                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-315-CV


ROBERTO DIAZ-ROHENA, M.D.                                           APPELLANT

                                              V.

CYNTHIA S. MELTON                                                     APPELLEE

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           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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

                  MEMORANDUM OPINION ON REMAND 1

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

      Appellant Roberto Diaz-Rohena, M.D. appeals the trial court’s denial of

his motion to dismiss with prejudice the health care liability claims of Appellee

Cynthia S. Melton. We originally dismissed the appeal for want of jurisdiction.

Diaz-Rohena v. Melton, 253 S.W.3d 290 (Tex. App.—Fort Worth 2007) (mem.

op.), rev’d, 253 S.W.3d 218 (Tex. 2008). Because the Texas Supreme Court



      1
          … See T EX. R. A PP. P. 47.4.
has instructed us that we do have jurisdiction, we now consider the appeal on

the merits. Diaz-Rohena, 253 S.W.3d at 218.

      In two issues, Dr. Diaz-Rohena argues that we should review the trial

court’s denial of his motion to dismiss under the de novo standard and that the

trial court abused its discretion by denying his motion to dismiss. We affirm.

                                  Background

      In her original petition, Melton alleges that Dr. Diaz-Rohena is an

ophthalmologist who holds himself out as a specialist in the treatment and

surgical repair of injuries and ailments related to the retina and vitreous. When

Melton began to experience difficulty with her vision, her optometrist suspected

a macular hole in her left eye as the cause and referred her to Dr. Diaz-Rohena.

Dr. Diaz-Rohena diagnosed a Stage III macular hole, concluded that Melton was

a good candidate for surgical repair, and recommended the same to her. In a

preoperative meeting, Dr. Diaz-Rohena told Melton that her visual acuity

prognosis was “good.”

      Dr. Diaz-Rohena performed surgery on Melton. His surgical notes state

repeatedly that he encountered no complications at any stage of the procedure.

But Melton alleges that his notes suggest problems with her left eye almost

immediately following the procedure and that she suffered a major disruption

of her vision within six weeks.     Dr. Diaz-Rohena’s notes indicate that her

                                       2
problems may be associated with a gas bubble and pool of blood near the site

of the surgery.   His responsive plan was to continue to monitor Melton’s

condition in the hope of improvement.

      Melton alleges that her left eye is now permanently impaired. She sued

Dr. Diaz-Rohena for medical negligence and gross negligence, alleging various

breaches of the applicable standards of care.

      Melton eventually filed a report prepared by John M. Maggiano, M.D. Dr.

Maggiano is a board certified ophthalmologist who practices in California.

After reciting his qualifications, Dr. Maggiano set out the applicable standards

of care, as follows:

            Surgical treatment of a macular hole includes removal of the
      vitreous jelly, identification and removal of a macular membrane,
      and exchange of the posterior fluid volume of the vitreous cavity
      with an air-gas mixture. During this procedure the surgeon has a
      duty to control the elements of the surgery to allow the surgery to
      safely proceed, without causing damage to the retina, macula or
      other structures of the eye.

            Surgery is appropriately performed by carefully approaching
      the macular portion of the retina through the vitreous cavity while
      holding instruments in both hands, while viewing and guiding the
      instrument tips inside of the vitreous via an operating room
      microscope and optical viewing system. The macular membrane is
      then carefully peeled from the retinal surface in a non-traumatic
      manner. A disclosing agent such as indocyanine green (ICG) may
      be used to make the identification, location and extent of the
      membrane easier to visualize, grasp and remove.




                                       3
           This duty includes the safe and careful execution of the
     surgery by stabilizing the operating room table, preventing
     movement of the patient[‘]s head and eye, and cautioning operating
     room personnel not to bump the table, the patient, the surgeon or
     the microscope, especially during portions of the procedure in
     which the surgeon is in close proximity to the retinal surface.

           The surgeon’s duty includes appropriate visualization of the
     internal structures of the eye through an operating room
     microscope and viewing system. While viewing the internal
     anatomy of the eye the surgeon has a duty to control and guide the
     instrument tips in a safe and effective manner, without poking or
     otherwise damaging the retina or other internal structures.

            Thus, during the procedure the surgeon has a duty to control
     all the elements of the surgery to allow the safe removal of the
     vitreous and macular membrane in a non-traumatic manner.

Dr. Maggiano then explained his opinion as to how Dr. Diaz-Rohena breached

the standards of care:

            During the vitrectomy surgery of March 2nd, 2004, Dr. Diaz
     lost control of the instrument tips and/or the patient[‘]s head
     position and poked the retina in two areas close to the area of the
     macular hole. This occurred at some point during the period of
     time in which he held instruments in his hands with the instrument
     tips inside of the eye. Dr. Diaz breached his duty by not controlling
     all the elements of surgery as stated above. At one or more points
     during the vitrectomy surgery Dr. Diaz failed to do one or more of
     the following: he failed to correctly stabilize the surgical table or
     patient[‘]s head and body; he failed to properly instruct and/or
     sedate the patient sufficiently to prevent harmful movement of the
     patient[‘]s head or body; he failed to utilize an anesthesiologist to
     prevent harmful movement of the patient[‘]s head or body; he failed
     to correctly control the position and movement of the instrument
     tips; he failed to prevent operating room personnel from bumping
     his hands, arms, or body; he failed to prevent operating room
     personnel from bumping the patient[‘]s head or body. Any one of

                                      4
      these failures is sufficient enough to have caused damage to the
      retina via a poke or gouge to the retina.

Next, Dr. Maggiano described the nature of the injuries Melton sustained:

            A review of the medical records and a review of the
      photographs of the retina of Ms. Melton’s left eye show severe
      pathological changes that were not present prior to the vitrectomy
      surgery of March 2nd, 2004. There appear to be at least two
      adverse findings in the retina of her left eye. First, she sustained a
      new retinal hole (poke or gouge mark) that was not present prior to
      the surgery of March 2nd, 2004. This is located within a portion
      of the retina close to, but apart from the original macular hole.
      Second, she sustained a second poke mark causing a branch retinal
      artery occlusion (retinal stroke) close to, but apart from the original
      macular hole.

             Each of these injuries alone is a major injury to the retina.
      Compared to her pre-operative status, each injury has caused an
      additional severe impairment of visual function. Both injuries have
      jointly caused loss of central visual acuity, and loss of visual field.
      Both injuries have jointly prevented the visual recovery expected to
      occur after this type of surgery, and have additionally decreased
      the vision in Ms. Melton’s left eye to less than it would have been
      had the surgery not been performed. The injuries sustained do not
      appear to be treatable by any future medical or surgical
      interventions.

Finally, Dr. Maggiano explained the causal relationship between the breaches

of the standard of care he imputes to Dr. Diaz-Rohena and the injuries he just

described, as well as his prognosis for the visual acuity of Melton’s left eye:

             Dr. Diaz breached the standards of care by failing to control
      the surgical instrument tips inside of the vitreous cavity during the
      vitrectomy procedure. The instrument tips damaged the retina in at
      least two areas. This damage includes both a new retina hole, and
      an occlusion of one of the arterial branches of the retina. Dr.

                                        5
     Diaz’[s] failure to control the circumstances of the vitrectomy
     surgery and the moment-to-moment position of the instrument tips
     within the eye caused the instrument tips to damage (poke or
     gouge) the retina in at least two areas. The currently observed
     retina status, apart from the pre-operative status, is a result of the
     damage from the instrument tips. Thus, the breaches in the
     standards of care proximately caused the described injuries.

           It is more likely than not, absent the breaches of the
     standards of care, that Ms. Melton would not have sustained
     damage to her vision and retina discovered after the vitrectomy
     surgery of March 2nd, 2004.

           The instrument damage to the retina caused the eccentric
     macular hole and the branch arterial occlusion. These damages
     have not only prevented her from experiencing a visual recovery,
     but have caused additional visual loss compared to her
     pre-operative status.

            It is my further opinion that this kind of injury to the eye is
     irreversible and will be permanent. In addition, it is my opinion that
     Ms. Melton may develop a macular hole in her right eye in the
     future, and that she may face the untenable decision of whether to
     risk another macular hole surgery.

     Dr. Diaz-Rohena filed objections to Dr. Maggiano’s report and moved the

court to dismiss Melton’s claims, arguing that Dr. Maggiano’s report provided

no factual basis for his conclusions that Dr. Diaz-Rohena poked the retina in

two areas close to the macular hole, failed to prevent the movement of

Melton’s body or the jostling of the operating table and equipment during the

procedure, and failed to control the movement of the surgical instrument tips




                                       6
inside the vitreous cavity.     The trial court overruled Dr. Diaz-Rohena’s

objections and denied his motion to dismiss. This appeal followed.

                              Standard of Review

      In part of his first issue, Dr. Diaz-Rohena argues that we should review

the trial court’s denial of his motion to dismiss under the de novo standard. We

recently rejected the identical argument and held that the abuse of discretion

standard applied in Center for Neurological Disorders, P.A. v. George, No.

02-06-00105-CV, 2008 WL 2717149, at *3 (Tex. App.—Fort Worth July 10,

2008, no pet. h.). We therefore overrule this part of Dr. Diaz-Rohena’s first

issue, and we will review the trial court’s ruling for an abuse of discretion.

      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,

241–42 (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. But a trial court has no discretion in

determining what the law is or in applying the law to the facts, and thus “a

clear failure by the trial court to analyze or apply the law correctly will

                                       7
constitute an abuse of discretion.” Walker v. Packer, 827 S.W .2d 833, 840

(Tex. 1992); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort W orth

2004, pet. denied).

                             Sufficiency of Report

      In the remainder of his first issue and in his second issue, Dr. Diaz-Rohena

argues that the trial court erred by denying his motion to dismiss because

Melton’s expert report contained legally insufficient information from which the

trial court could conclude that Melton’s claim has merit.

      In a health care liability claim, a claimant must serve an expert report on

each defendant no later than the 120th day after the claim is filed. T EX. C IV.

P RAC. & R EM. C ODE A NN. § 74.351(a) (Vernon Supp. 2008). Under section

74.351(b), if an expert report has not been served on a defendant physician or

health care provider within the 120-day period, then on the motion of the

affected physician or health care provider, the trial court must dismiss the claim

with prejudice. Id. § 74.351(b). The words “has not been served” include

cases in which a report has been served but found deficient by the trial court.

Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008). Subsection (b)

is subject to subsection (c), which provides that when no report has been

served because the report that was served was found to be inadequate, the trial

court has discretion to grant one thirty-day extension to allow the claimant to

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cure the deficiency. T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(c); Leland v.

Brandal, 217 S.W .3d 60, 64–65 (Tex. App.—San Antonio 2006), aff’d, 257

S.W.3d 204 (Tex. 2008).

      A defendant may challenge the adequacy of a report, and the trial court

must grant the motion to dismiss if it finds, after a hearing, that “the report

does not represent an objective good faith effort to comply with the definition

of an expert report” in the statute.        T EX. C IV . P RAC . & R EM. C ODE A NN.

§ 74.351(l). While the expert report “need not marshal all the plaintiff’s proof,”

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873,

878 (Tex. 2001) (construing former art. 4590i, § 13.01), 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.” T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 74.351(r)(6).

      To constitute a good-faith effort, the report must “discuss 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

                                        9
expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.

The information in the report “does not have to meet the same requirements as

the evidence offered in a summary-judgment proceeding or at trial.” Id. The

claimant’s expert must incorporate enough information to fulfill two purposes:

(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 the claims are

meritorious. Id.

       When reviewing the adequacy of a report, the only information relevant

to the inquiry is the information contained within the four corners of the

document. Id. at 878. 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 id. However, section 74.351 does not prohibit experts, as

opposed to courts, from making inferences based on medical history. Marvin

v.   Fithian,   No.   14-07-00996-CV,    2008    WL   2579824,     at   *4   (Tex.

App.—Houston [14th Dist.] Jul. 1, 2008, no pet. h.); see also T EX. R. E VID. 703

(providing that an expert may draw inferences from the facts or data in a

particular case), 705 (providing that expert may testify in terms of opinions and

inferences).

       Dr. Diaz-Rohena argues that Dr. Maggiano’s report is fatally defective

because he improperly infers Dr. Diaz-Rohena’s negligence from the injuries

                                        10
themselves. Dr. Diaz-Rohena contends that because nothing in the operative

record suggests that Dr. Diaz-Rohena poked or gouged Melton’s retina with the

surgical instruments, Dr. Maggiano’s report merely speculates about the cause

of her postoperative vision problems. He further argues that Dr. Maggiano’s

report fails to explain how the alleged pokes or gouges caused Melton’s

subsequent problems, noting that loss of vision is an inherent risk associated

with retinal or vitreous surgery.   See T EX. A DMIN. C ODE A NN. § 601.2(f)(3)

(Vernon 2008) (setting out inherent risks as defined by the Texas Medical

Disclosure Panel).

      Dr. Maggiano stated that a surgeon has a duty to control the elements

involved in retinal surgery to allow the surgery to proceed safely and without

causing damage to the retina, macula, or other eye structures. He stated that

this duty includes taking steps to insure that the patient and operating

equipment are immobilized during surgery, especially when the surgeon is

working in close proximity to the retinal surface. Dr. Maggiano stated that his

review of Melton’s medical records and retinal photographs showed severe

pathological changes to her left retina that were not present before the

procedure performed by Dr. Diaz-Rohena, namely, two poke or gouge marks

close to the original macular hole.     Acknowledging that Dr. Diaz-Rohena

reported in the operative record that he experienced no complications during the

                                      11
surgery, Dr. Maggiano nevertheless opines that Dr. Diaz-Rohena failed to

control the surgical instruments during the procedure and poked or gouged

Melton’s retina. He states that “[e]ach of these injuries alone is a major injury

to the retina” and that “[c]ompared to her preoperative status, each injury

caused an additional severe impairment of visual function. Both injuries have

jointly caused loss of central visual acuity, and loss of visual field.”

      Thus, Dr. Maggiano’s report summarizes his 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.” See T EX. C IV.

P RAC. & R EM. C ODE A NN. § 74.351(r)(6). We need not fill gaps in his report by

drawing inferences or guessing as to what he likely meant or intended, see

Palacios, 46 S.W.3d at 878, because his report contains what the statute

requires.

      The gist of Dr. Diaz-Rohena’s argument is that Dr. Maggiano’s report

lacks a “smoking-gun” admission by Dr. Diaz-Rohena in the operative record

that he gouged or poked Melton’s retina during the procedure. But the rules of

evidence allow an expert to draw inferences from the underlying facts or data,

and that is what Dr. Maggiano has done here. See T EX. R. E VID. 703, 705.

Moreover, Dr. Maggiano’s report does not merely state his opinions and

                                        12
inferences; he explains the basis for his conclusions and links them to the facts.

See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

      Dr. Diaz-Rohena likens this case to Jernigan v. Langley, in which the

supreme court criticized the court of appeals for indulging in “multiple

inferences that are simply unsupported by the scant reports.” 195 S.W.3d 91,

94 (Tex. 2006). This case is easily distinguishable. In Jernigan, one of the

plaintiff’s two expert reports did not mention Dr. Jernigan at all, and the other

mentioned him only in passing in a single sentence. Id. at 93. By contrast, Dr.

Maggiano’s entire report focuses solely on Dr. Diaz-Rohena.          Moreover, in

Jernigan, it was the court of appeals that made (unsupported) inferences. Id.

at 94. In this case, it is the expert, Dr. Maggiano—not the court—who draws

inferences from the underlying medical records in light of the applicable

standards of care, and his report explains the link between the records and his

inferences.

      Dr. Diaz-Rohena also suggests that Dr. Maggiano’s report impermissibly

relies on the evidentiary rule of res ipsa loquitur to support his inferences. Res

ipsa loquitur is a doctrine that permits the fact-finder to infer negligence in the

absence of direct proof. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865

(Tex. 1982). It is generally inapplicable to medical malpractice cases except

those in which the nature of the alleged malpractice is plainly within the

                                        13
common knowledge of laymen, making expert testimony unnecessary. Shelton

v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. denied)

(citing Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990)). Thus res

ipsa loquitur, which dispenses with the need for expert testimony, is not

implicated in this case because Melton is relying on an expert—Dr.

Maggiano—to establish the elements required by section 74.351.

      We hold that Dr. Maggiano’s report (1) informed Dr. Diaz-Rohena of the

specific conduct that Melton has called into question and (2) provided a basis

for the trial court to conclude the claims are meritorious. See Palacios, 46

S.W.3d at 879.     We therefore hold that the trial court did not abuse its

discretion by determining that the report complied with section 74.351,

overruling Dr. Diaz-Rohena’s objections to the report, and denying his motion

to dismiss. We overrule both of Dr. Diaz-Rohena’s issues.

                                 Conclusion

      Having overruled both of Dr. Diaz-Rohena’s issues, we affirm the trial

court’s order overruling his objections and denying his motion to dismiss.




                                          ANNE GARDNER
                                          JUSTICE

PANEL:      HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED: August 29, 2008

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