AFFIRM; Opinion Filed March 4, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00273-CV

                  TEXAS INSTITUTE FOR SURGERY, L.L.P., Appellant
                                      V.
                         ANGELA M. CARPENTER, Appellee

                      On Appeal from the 134th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. Dc-17-04230

                             MEMORANDUM OPINION
                           Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Myers
       This is an interlocutory appeal from the denial of a motion to dismiss under section

74.351(b) of the Texas Civil Practices and Remedies Code. See TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351; see also id. § 51.014(a)(9) (interlocutory appeal).

       Angela M. Carpenter sued Texas Institute for Surgery, L.L.P. (TIS) as well as other

defendants for damages she allegedly sustained from epidural steroid injections. After Carpenter

served an amended expert report, TIS moved to dismiss her claims against it because the amended

report did not meet the requirements for an expert report. See id. § 74.351(b). The trial court

denied the motion to dismiss. TIS brings this interlocutory appeal contending the trial court abused

its discretion by denying the motion to dismiss. We affirm the trial court’s order.
                                         BACKGROUND

       Carpenter suffers from chronic pain. To combat the pain, she received treatment from a

pain-management physician, Dr. Renaud Rodrigue. As part of the pain-management treatment,

Dr. Rodrigue gave Carpenter epidural steroid injections at TIS and was assisted by TIS’s staff.

These injections require the surgeon to bring the injection needle near the spinal cord.

       According to Dr. Rodrigue’s notes following the procedure, Carpenter was under general

anesthesia while receiving the injections. During the procedure, Carpenter “moved vigorously.”

TIS’s staff held her down, but she “[w]as writhing on the table” and “did move quite a lot” while

Dr. Rodrigue finished the procedure. When Carpenter awoke, she complained of “mid thoracic

pain (sharp and ‘tingling’) there and radiating to the abdomen as well.” His notes also stated that

after the procedure, “[f]rom the way she is acting, and given her symptoms, I fear that might be

thoracic cord injury.” Dr. Rodrigue sent her “per 911 for an emergency thoracic MRI.”

       A neurosurgeon reviewed MRI scans taken after the procedure, and he determined

Carpenter “has a focal area of intrinsic injury to the spinal cord.”

       Carpenter brought suit against Dr. Rodrigue, the anesthetist, and TIS alleging they were

negligent during the procedure. Carpenter timely served the defendants with an expert report

prepared by Dr. Jay Stanford Ellis Jr. The defendants objected to the report and moved for

dismissal under section 74.351. The trial court sustained the objections and granted Carpenter a

thirty-day extension to serve additional expert reports to meet the requirements of section 74.351.

Carpenter served defendants with Dr. Ellis’s amended report. TIS objected to this report and

moved for dismissal. The trial court denied the motion to dismiss.

                             EXPERT-REPORT REQUIREMENT

       Section 74.351 of the Civil Practice & Remedies Code provides that a plaintiff bringing a

health care liability claim must serve defendants who are physicians or health care providers with


                                                 –2–
an expert report within 120 days of their answers. CIV. PRAC. § 74.351(a). The report must provide

the expert’s opinions regarding the standard of care, the manner in which the care rendered by the

defendant failed to meet the standard, and the causal relationship between that failure and the

injury, harm, or damages caused. Id. § 74.351(r)(6). A defendant may file objections to the report

within twenty-one days after the report is served or the defendant files its answer. Id. § 74.351(a).

If an expert report is not timely filed, the trial court must, on the defendant’s motion, dismiss the

health care liability claims with prejudice and award the defendant its reasonable attorney’s fees

and costs of court. Id. § 74.351(b). If the plaintiff serves an expert report that “does not represent

an objective good faith effort to comply with the definition of an expert report in Subsection

(r)(6),” then the court must grant a motion challenging the adequacy of the report. Id. § 74.351(l).

The court may grant a party that serves a deficient expert report one 30-day extension to cure the

deficiencies. Id. § 74.351(c).

        For an expert report to “represent an objective good faith effort to comply with the

definition of an expert report,” the report must provide enough information to inform the defendant

of the specific conduct the plaintiff has called into question and to provide a basis for the trial court

to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 879 (Tex. 2001).         If a report omits any of the statutory elements of section

74.351(r)(6), it cannot be a good faith effort. Id. In determining whether the expert report

represents a good faith effort to comply with the statutory requirements, the court’s inquiry is

limited to the four corners of the report. Sanchez v. Martin, 378 S.W.3d 581, 588 (Tex. 2012). A

court may not “fill gaps” in an expert report by drawing inferences or guessing what the expert

likely meant or intended. Patterson v. Ortiz, 412 S.W.3d 833, 835–36 (Tex. App.—Dallas 2013,

no pet.).




                                                  –3–
       One of the mandatory elements of a good faith report is an explanation of the causal

relationship between a failure to meet the applicable standard of care and the injury, harm, or

damages claimed. CIV. PRAC. § 74.351(r)(6). “A causal relationship is established by proof that

the negligent act or omission was a substantial factor in bringing about the harm and that, absent

this act or omission, the harm would not have occurred.” Nexion Health at Lancaster, Inc. v.

Wells, No. 05–16–00018–CV, 2016 WL 4010834, at *3 (Tex. App.—Dallas July 25, 2016, no

pet.) (mem. op.). “An expert report must explain ‘to a reasonable degree how and why the breach

of the standard of care caused the injury.’” Id. (quoting Jelinek v. Casas, 328 S.W.3d 526, 536

(Tex. 2010)) (internal brackets and punctuation omitted). The report “must explain the basis of

[the expert’s] statements to link his conclusions to the facts.” Bowie Mem. Hosp. v. Wright, 79

S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1989)). “An

expert’s mere conclusion that “in medical probability” one event caused another differs little,

without an explanation tying the conclusions to the facts, from an ipse dixit, which the supreme

court has consistently criticized.” Nexion, 2016 WL 4010834, at *3 (citing Jelinek, 328 S.W.3d

at 539).

                                   STANDARD OF REVIEW

       In its issue on appeal, TIS contends the trial court erred by denying TIS’s motion to dismiss

Carpenter’s suit for failure to comply with the expert-report requirements of section 74.351. We

review a trial court’s order on the sufficiency of an expert report for an abuse of discretion.

Palacios, 46 S.W.3d at 877. A court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985). “Another way of stating the test is whether the act was

arbitrary or unreasonable.” Id. at 242.




                                                –4–
                                         EXPERT REPORT

        To comply with the requirements of section 74.351, Carpenter served the defendants with

the expert report of Dr. Ellis. After the trial court sustained the defendants’ objections to the report,

Dr. Ellis amended his expert report, and Carpenter served it on defendants. Defendants did not

object to Dr. Ellis’s qualifications. Here are the portions of Dr. Ellis’s report that are relevant to

TIS:

        II. FACTS OF THE CASE

        Ms. Angela Carpenter was under the care of Dr. Renaud Rodrigue for chronic pain
        across the mid back and anterior chest. The diagnoses in the medical record from
        Dr. Rodrigue include thoracic radiculopathy, thoracic spondylosis and
        costochondritis/Tietze’s syndrome. Medical records indicate Ms. Carpenter
        received treatment with chronic opioid therapy, costochondral/costovertebral
        injection, thoracic facet injection and thoracic epidural steroid injection. Ms.
        Carpenter carried a diagnosis of cystic fibrosis. Ms. Carpenter underwent thoracic
        epidural steroid injection and costovertebral joint injection and thoracic facet joint
        injection on several occasions. My review of the record indicates Ms. Carpenter
        received these procedures from Dr. Rodrigue every 3-4 months from 2013 through
        2015. . . .

        On December 31, 2015 Ms. Carpenter again underwent costosternal joint injection
        at T1, T2, T3, T4, T5, T6 and T7 bilaterally. She received costovertebral joint
        injection at T6-7 and T7-8, T8-9. She received thoracic epidural steroid injection,
        recorded at the T6-T7 level. Ms. Carpenter received general anesthesia from
        Thomas Huddleston, CRNA. Indications for general anesthesia during this
        procedure are not recorded, but a previous note from December 18, 2012 dictated
        by Dr. Rodrigue justifies the use of general anesthesia . . . . The procedure note on
        the operative dictation indicates the procedure was done in the prone position at
        T6-7. The note further states, “The patient tolerated the procedure well and there
        were no adverse events noted.” The note was electronically signed by Dr. Rodrigue
        on December 31, 2015 at 12:06 PM. An addendum signed at 12:19 on that same
        date reads as follows:

                I have not yet done her note but we have already had a worrisome
                side effect reported by the patient just now, at 11:34 AM. Initially,
                she had a very dense block from the waist down which I thought was
                either a dense epidural or at worst, an intrathecal injection. As she
                moved vigorously during the procedure (which she always does), I
                wasn’t too alarmed as this is a low risk complication of neuraxis
                blockade. However, about 20-30 minutes following this, she started
                developing mid thoracic pain (sharp and “tingling”) there and
                radiating to the abdomen as well. I’m very concerned because she
                as (sic) writhing on the table and even though we were holding her
                                                 –5–
       (there were several people doing this), she did move quite a lot. But
       at no time did I think the needle was too deep nor did I see CSF.
       Additionally, when it was clear that we are epidural, by bilateral/AP
       fluoro I did not feel the needle seemed to be any deeper at any point
       prior to this.

       We always sedate Angela for these procedures per her own request
       (and I agree as well, as we use continuous flouro), due to the fact
       that injections are so exquisitely painful. It was deemed in the
       balance, this was safer and indeed we had very little difficulty with
       prior procedures until now. From the way she is acting, and given
       her symptoms, I fear that might be thoracic cord injury. I’m sending
       her now, per 911 for an emergency thoracic MRI with contrast.—
       Renaud Rodrigue.

....

MRI scan done at 1307 hrs. December 31, 2015 shows the central cord at T9 and
T10 contains minimal symmetric edema. The dorsal epidural space from T8 to T11
there is minimal patchy hematoma. There may be a small subdural component at
T10.

Ms. Carpenter underwent evaluation by Dr. Jerry Marlin, neurosurgery on January
19, 2016. Her chief complaint was right leg weakness with tingling and
paresthesias as well as thoracic spine pain. Dr. Marlin’s note indicates Ms.
Carpenter made some improvement from when he first saw her in the emergency
department at Dallas Presbyterian Hospital. She completed a course of
rehabilitation. His impression includes thoracic myelopathy with epidural and
subdural slight hemorrhage and paraparesis, improved. Dr. Marlin saw Ms.
Carpenter again on February 9, 2016. She complained of some right lower
extremity numbness, especially over the right lateral 3 toes and sole of her foot.
She had a slight heel drop on the right. His impression remained the same and in
his plan he states that “She has a focal area of intrinsic injury to the spinal cord in
both MRI scans.” He recommended she continue with her physical therapy and
rehabilitation[.]

III. STANDARD OF CARE

The standard of care for a pain management physician and by extension any
physician performing epidural steroid injection is to use fluoroscopy to properly
place the needle and avoid injection into the spinal canal. . . . The Spine Intervention
Society takes an even stronger position on the use of sedation.

       There are no features of any of the procedures covered by these
       Guidelines that warrant preemptive or routine sedation. Moreover,
       in certain procedures patients must remain awake to be able to warn
       of adverse events. . . . Whenever sedation is used, however, the
       patient must always be sufficiently alert so as to be able to recognize
       and warn of any impending misadventure by reporting any
                                         –6–
       unexpected, unfamiliar desired sensations.           Under no
       circumstances should any of the procedures be performed under
       general anesthesia (emphasis in the original document)

The standard of care for a pain management physician providing conscious sedation
for thoracic injection procedure is to use sedation only when necessary to facilitate
the procedure. There is no evidence in the medical record that Ms. Carpenter had
any special problems that would require the use of general anesthesia to
successfully complete the procedure. . . . While giving sedation, the treating
physician should ensure that the patient remains communicative. A patient who is
unresponsive may not report symptoms of needle contact with nerve structures.
The primary symptom of nerve contact is pain and the presence of severe pain is
justification to terminate the procedure immediately. If at any time a patient
becomes unresponsive, the procedure must be stopped until a patient can verbalize
and demonstrate adequate cognitive function to report any adverse symptoms. This
allows another layer of safety so the patient can communicate any significant issues
experienced during the procedure. If at any time a patient begins to move one must
consider the possibility of contact by the needle with the spinal cord. Holding a
patient down to do a procedure is never appropriate and is not recommended by
any medical society in any circumstance, especially when involving needle
placement around the spinal cord. The standard of care for an operating room and
hospital staff caring for patients is to use physical restraint only when medically
justified and only under the order of a licensed physician. The use of restraints has
received increased scrutiny over the past years. Multiple organizations including
the American Hospital Association and the Joint Commission for Hospital
accreditation issue guidelines about the proper use of restraints. All hospitals have
such guidelines, and while there may be some individual variation, the purpose of
the guidelines is to ensure that restraining patients is only done when medically
necessary and under the direct order of a licensed practitioner. The need for the
restraint, the type of restraint used, the expected duration of restraint use, and
periodic evaluation of the need for restraint must be documented in the medical
record. A written order for restraint is required, though in an emergency where
patient safety is at risk, a verbal order may be issued by a licensed physician with a
written order to follow afterwards. The purpose of these guidelines is to avoid the
improper use of restraints which is sometimes associated with injury and physical
or emotional trauma to patients.

V. BREACHES OF THE STANDARD OF CARE

....

The operating room staff of Texas Institute for Surgery, ASC breached the standard
of care by holding Ms. Carpenter down while she experienced severe pain. They
did so without any documentation that they were complying with guidelines on the
proper use of restraints as specified by hospital policy and recognized good clinical
practice. There is no order for restraint in the medical record and no documentation
as to the need of restraint performed by the hospital staff. They further aggravated
the situation by not recognizing Ms. Carpenter’s distress as a sign of possible
injection into the spinal cord. They failed in their duty to maintain safety and
                                          –7–
       avoidance of harm to [Ms.] Carpenter by not suggesting to Dr. Rodrigue that the
       pain experienced by [Ms.] Carpenter was due to needle trauma. Instead of
       terminating the procedure and assessing her well-being, they held her down to
       complete the procedure, a practice that is not recommended in any circumstance.
       The hospital staff of Texas Institute for Surgery, ASC facilitated a procedure that
       should have been stopped which then resulted in permanent injury to [Ms.]
       Carpenter.

       V. CAUSATION

       . . . The spinal cord injury experienced by Ms. Carpenter and identified by Dr.
       Marlin as injury directly to the spinal cord was due to an error in technique where
       Dr. Rodrigue placed the needle tip into the spinal cord during general anesthesia,
       damaging the nervous system and leaving Ms. Carpenter with pain and
       disability. . . .

       The operating room staff of Texas Institute for Surgery, ASC held Ms. Carpenter
       down during a spinal injection, despite the knowledge that such behavior could
       cause permanent injury. The hospital staff of Texas Institute for Surgery, ASC
       failed to comply with recommended guidelines and standards for application and
       use of patient restraint. There is no documentation of verbal or written orders for
       the use of restraints during this procedure. Had the staff of Texas Institute for
       Surgery not restrained Ms. Carpenter during the procedure, her injury could have
       been avoided.

       VI. CONCLUSION ON CAUSATION

       It is my opinion, based on reasonable medical probability, that the claim against
       Dr. Rodrigue, Thomas Huddleston, CRNA and the Texas Institute for Surgery,
       ASC has merit. Dr. Rodrigue performed thoracic epidural steroid injection under
       general anesthesia, when all major medical societies recommend against the use of
       general anesthesia in an adult for this procedure. He compounded this error by not
       stopping the procedure when Ms. Carpenter began to writhe on the table. The
       needle trauma and injection into the spinal cord sustained by Ms. Carpenter would
       not have occurred except for the errors in judgment and technique made by Dr.
       Rodrigue. . . . The staff of Texas Institute for Surgery further compounded this error
       by holding Ms. Carpenter down during the procedure even though she was
       experiencing pain and lack of cooperation which is a major symptom of injection
       into the spinal cord. The needle trauma and injection into the spinal cord sustained
       by Ms. Carpenter would not have occurred except for the errors in technique and
       judgment made by Thomas Huddleston, CRNA and the staff of Texas Institute for
       Surgery, ASC.

                                          CAUSATION

       In the trial court and on appeal, TIS argued Dr. Ellis’s expert report failed to explain how

TIS’s breach of the standard of care proximately caused Carpenter’s damages. The report states

                                                –8–
the TIS staff breached the standard of care in two ways: (1) by holding Carpenter down while she

was moving on the table and (2) “by not suggesting to Dr. Rodrigue that the pain experienced by

[Ms.] Carpenter was due to needle trauma.” Carpenter’s damages resulted from “a focal area of

intrinsic injury to the spinal cord,” which Dr. Ellis described as “needle trauma and injection into

the spinal cord.”

       TIS argues that Dr. Ellis’s report states the pain that started Carpenter’s writhing was the

needle trauma from Dr. Rodrigue’s misplacement of the needle. TIS asserts, “Dr. Ellis opines that

the ‘holding down’ of Carpenter came about due to the patient writhing in pain—pain he believes

occurred from ‘needle trauma to the spinal cord.’” Since the needle trauma started her writhing,

TIS asks, “how did the ‘holding down’ of Carpenter cause a needle to penetrate her spinal cord?

Or conversely, how would a lack of ‘holding down’ have avoided the injury?” TIS asserts the

report “never connects the dots and never links TIS’s conduct to Carpenter’s harm.” Instead, TIS

argues, “the breach of holding down the patient occurred after the injury occurred. . . . If the breach

came about after the injury, by definition, it did not cause the injury.” The report’s statement that

the staff breached the standard of care by not suggesting to Dr. Rodrigue that Carpenter’s writhing

was due to needle trauma is subject to the same arguments. If the writhing was caused by needle

penetration and injection, then any statements the staff should have made to Dr. Rodrigue after

Carpenter began writhing would have been made after the injury occurred and could not be a

proximate cause of the injury. TIS asserts the trial court could not find the expert report sufficient

unless it improperly drew inferences to fill in these analytical gaps. See Patterson, 412 S.W.3d at

835–36.

       Although the connection between TIS’s conduct and Carpenter’s harm could have been

presented more clearly in the report, it is present.




                                                 –9–
       Key to TIS’s argument is its assertion that the staff did not hold Carpenter down until after

the needle penetrated her spinal cord. The report does not say that. The report, which includes

Dr. Rodrigue’s notes, states Carpenter “moved vigorously during the procedure (which she always

does).” The staff held her down, but she was writhing “even though we were holding her.” The

trial court could interpret the report as stating (1) Carpenter “moved vigorously,” (2) the staff held

her down, and (3) as they held her, her “mov[ing] vigorously” escalated to “writhing on the table.”

The report states, “The primary symptom of nerve contact is pain . . . ,” and “[i]f at any time a

patient begins to move one must consider the possibility of contact by the needle with the spinal

cord.” (Emphasis added.) The report does not state when the needle actually penetrated the spinal

cord as opposed to contacting it or when the injection into the spinal cord occurred. But the report

does state, “a moving patient being restrained can result in needle movement into the substance of

the spinal cord. The needle can easily penetrate the spinal cord during the events described in Ms.

Carpenter’s medical record.” (Emphasis added.) The report also states the staff “held Ms.

Carpenter down during a spinal injection, despite the knowledge that such behavior could cause

personal injury. . . . Had the staff . . . not restrained Ms. Carpenter during the procedure, her injury

could have been avoided.”

       The trial court could have read the report as stating needle contact with the spinal cord

created the pain that caused Carpenter to “move[] vigorously.” Because Carpenter “always”

“moved vigorously” during these procedures, the trial court could conclude that penetration had

not yet occurred. Due to her vigorous movement, the staff restrained her. As the staff held her

down, she was “writhing on the table,” which “indicates the distinct possibility that she was

experiencing severe pain, such as that associated with needle trauma to the spinal cord.” The trial

court could conclude the “needle trauma to the spinal cord” as she was writhing was the “injection

into the spinal cord.” The trial court could further read the report as stating that Carpenter’s injury

                                                 –10–
could have been avoided if the staff had not restrained her when she was initially moving and had

instead advised Dr. Rodrigue to terminate the procedure and assess Carpenter’s condition before

penetration of the needle and injection into the spinal cord occurred. If the report is read in that

manner, the temporal contradictions asserted by TIS do not arise. Such a reading does not require

adding any information, drawing improper inferences, or engaging in any impermissible “gap

filling.”

        Dr. Ellis’s report provides sufficient information to inform TIS of the specific conduct that

Carpenter has called into question and to provide a basis for the trial court to conclude that the

claims have merit. Therefore, Dr. Ellis’s report represents a good-faith effort to comply with

section 74.351. See Palacios, 46 S.W.3d at 879. We conclude the trial court did not abuse its

discretion by denying TIS’s motion to dismiss. We overrule TIS’s issue on appeal.

                                         CONCLUSION

        We affirm the trial court’s order denying TIS’s motion to dismiss.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE

180273F.P05




                                                –11–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 TEXAS INSTITUTE FOR SURGERY,                          On Appeal from the 134th Judicial District
 L.L.P., Appellant                                     Court, Dallas County, Texas
                                                       Trial Court Cause No. DC-17-04230.
 No. 05-18-00273-CV          V.                        Opinion delivered by Justice Myers.
                                                       Justices Osborne and Nowell participating.
 ANGELA M. CARPENTER, Appellee

     In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.

       It is ORDERED that appellee ANGELA M. CARPENTER recover her costs of this
appeal from appellant TEXAS INSTITUTE FOR SURGERY, L.L.P.


Judgment entered this 4th day of March, 2019.




                                                –12–
