                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-12-00597-CV
                              _________________

              INTRA-OP MONITORING SERVICES, LLC AND
                     JUSTIN HAWKINS, Appellants

                                         V.

             RACHEL CAUSEY AND BILL CAUSEY, Appellees

________________________________________________________________________

                    On Appeal from the 410th District Court
                         Montgomery County, Texas
                       Trial Cause No. 10-06-06191 CV
________________________________________________________________________
                          MEMORANDUM OPINION

      Intra-Op Monitoring Services, LLC (―Intra-Op‖) and Justin Hawkins appeal

the trial court‘s order denying their motion to dismiss the Causeys‘ health care

liability claims pursuant to section 74.351 of the Texas Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011).

Because the supplemental expert report was sufficient for the trial court to find it

met the requirements of section 74.351, we affirm the order of the trial court.

                                          1
                               I.     BACKGROUND

      In May 2009, Dr. Rosalia Burke performed a right superficial

parotidectomy1 on Rachel Causey at Memorial Hermann Hospital–The

Woodlands. To assist in locating Rachel‘s facial nerve, Dr. Burke utilized

intraoperative neurophysiological monitoring (IONM). Intra-Op provided the

IONM equipment. The IONM equipment allows real-time mapping of areas with

nerve branches by the placement of monitoring electrodes (which provide

electroconductive feedback) on a patient‘s cranial nerves so the surgeon may avoid

damaging the nerves during surgery. Intra-Op also provided the technologist,

Justin Hawkins, who was present during the surgery. Dr. Charles Popeney, a

neurologist specializing in intraoperative neurophysiological monitoring, assisted

Dr. Burke by monitoring the readings from the IONM equipment, from a remote

location. During the procedure, Rachel‘s facial nerve was inadvertently transected.

      The Causeys filed a report authored by Dr. Jaime Lopez to comply with the

statutory requirements that apply to health care liability claims. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351. Intra-Op and Hawkins filed objections to the

sufficiency of the expert report. The trial court overruled the objections and denied
      1
          A parotidectomy is the ―surgical removal of the parotid gland[.]‖
Webster’s Third New International Dictionary 1644 (2002). The parotid gland is
―either of a pair of salivary glands situated on the side of the face below and in
front of the ear[.]‖ Id.
                                          2
the parties‘ motion to dismiss. Intra-Op and Hawkins appealed the trial court‘s

ruling. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2012).

In the prior appeal, we concluded that Dr. Lopez‘s report failed to provide a fair

summary that explained how the acts or omissions of Intra-Op and Hawkins

proximately caused Rachel‘s injury.         See Intra-Op Monitoring Servs., LLC v.

Causey, No. 09-12-00050-CV, 2012 WL 2849281, at *1 (Tex. App.—Beaumont

July 12, 2012, no pet.) (mem. op.).         We reversed the trial court‘s order and

remanded the case to the trial court to consider the Causeys‘ request for additional

time to cure the deficiencies. Id. at *5.

       The trial court subsequently granted Intra-Op‘s and Hawkins‘s request for an

extension of time and Dr. Lopez filed a supplemental report. Intra-Op and Hawkins

objected to the sufficiency of the supplemental report and moved to dismiss. The

trial court overruled the objections and denied the motion to dismiss. This

interlocutory appeal followed. On appeal, Intra-Op and Hawkins argue that Dr.

Lopez‘s supplemental report still fails to explain how the alleged acts or omissions

of Intra-Op and Hawkins caused Rachel‘s injuries and fails to adequately address

the standard of care and breach of the standard of care. Finding no abuse of

discretion by the trial court in denying the motion to dismiss, we affirm the order

of the trial court.

                                            3
                              II.   APPLICABLE LAW

      We review a trial court‘s denial of a motion to dismiss under section 74.351

of the Civil Practice and Remedies Code for an abuse of discretion. See Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.

2001). ―A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles.‖ Bowie Mem’l Hosp.

v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court also abuses its discretion if

it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992).

      A plaintiff who asserts a health care liability claim, as defined by the statute,

must provide each defendant physician or health care provider with an expert

report which provides ―a fair summary of the expert‘s opinions‖ as of the date of

the report regarding the applicable standards of care, the manner in which the care

rendered failed to meet the applicable standards, and the causal relationship

between that failure and the claimed injury. Tex. Civ. Prac. & Rem. Code Ann. §

74.351(a), (r)(6). When a plaintiff timely files an expert report and a defendant

moves to dismiss on the basis that the report is insufficient, the trial court must

grant the motion only if the report does not represent a good faith effort to meet the

statutory requirements. Id. § 74.351(l). To constitute a good faith effort, a report

                                          4
―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 cannot merely state the expert‘s conclusions about these

elements[]‖ but ―‗must explain the basis of [the] statements to link [the]

conclusions to the facts.‘‖ Bowie, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998

S.W.2d 882, 890 (Tex. 1999)); see also Jelinek v. Casas, 328 S.W.3d 526, 539-40

(Tex. 2010). A report that merely states the expert‘s conclusions about the standard

of care, breach, and causation is deficient. Palacios, 46 S.W.3d at 879. Further, a

report that omits any of the statutory elements is likewise deficient. Id. Regarding

claims of vicarious liability, an expert report is sufficient when it ―adequately

implicates the actions of that party‘s agents or employees[.]‖ Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008). ―The report can be informal

in that 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.‖ Palacios, 46

S.W.3d at 879.




                                         5
                                 III.   ANALYSIS

      In our prior opinion, we concluded that Dr. Lopez‘s initial report was

insufficient because we were unable to determine from the report which of the

defendants failed to properly interpret the monitoring data, what monitoring data

was not properly interpreted, what the standards of care applicable to a

technologist such as Hawkins required, at what point during the surgery the facial

nerve was cut, and what information should have been provided to Dr. Burke that

would have allowed her to avoid cutting the facial nerve. Intra-Op, 2012 WL

2849281, at *3. Dr. Lopez‘s supplemental report answers these questions and

provides a fair summary of the standards of care, breach, and causation. See

Palacios, 46 S.W.3d at 875.

      In his supplemental report, Dr. Lopez extensively sets out the standards of

care applicable to Hawkins, including, but not limited to, a duty to ―properly and

competently place invasive intramuscular recording electrodes in the correct facial

nerve innervated muscles, corresponding to the nerve at risk for injury and those

muscles used as controls[;]‖ ―monitoring continuous and electrically stimulated

electromyographic activity from the facial innervated muscles and a non-facial

innervated muscle for control purposes[;]‖ ―[r]eviewing the baseline IONM data

with Dr. Popeney prior to the first incision of the case[;]‖ ―[r]eviewing the IONM

                                        6
data obtained prior to the critical portion of the surgery[;]‖ ―[r]eviewing and

confirming the IONM dynamic data results, in real-time, as it was obtained with

Dr. Popeney . . . in a contemporaneous manner[;]‖ ―[t]o promptly inform the

surgeon of any IONM testing results and/or changes after reviewing the data with

Dr. Popeney[;]‖ and to ―not independently interpret the IONM data, . . . [because]

[t]his must be done by the supervising IONM physician, in this case, Dr. Popeney.‖

      To evidence a breach of the standard of care, Dr. Lopez relied upon the

events of the surgery, Dr. Burke‘s post-operative report, Dr. Burke‘s affidavit, and

a communications log and chat log that recorded communications between

Hawkins and Dr. Popeney during the surgery. In his supplemental report, Dr.

Lopez states that surgery began at 1:25 p.m. but Dr. Popeney did not begin

monitoring until 2:18 p.m., leaving Hawkins ―unsupervised at the start of the case‖

and indicating that Dr. Popeney did not review any of the baseline IONM data at

the start of the case. Dr. Lopez specifically asserts that Hawkins breached the

applicable standards of care because he failed to monitor non-facial innervated

control muscles. Dr. Lopez explains that ―[h]aving a control muscle innervated by

a different nerve helps to determine if the muscle activity seen is due to electrical

artifact, a generalized process, or if it is specifically a result of activity from the

nerve in question[.]‖ Dr. Lopez further asserts that Hawkins breached the standards

                                          7
of care by failing to review the baseline IONM data with Dr. Popeney, or any other

IONM physician, failing to review the IONM data obtained prior to the critical

portion of the surgery, failing to review the IONM data contemporaneously with

Dr. Popeney, and independently and improperly interpreting the IONM data.

      Based on communications in the chat log, Dr. Lopez asserts in his

supplemental report that Hawkins was ―not in communication‖ with Dr. Popeney

from 2:36 p.m. to 3:15 p.m., the period during the surgery that Dr. Burke was

stimulating structures in an attempt to verify the nerve position. Dr. Lopez states

that Hawkins breached the standard of care by failing to inform Dr. Burke that the

IONM data had not been reviewed by the supervising IONM physician. Dr. Lopez

reports that prior to cutting the facial nerve, Dr. Burke stimulated to verify the

nerve position and the IONM data ―‗showed stimulation of all branches of the

facial nerve.‘‖ Dr. Lopez explains that the IONM screenshot at 2:44 p.m. ―of the

electrically triggered EMG response shows an electrical shock artifact but no true

EMG (muscle) response.‖ Dr. Lopez states:

      This would indicate that the facial nerve was not being electrically
      activated. Instead, by being told [by Hawkins] there was activity “on
      Oculi, oris, and Mandibular” . . . Dr. Burke was led to believe that the
      structure she was stimulating was indeed the facial nerve. This is of
      crucial importance because if she thought the structure she stimulated
      was the facial nerve, then she would assume the other structures
      encountered were not the facial nerve and treat them differently. This
      erroneous and false identification of the facial nerve, within
                                         8
      reasonable medical probability, contributed to the transection of the
      facial nerve, since the IONM nerve stimulation results conveyed to
      Dr. Burke indicated she had identified the facial nerve and, thus, the
      other structures in the surgical field could be treated as non-nerve[.]

      Dr. Lopez concluded that Hawkins should have informed Dr. Burke that he

had not confirmed any of the electrical stimulation findings with Dr. Popeney, and

that he was unable to interpret the data, or confirm that the structure stimulated was

the facial nerve. Dr. Lopez opined that ―[d]oing this would have alerted Dr. Burke

of the uncertainty of the situation regarding facial nerve identification and would

have given her the opportunity to wait for Dr. Popeney to review the IONM data

and then stimulate other structures‖ to correctly identify the facial nerve.

      Dr. Lopez sets forth in his supplemental report the applicable standards of

care and how they were allegedly breached by Hawkins. Dr. Lopez‘s explanation

of how and why Hawkins‘s breach of the standards of care may have caused or

contributed to Dr. Burke inadvertently cutting the facial nerve provides a sufficient

basis for the trial court to determine that the claim has merit. See Jelinek, 328

S.W.3d at 539-40; Palacios, 46 S.W.3d at 879. We conclude the trial court did not

abuse its discretion in denying Intra-Op‘s and Hawkins‘s motion to dismiss. We

affirm the order of the trial court.




                                           9
      AFFIRMED.


                                            ___________________________
                                                CHARLES KREGER
                                                      Justice

Submitted on March 12, 2013
Opinion Delivered April 25, 2013

Before Gaultney, Kreger, and Horton, JJ.




                                       10
