                                          In The
                                     Court of Appeals
                            Seventh District of Texas at Amarillo

                                             No. 07-18-00341-CV


                            STEFFAN SCHERER, DDS, MS, APPELLANT

                                                       V.

                                     MELINDA GANDY, APPELLEE

                               On Appeal from the 72nd District Court
                                       Lubbock County, Texas
              Trial Court No. 2017-526,364, Honorable Ruben Gonzales Reyes, Presiding

                                             February 28, 2019

                                    MEMORANDUM OPINION

                       Before QUINN, C.J.,1 and CAMPBELL and PARKER, JJ.


        This is an interlocutory appeal from an order finding an expert report sufficient to

proceed with a dental malpractice case.2 Appellant, Steffan Scherer, DDS, MS, contends

that dismissal of the negligence claims asserted against him by appellee, Melinda Gandy,

is mandated because the expert reports she filed fail to meet the statutory requirements.


        1   Chief Justice Brian Quinn, not participating.
        2 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2008) (allowing interlocutory appeal
when trial court “denies all or part of the relief sought . . . under Section 74.351(b)”).
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2017).3 We affirm the trial

court’s denial of Scherer’s motion to dismiss.


                                               Background


         Dr. Scherer, an endodontist, performed a root canal on Gandy on June 1, 2015,

without incident. During that procedure, he used Septocaine as an anesthetic. On June

29, 2015, Dr. Scherer performed a root canal on another of Gandy’s teeth. This time, he

used Prilocaine as an anesthetic. According to Gandy’s pleadings, during this second

procedure, she experienced what felt to her like several lightning bolts hitting the side of

her face. She cried out in pain, but Dr. Scherer assured her that this was common and

continued the root canal. Gandy’s pain continued throughout the procedure and into the

following days. She reported her pain, numbness, and severe headaches to Dr. Scherer

on July 1 and again on July 2. Dr. Scherer advised her to continue alternating hot and

cold packs and rinsing with salt water. He asserted that the root canal was “clean.”

Gandy then consulted her regular dentist and another endodontist, which led to an

evaluation by a neurologist. Neurological testing indicated an injury to Gandy’s trigeminal

nerve.


         Gandy filed suit, alleging that Dr. Scherer was negligent in his provision of dental

care. Pursuant to Chapter 74 of the Civil Practice and Remedies Code, Gandy served

Dr. Scherer with the expert report and curriculum vitae of Maria C. Maranga, DDS, on

December 12, 2017. Dr. Scherer filed objections to Dr. Maranga’s report and a motion to

dismiss.     The trial court denied the motion to dismiss, but sustained Dr. Scherer’s


         3 Further references to provisions of the Texas Civil Practice and Remedies Code will be to “section
_” or § _.”

                                                     2
objections and granted a thirty-day extension to cure deficiencies in the report. See

§ 74.351(c) (providing that court may grant one thirty-day extension of time to the claimant

to cure the deficiency). Gandy then served a supplemental report by Dr. Maranga, to

which Dr. Scherer objected, filing another motion to dismiss. Following a hearing, the trial

court overruled Dr. Scherer’s objections and denied the motion to dismiss. Dr. Scherer

filed this interlocutory appeal, alleging that the trial court abused its discretion by

concluding the reports were sufficient.


                                   Standard of Review


       In reviewing the trial court’s decision regarding the adequacy of an expert report,

we apply the abuse of discretion standard. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41,

44 (Tex. 2013). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or

without reference to any guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526,

539 (Tex. 2010).    An appellate court cannot conclude that a trial court abused its

discretion merely because the appellate court would have ruled differently in the same

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

curiam).


                               Expert Report Requirements


       Section 74.351 requires any person who brings a health care liability claim to

provide an expert report, within 120 days of filing the claim, for each physician or health

care provider against whom a claim is asserted. § 74.351(a). An expert report means a

written report that provides a fair summary of the expert’s opinions regarding (1)

applicable standards of care, (2) the manner in which the care rendered by the physician


                                             3
or health care provider failed to meet the standards, and (3) the causal relationship

between that failure and the injury, harm, or damages claimed. § 74.351(r)(6). A report

satisfies these requirements when it provides (1) enough information to inform the

defendant of the specific conduct that is questioned, and (2) a basis for the trial court to

conclude that the claim has merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630

(Tex. 2013). If a sufficient expert report is not filed within the requisite period, the court

is required to enter an order dismissing the claim, with prejudice. See § 74.351(b).


                                               Analysis


        Dr. Scherer objected that Dr. Maranga’s reports4 fail to sufficiently explain the

standard of care, how it was breached, and a thorough analysis regarding causation. He

also alleges that the complaints in the report do not match the claims in Gandy’s petition.

We will address his objections in turn.


Standard of Care


        First, Dr. Scherer alleges that Dr. Maranga’s reports fail to articulate the standard

of care. The expert report must state the applicable standard of care as well as the

manner in which the health care provider failed to meet that standard of care.

§ 74.351(r)(6).     Whether a defendant breached the standard of care “cannot be

determined absent specific information about what the defendant should have done

differently.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880



        4 When, as here, an expert report has been supplemented, courts have considered both the original

and supplemental reports in conducting an analysis of the adequacy of the reports. See, e.g., Packard v.
Guerra, 252 S.W.3d 511, 515-16, 534-35 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (considering
previously filed reports that were refiled and supplemented). We will consider Dr. Maranga’s original and
supplemental reports together in conducting our analysis.

                                                   4
(Tex. 2001). The expert is not required to give a full statement of the standard of care

and how it was breached, but she must “set out what care was expected, but not given.”

Id.


      Dr. Maranga’s original report stated the following:

      The standard of care requires that healthcare providers recognize an
      anesthetic reaction before and during and after treatment on a patient. After
      careful assessment of the given material, I believe that Dr. Scherer deviated
      from this standard by choosing an anesthetic that can be toxic in some
      patients (he had previously used another anesthetic for Mrs. Gandy’s other
      root canal) and additionally by failing to recognize that a reaction to the
      anesthetic took place thus delaying treatment for the reaction by two weeks.

      Dr. Maranga’s supplemental report was more expansive. Regarding the use of

Prilocaine, she explained: “It is a deviation from the accepted standard of care for an

Endodontist/Dentist to use Prilocaine for patients undergoing dental procedures, root

canals included.” She continued, “Dr. Scherer breached the standard of care in using

Prilocaine on Mrs. Gandy, as opposed to another anesthetic, such as 4% Septocaine like

he used in the root canal on tooth number 14 on June 1, 2015.” She later stated that

Prilocaine “is known to be toxic in patients and has been cited by authors and literature

previously stated as causing trigeminal neuralgia, the same condition suffered by Mrs.

Gandy.” She reiterated, “It is for this reason that it is a deviation from the accepted

standard of care for an Endodontist/Dentist to use Prilocaine for patients undergoing

dental procedures, root canals included.”


      Dr. Maranga also observed that Gandy cried out in pain soon after Dr. Scherer

administered the Prilocaine, and “Dr. Scherer responded to Mrs. Gandy saying that it’s

alright [sic], that it is very common, and that it just meant he was getting close to the

nerve. Mrs. Gandy was clearly not alright [sic], as the symptoms she was exhibiting are

                                            5
classic symptoms of a nerve injury, more specifically, a trigeminal nerve injury.” She

opined, “At that point, the standard of care required Dr. Scherer to recognize that an

anesthetic reaction was occurring and stop the procedure. Dr. Scherer breached the

standard of care in failing to recognize, based on Mrs. Gandy’s symptoms . . . that Mrs.

Gandy was suffering from a nerve injury.” Later in her report, Dr. Maranga adds, “If and

when a patient cries out in pain, the most logical assessment by a doctor is to stop the

procedure, assess, evaluate and treat the new problem.”


       On appeal, Dr. Scherer contends that the reports (1) contradict themselves about

the standard of care for use of Prilocaine, and (2) fail to explain how an endodontist/dentist

should recognize a complication from the anesthetic. Dr. Scherer’s argument that the

reports are contradictory regarding the standard of care is based on Dr. Maranga’s

statements that (1) the use of Prilocaine on a patient undergoing a root canal is a deviation

from the standard of care but also (2) “[c]onsiderable caution must be followed when and

if” Prilocaine is used as an anesthetic. Dr. Scherer argues that if the use of Prilocaine is

prohibited, one should not need to use “considerable caution” when using the drug or

“recognize complications” of it.    He concludes that “Dr. Maranga’s standard-of-care

statement based on prohibition is inadequate because she admits that providers uses

[sic] the anesthetic.”


       At the outset, we must address Gandy’s contention that this particular objection

has been waived by Dr. Scherer, as it was not made within twenty-one days of receipt of

Dr. Maranga’s supplemental report. See, e.g., Bakhtari v. Estate of Dumas, 317 S.W.3d

486, 493 (Tex. App.—Dallas 2010, no pet.) (any objections to expert report other than

objections made within twenty-one-day period are waived); Williams v. Mora, 264 S.W.3d

                                              6
888, 890-91 (Tex. App.—Waco 2008, no pet.) (same). After reviewing the record, we

conclude that Dr. Scherer has not waived consideration of this complaint. He timely

objected that Dr. Maranga’s expert reports “failed to articulate the standard of care,” and

he specifically alleged that the only “identifiable and explicitly stated standard of care”

was Dr. Maranga’s assertion that “the standard of care required Dr. Scherer to recognize

that an anesthetic reaction was occurring and stop the procedure.” In our view, these

objections to potential deficiencies in Dr. Maranga’s statements on the standard of care

were adequate to encompass Dr. Scherer’s complaint.


       However, we disagree with Dr. Scherer’s claim that Dr. Maranga’s seemingly

inharmonious declarations render her statement on the standard of care deficient. Dr.

Maranga’s recognition that some providers use Prilocaine does not somehow invalidate

her position that such use is not recommended. Moreover, the trial court could have

reasonably found that the general statement that considerable caution is required when

Prilocaine is used does not directly contradict the specific assertion that Prilocaine should

not be used for patients, such as Gandy, undergoing dental procedures. Here, Dr.

Maranga identified Prilocaine as an anesthetic “that can be toxic” and clearly called into

question its use in a patient undergoing a root canal. The trial court had the discretion to

resolve inconsistencies, if any, in its review of Dr. Maranga’s report. See Van Ness v.

ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam) (stating that trial

court has discretion to review expert report, sort out its contents, resolve any

inconsistencies in it, and determine whether it demonstrates good-faith effort to show

claimant’s claims have merit).




                                             7
       Dr. Scherer’s second complaint regarding the standard of care is that Dr. Maranga

did not explain the specific steps a healthcare provider should take to recognize an

anesthetic reaction. The Texas Supreme Court does not require an expert report to detail

specific steps. See Laurel Ridge Treatment Ctr. v. Garcia, No. 04-12-00098-CV, 2012

Tex. App. LEXIS 7243, at *7 (Tex. App.—San Antonio Aug. 29, 2012, pet. denied) (mem.

op.) (citing Palacios, 46 S.W.3d at 879, in rejecting argument that expert report was

required to detail “exact steps” for providing safe environment). Rather, the expert report

is required to inform a defendant of the “specific conduct” that is called into question.

Here, Dr. Maranga’s supplemental report expressly states that “the symptoms [Gandy]

was exhibiting are classic symptoms of nerve injury,” indicating that Gandy’s symptoms

were problematic and should have prompted further diagnosis and treatment.                Dr.

Maranga further asserted, “If and when a patient cries out in pain, the most logical

assessment by a doctor is to stop the procedure, assess, evaluate and treat the new

problem before moving forward with the day’s schedule.”


       Dr. Scherer takes issue with Dr. Maranga’s reliance on Gandy’s cry of pain; he

suggests that because a root canal is a painful procedure, there was nothing about

Gandy’s crying that should have triggered recognition that there was a problem. Our

inquiry is not into the believability of the standards articulated by Dr. Maranga, but whether

her opinions constitute a good-faith effort to provide a fair summary of the necessary

elements. See Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 516-17

(Tex. 2017) (per curiam).


       A fair summary is something less than a complete statement of the applicable

standard, although reasonable minds may differ in determining just how much is required.

                                              8
See Palacios, 46 S.W.3d at 880. Bearing this in mind, we conclude that the trial court

was within its discretion to conclude that Dr. Maranga’s reports satisfied the good-faith

effort requirement as to the standard of care because the reports inform Dr. Scherer of

the specific conduct called into question: his use of Prilocaine in treating Gandy and his

continuation of the root canal in the face of an indication that Gandy was suffering an

adverse event. See Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018); see also IPH

Health Care Servs., Inc. v. Ramsey, No. 01-12-00390-CV, 2013 Tex. App. LEXIS 2985,

at *37-39 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. op.) (trial court

could have reasonably concluded expert report was a “good-faith effort” where report

alleged failure to recognize and respond to severe allergic reaction).


Breach of the Standard of Care


      Next, Dr. Scherer alleges that Dr. Maranga’s reports fail to provide anything other

than a conclusion regarding any breach of the standard of care. Dr. Scherer contends

that Dr. Maranga fails to detail why Dr. Scherer breached the standard of care by using

Prilocaine with Gandy if Prilocaine is used in other patients and further fails to explain

how Dr. Scherer should have recognized an anesthetic or nerve complication.


      The reports’ sufficiency as to the breach element correlates to their sufficiency as

to the standard of care. See Baty, 543 S.W.3d at 697. Again, an expert report need only

provide a “fair summary” of what the defendant should have done differently. Palacios,

46 S.W.3d at 880. Dr. Maranga’s reports assert that Dr. Scherer should have used an

anesthetic other than Prilocaine, should have recognized Gandy’s cry of pain as a

symptom of an anesthetic reaction, and should have stopped the procedure. While we



                                            9
recognize the reports could have included additional details to support Dr. Maranga’s

position, at this stage of the litigation, the question is whether the reports constitute a

good-faith effort to comply with the expert report requirement. See Miller, 536 S.W.3d at

516-17. We cannot say the trial court’s determination was an abuse of discretion.


Causation


       Finally, Dr. Scherer contends that Dr. Maranga’s discussion of causation is

conclusory. As to the use of Prilocaine, Dr. Maranga opined that, in all reasonable

medical probability, Dr. Scherer’s administration of Prilocaine caused Gandy’s trigeminal

neuralgia. Dr. Maranga’s reports also state that Dr. Scherer used another anesthetic on

Gandy without any problem, Gandy’s symptoms arose following the administration of

Prilocaine, Gandy exhibited “classic symptoms” of a nerve injury, medical studies show

Prilocaine is known to cause trigeminal neuralgia, and Dr. Maranga agrees with Gandy’s

subsequent treaters who diagnosed Gandy as suffering from trigeminal neuralgia.


       Dr. Scherer states, “Dr. Maranga did not explain why the medication causes this

type of injury, or more specifically why one could conclude that was the case here.” Dr.

Maranga was not required to provide detailed, technical explanations. An expert report

need not marshal all the claimant’s proof necessary to prove causation at trial, nor must

it anticipate or rebut all possible defensive theories that may be presented to the trial

court. Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013,

no pet.). The expert must simply provide some basis that the defendant’s act or omission

proximately caused injury, explain the basis of her statements, and link her conclusions

to the facts. Bowie Mem’l Hosp., 79 S.W.3d at 52-53.



                                            10
       As to Dr. Scherer’s alleged failure to recognize an anesthetic reaction, Dr. Maranga

opined that this failure resulted in Gandy’s undergoing the duration of the root canal “in

extreme pain as a result of the ongoing nerve injury” and in her “delay in proper

treatment.” In his objections to the expert reports, Dr. Scherer asserted that Dr. Maranga

did not explain why a delay in treatment is a problem or how it resulted in an injury. We

disagree. Dr. Maranga opined that if the anesthetic reaction had been recognized and

the procedure halted, Gandy would have avoided the extreme pain of undergoing a root

canal while suffering an ongoing nerve injury. She further stated that, after Gandy was

assured by Dr. Scherer that her pain was nothing unusual, Gandy was properly diagnosed

by other practitioners and obtained some relief. The trial court could have reasonably

concluded that these opinions were sufficient to satisfy the causation element. See, e.g.,

In re Barker, 110 S.W.3d 486, 491 (Tex. App.—Amarillo 2003, orig. proceeding) (expert

report sufficient because it explained negligent failure to recognize medical condition and

delay in treatment increased severity of plaintiff’s injuries).


       Dr. Scherer also asserts that Dr. Maranga’s reports fail to demonstrate that

Gandy’s injury was a foreseeable result of the claimed breaches of the standard of care.

An expert report “need not use the words ‘proximate cause,’ ‘foreseeability,’ or ‘cause in

fact,’” and its adequacy is not dependent on its use of any magic words. Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017) (citing Bowie Mem’l

Hosp., 79 S.W.3d at 53). Here, Dr. Maranga’s report indicates that using Prilocaine in

dental procedures could result in harm and that failing to stop the root canal procedure

upon signs of an adverse event could result in harm.              The trial court could have

reasonably concluded that the report represents a good-faith effort to demonstrate that


                                              11
an endodontist would have anticipated that there was a danger associated with using

Prilocaine on Gandy and with failing to halt the procedure on a patient with Gandy’s

symptoms. See Miller, 536 S.W.3d at 515 (foreseeability requirement satisfied where

report made clear that failing to identify a lodged dental bridge and alert appropriate

personnel could result in harm).


Failure to Address Pleadings


       Dr. Scherer’s final criticism of Dr. Maranga’s expert reports is that the complaints

in the reports do not match the claims in Gandy’s petition, with the result that the expert

reports cannot fulfill their purpose of showing that Gandy’s claims have merit.


       In the “cause of action” section of her original petition, Gandy states that she is

suing due to the injuries she suffered “as a result of dental negligence.” She then sets

forth the factual background of her treatment by Dr. Scherer and subsequent dental care

providers. Within this narrative, she alleges, “When this case is tried, the evidence will

show that Dr. Scherer provided overly aggressive force during the root canal procedure,

permanently injuring [her] nerve.” In a more general statement, she asserts, “When this

case is tried, the evidence will show that the Defendant, Dr. Steffan Scherer’s acts and

omissions fell below the standard of care for a dentist, and constituted negligence . . . .”

Dr. Scherer maintains that, because Dr. Maranga’s reports only address his use of the

anesthetic and the alleged failure to recognize a complication, while Gandy’s pleadings

only advance the theory that he used too much force, not that he used the incorrect

anesthetic or that he did not recognize a complication from the anesthetic, the expert

reports fail to demonstrate that Gandy’s claims have merit.



                                            12
       Gandy points out that Dr. Scherer has raised this argument for the first time on

appeal. As noted above, objections to an expert report must be made within twenty-one

days of receipt of the report; otherwise, they are waived. Bakhtari, 317 S.W.3d at 493;

Williams, 264 S.W.3d at 890-91.


       In his objections filed with the trial court, Dr. Scherer made specific challenges to

the adequacy of Dr. Maranga’s reports as to her opinions on the applicable standards of

care, Dr. Scherer’s alleged breaches of the standards, and the causal relationship

between any breach and Gandy’s injuries. Dr. Scherer did not complain that Gandy’s

allegation of dental negligence did not encompass the allegedly negligent acts and

omissions highlighted in Dr. Maranga’s reports, nor did he complain that the contentions

in the reports regarding the use of Prilocaine and Gandy’s adverse reaction to it failed to

show that her claim of an “overly aggressive root canal treatment” had merit. Dr. Scherer

contends that his general objection that Gandy “failed to provide a basis for [the] trial court

to conclude that her case has any merit” served to preserve the specific complaint he now

raises on appeal. We disagree. His general objection did not apprise the trial court of

this specific challenge to an alleged lack of correlation between Gandy’s pleadings and

her expert’s reports. See Maxwell v. Martin, No. 14-11-00392-CV, 2012 Tex. App. LEXIS

1069, at *22-23 (Tex. App.—Houston [14th Dist.] Feb. 9, 2012, no pet.) (mem. op.) (“We

cannot hold the trial court abused its discretion by determining Dr. Glass adequately

demonstrated that Martin’s claims have merit despite the purported deficiencies in his

report cited by Dr. Maxwell on appeal when Dr. Maxwell did not specifically inform the

court of those deficiencies.”). Therefore, this objection has been waived. Bakhtari, 317

S.W.3d at 493; Williams, 264 S.W.3d at 890-91.


                                              13
                                      Conclusion


      We overrule Dr. Scherer’s issue on appeal and affirm the trial court’s order denying

his motion to dismiss.


                                                       Judy C. Parker
                                                          Justice




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