to the second and third statutory prongs related to expert
qualifications on the standard of care issue.  See Tex. Civ. Prac. &
Rem. Code Ann. ' 74.401(a)(2)B(3).


[6]If Dr. Haberer had
submitted no details regarding the manufacturer=s warnings related to Reglan, he likely
would have been required to demonstrate his specific experience with the drug
and its effects related to his standard of care assertion, because he would
have been assessing blame on Dr. Collini for prescribing the drug based on his
independent knowledge of it.  However, Dr. Haberer=s report relies on
the manufacturer=s instructions and
warnings to assert that when presented with such instructions, a physician has
a duty to follow them, and when presented with such warnings, a physician has a
duty to monitor conditions related to them.  We conclude that these asserted
duties do not require specialized understanding.  See Blan, 7 S.W.3d at
745.


[7]Rule 702 states that A[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.@  Tex. R. Evid. 702.


[8]Pustejovsky was 76
years old when Dr. Haberer filed his report.


[9]As described above,
Dr. Haberer=s opinion on
causation is limited to one conclusory sentence at the end of his report.


[10]Dr. Haberer=s report indicates
that the three physicians= respective
conclusions were that Pustejovsky=s tardive dyskinesia was Aattributed to the use
of Reglan,@ Asecondary to
[Reglan],@ and Adue to Reglan.@  However, as
explained above, Pustejovsky=s petition did not fault Dr. Collini with prescribing
Reglan generally; rather, it focused on Aongoing Reglan prescriptions.@  Therefore, the
conclusions on causation of those three physicians, to the extent that they are
revealed in Dr. Haberer=s report, do not
relate to a causal relationship with Dr. Collini=s alleged breach of the specific
standard of care at issueCthe prolonged prescription
of Reglan to Pustejovsky.


[11]While it seems to us
that we should be able to determine that the explanation on causation is
adequate when three physicians= diagnoses of tardive dyskinesia have been expressed in
the report, we simply are constrained from doing so here because we are limited
to the report=s four corners, which
do not contain a specific link of the diagnoses to Dr. Collini=s actions or those
three physicians= qualifications and
the documentation they relied on to form their opinions.  See Palacios,
46 S.W.3d at 878; Jones, 255 S.W.3d at 159B 60.


[12]Pustejovsky also
sought such an extension as alternative relief from the trial court in the
event that it found the expert report to be deficient.


1Jernigan v. Langley, 195 S.W.3d 91, 93
(Tex. 2006) (stating that expert report Aneed not marshal every bit of the plaintiff=s evidence@ but must provide a Afair summary@ of expert=s opinion on standard
of care, breach of that standard of care, causation, and harm).


2See Tex. Civ. Prac. &
Rem. Code Ann. ' 74.351(5)(A) (Vernon
Supp. 2008), ' 74.401(a)(4) (Vernon
2005) (defining Aexpert@ to mean someone
qualified on the basis of training or experience to offer an expert opinion).


3See id. ' 74.351(a), (r)(6)
(requiring plaintiff alleging medical malpractice claim to provide an expert
report and defining Aexpert report@ to mean a report by
an expert that provides, among other things, the expert=s opinion regarding
causation).


4See id. ' 74.351(r)(5)(C) (A>expert= means . . . a
physician who is otherwise qualified to render opinions on [causation] under
the Texas Rules of Evidence@); Tex. R. Evid. 702 (stating that a witness may be
qualified as an expert Aby knowledge, skill,
experience, training, or education@).


5See Leland v. Brandal, 217 S.W.3d 60, 62B63 (Tex. App.CSan Antonio 2006)
(holding that anesthesiologist=s report showed he was qualified to render opinion that
cessation of medicines taken by plaintiff may cause stroke but did not show his
qualification to give opinion that cessation of medication did cause plaintiff=s stroke), aff=d, 257 S.W.3d 204
(Tex. 2008).


6See, e.g., Salvato v.
Angelo, No. 14‑07‑00784‑CV, 2008 WL 961772, at *6B7 (Tex. App.CHouston [14th Dist.]
Apr. 08, 2008, no pet.) (mem. op.) (holding doctor qualified to opine on
negligence of defendant in prescribing anabolic steroids and causation of
plaintiff=s injuries even
though expert doctor was not an endocrinologist when her report provided
sufficient evidence of her knowledge in connection with clinical studies
prescribing and monitoring hormones in patients).


7See Leland, 217 S.W.3d at 62B63.


8See Tex. R. Evid. 702.


9Tex. Const. art. I, ' 13.





