                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-08-437-CV


ROBERT G. RANELLE, D.O.                                              APPELLANT

                                        V.

HERSCHEL EDWARD BEAVERS                                              APPELLEES
AND PAMELA BEAVERS
                                    ------------

           FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

                                 I. Introduction

      In this interlocutory appeal, Appellant Robert G. Ranelle, D.O. challenges

the trial court’s order denying his motion to dismiss Appellees Herschel and

Pamela Beaverses’ health care liability claims for the failure to file an adequate

expert report. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

     On May 29, 2008, the Beaverses filed health care liability claims against

Dr. Ranelle that arose from medical and surgical care he had provided to

Herschel. According to their fourth amended petition, the Beaverses sought to

recover damages from Dr. Ranelle for the following:

     On or about March 18, 2003, [Dr.] Ranelle performed surgery on
     Herschel Edward Beavers’s back. Before surgery, [Dr.] Ranelle
     represented to [Herschel] that the surgery was indicated because
     [Herschel] had a ruptured disc, herniated nucleus pulposis, or
     herniated disc at the L5-S1 level of his spine. This was a false
     statement by Dr. Ranelle and the truth that [Herschel] did not have
     this condition was never disclosed until Dr. Ranelle confessed his
     dishonesty in his deposition on March 28, 2008. [Herschel] would
     not have consented to the surgery had he known that he did not
     have a ruptured/herniated disc. As a result of Dr. Ranelle’s
     deception and the resultant surgery, [Herschel] suffered injuries and
     the [Beavers] have suffered damages.

     [Dr. Ranelle] violated the duty he owed to [Herschel] to exercise
     ordinary care and diligence exercised by other surgeons and
     healthcare providers in the same or similar circumstances and was
     negligent in that he:

           (1)   Performed unnecessary surgery;
           (2)   Failed to accurately interpret radiology studies;
           (3)   Negligently performed surgery; and
           (4)   Oversold the need for surgery.

     One or more of the above-mentioned acts and/or omissions, among
     others, by [Dr. Ranelle], was a proximate cause of injury and
     damages . . . .

     [Dr. Ranelle’s] conduct as described above included making
     misrepresentations as well as concealing information that [Dr.

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      Ranelle] had a duty to disclose. Such conduct constitutes fraud
      and/or constructive fraud and resulted in injuries to [Herschel] and
      damages to the [Beavers] . . . .

      As a result of the surgery performed by [Dr. Ranelle] on March 18,
      2003, [Herschel] suffered an assault and battery by [Dr.] Ranelle,
      since any consent was based on deception by [Dr.] Ranelle.

      The Beaverses timely served Dr. Ranelle with the curriculum vitae and

expert report of Duncan McBride, M.D., a board certified neurosurgeon. In his

report, Dr. McBride stated that Dr. Ranelle’s care of Herschel was below the

standard of care in two ways: (1) Dr. Ranelle was dishonest about Herschel’s

condition and (2) Dr. Ranelle failed to adequately pad and position Herschel’s

shoulder for surgery. He further stated that it was his opinion that the failure

of Dr. Ranelle to observe the standard of care was a proximate cause of

Herschel’s ongoing back problems, Herschel’s torn rotator cuff, and all of the

consequences that naturally flow from the back surgery and surgery to repair

the torn rotator cuff.

      Dr. Ranelle timely filed his motion to dismiss with prejudice, objecting to

Dr. McBride’s report on the grounds that it failed to set forth the standard of

care, breach, and causation elements of the health care liability claims alleged

against him, including the theories of negligence, battery, fraud, constructive

fraud, and lack of informed consent. After a hearing on the matter, the trial

court denied Dr. Ranelle’s motion. This appeal followed.

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                        III. Adequacy of Expert Report

      In his sole issue, Dr. Ranelle argues that the trial court abused its

discretion by concluding that Dr. McBride’s expert report was legally sufficient

because the report (1) failed to address the elements of the common law

battery claim alleged by the Beaverses against Dr. Ranelle; (2) failed to address

Herschel’s pre surgery symptoms, their degree of severity, or why such

symptoms did not merit, per the standard of care, going forward with the

surgery; and (3) failed to provide information on how Herschel was actually

padded or positioned during the surgery, or any causal relationship between

such padding and positioning and Herschel’s rotator cuff injury.

A. Standard of Review

      A trial court’s ruling concerning an expert report filed under section

74.351 (formerly article 4590i, section 13.01) of the Medical Liability and

Insurance Act is reviewable under the abuse of discretion standard.         Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.

2001); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2008).

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. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An

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appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same

circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

558 (Tex. 1995).

B. Applicable Law

      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. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351. If the claimant does not serve an

expert report 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).

      A defendant may challenge the adequacy of a report by filing a motion to

dismiss. Id. § 74.351(l). 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. Id.

While the expert report “need 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

                                        5
Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878 (construing former art. 4590i,

§ 13.01).

      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

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

But 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) to inform the defendant of the specific conduct the plaintiff has called into

question; and (2) to 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

                                        6
v.   Fithian,   No.   14-07-00996-CV,    2008   WL    2579824,     at   *4   (Tex.

App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see also Tex. R.

Evid. 703 (providing that an expert may draw inferences from the facts or data

in a particular case); Tex. R. Evid. 705 (providing that expert may testify in

terms of opinions and inferences).

       1. Battery Claim

       In response to Dr. Ranelle’s argument that Dr. McBride’s expert report

failed to address the elements of the Beaverses’ claim for battery, the

Beaverses argue that Dr. McBride’s expert report meets the statutory

requirements and that requiring anything more would go to the merits of their

case. We agree.

       The tort of battery has been recognized when a physician, with no

justification or excuse, performs an operation without the express or implied

consent of the patient. Gravis v. Physicians & Surgeons Hosp. of Alice, 427

S.W.2d 310, 311 (Tex. 1968). However, in Murphy, the Texas supreme court

held that the failure to obtain consent does not automatically result in a battery

because “[t]here may be reasons for providing treatment without specific

consent that do not breach any applicable standard of care.” See Murphy v.

Russell, 167 S.W.3d 835, 838 (Tex. 2005). “The existence or nonexistence

of such reasons is necessarily the subject of expert testimony.” Id.

                                        7
      Here, Dr. McBride states in his expert report that one of the standards of

care for a spine surgeon in this type of case is “[b]eing truthful about a

patient’s condition.”    He further states that “[b]ecause the risks and

consequences of spinal surgery are serious, it is important to avoid performing

surgery when the reason for the surgery is dishonestly stated.” Dr. McBride

opined in his report that Dr. Ranelle’s care of Herschel fell below the standard

of care based on the following:

      1) Dr. Ranelle told [Herschel] and his insurance company that he
      needed surgery because [Herschel] had a herniated disc, when in
      fact [Herschel] did not have a herniated disc. Dr. Ranelle admits in
      his deposition that he told [Herschel] that he had a herniated disc
      or herniated nucleus pulposis when he knew this in fact was not
      the case. Patients rely on their surgeons to be truthful about their
      condition and need for surgery. Telling a patient and his insurance
      company that he has a herniated disc that needs surgery is
      overstating the patients condition and is misleading because the
      success rate for leg pain relief after spine surgery for an annular
      tear is much lower than spine surgery for a herniated disc.

      He concluded his report by stating that the surgery “would not have been

performed if Dr. Ranelle had been honest” and it was his opinion that Dr.

Ranelle’s failure to observe the standard of care was a proximate cause of

Herschel’s injuries. Specifically, Dr. Ranelle’s actions were the proximate cause

of

      [Herschel’s] ongoing back problems and all of the consequences
      that naturally flow from performing a surgery that would not have
      been performed if Dr. Ranelle had been honest.             These

                                       8
      consequences include hospitalization, pain associated with recovery
      from the trauma of surgery, limitation in activities and additional
      medical care including in this case, physical therapy and additional
      surgery to remove the bone stimulator. Additionally, [Herschel]
      suffered a shoulder injury as a result of Dr. Ranelle’s failure to
      properly position and pad [Herschel] requiring surgery for a torn
      rotator cuff.

      Dr. McBride’s expert report is not required to meet the same standards

as evidence offered in summary judgment proceedings or in a trial. See Bowie

Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Therefore, we

agree with the Beaverses that the trial court could have reasonably found that

Dr. McBride’s expert report discusses the standard of care, breach, and causal

link with sufficient specificity to fulfill the two required purposes of section

74.351: (1) to inform Dr. Ranelle of the specific conduct that the Beaverses

have called into question and (2) to provide a basis for the trial court to

conclude that the claim has merit. See id. at 52; Palacios, 46 S.W.3d at 879.

To require anything more would go to the merits of their case. See Hamilton

v. Durgin, No. 10-08-00146-CV, 2008 WL 4816624, at *2 (Tex. App.—Waco

Nov. 5, 2008, no pet.) (mem. op.) (holding that the expert report was sufficient

and that the defendants were arguing the merits of the claim by relying on

documents and information outside of the reports); Arboretum Nursing &

Rehab. Ctr. of Winnie, Inc. v. Isaacks, No. 14-07-00895-CV, 2008 WL

2130446, at *6 (Tex. App.—Houston [14th Dist.] May 22, 2008, no pet.)

                                       9
(mem. op.) (holding that an expert report that failed to address several

contentions in appellee’s petition was sufficient for purposes of the required

statutory elements). Accordingly, we overrule that portion of Dr. Ranelle’s sole

issue pertaining to the Beaverses’ battery claim.

      2. Negligence: Unnecessary Surgery

      In response to Dr. Ranelle’s argument that Dr. McBride’s expert report

failed to state, or establish, that the surgery itself was unnecessary, the

Beaverses assert that Dr. Ranelle waived this complaint or, in the alternative,

that the report was sufficient to provide a basis for the trial court to conclude

that the surgery was unnecessary. We disagree on the matter of waiver but

agree on the issue of sufficiency.

      First, the Beaverses assert that Dr. Ranelle never complained in his motion

to dismiss that Dr. McBride’s report failed to state or establish unnecessary

surgery and therefore Dr. Ranelle has failed to preserve this issue for appeal.

In support of their argument, the Beaverses direct our attention to Plemons, in

which we recently reiterated that a complaint on appeal must be the same as

that presented in the trial court.   Plemons v. Harris, No. 02-08-00326-CV,

2009 WL 51290, at *3 (Tex. App.—Fort Worth Jan. 8, 2009, no pet.) (mem.

op.). Here, however, although Dr. Ranelle’s motion to dismiss did not contain

the words “unnecessary surgery,” it did contain the following complaint:

                                       10
      [T]here is no discussion whatsoever of [Herschel] presenting
      symptoms, their degree or severity, and why such symptoms, of
      themselves, did not merit, per the standard of care, going forward
      with this particular surgical procedure. Moreover, there is no
      discussion of the results of the surgery in terms of whether
      [Herschel] found relief from the symptoms that led to the surgery
      in the first place.

Dr. Ranelle’s motion asserts that the Beaverses failed to address in the expert

report that Herschel’s symptoms did not require going through with the surgery

and also that the surgery did not benefit Herschel. In other words, Dr. Ranelle’s

complaint asserts that the Beaverses failed to address in the expert report that

Herschel’s surgery was unnecessary.         Therefore, because the argument of

unnecessary surgery is apparent from the context of Dr. Ranelle’s complaint,

we hold that he has preserved this issue for appeal. Tex. R. App. P. 33.1(a).

      The Beaverses also argue that Dr. McBride’s expert report was sufficient

to provide the trial court with the basis to conclude that Herschel’s surgery was

unnecessary.

      In the report, Dr. McBride states that one of the standards of care for a

spine surgeon in this type of case is “[b]eing truthful about a patient’s

condition” and that “[b]ecause the risks and consequences of spinal surgery are

serious, it is important to avoid performing surgery when the reason for the

surgery is dishonestly stated.” He further opined that “[p]atients rely on their

surgeons to be truthful about their condition and need for surgery.”

                                       11
      Dr. McBride’s report then states his opinion of the manner in which Dr.

Ranelle breached the standard of care. He states that Dr. Ranelle admitted, in

his deposition, that he had told Herschel that he had a ruptured disc and needed

surgery but then admitted that Herschel did not, in fact, have a ruptured disc.

      Finally, Dr. McBride’s report details how Dr. Ranelle’s dishonesty led to

Herschel having a surgery that was unnecessary and the injuries that resulted

from the unnecessary surgery. Dr. McBride states,

      It is my opinion based on reasonable medical probability that the
      failure of Dr. Ranelle to observe the standards of care in Herschel
      Beavers’ case was a proximate cause of the [sic] Mr. Beavers’
      ongoing back problems and all of the consequences that naturally
      flow from performing a surgery that would not have been
      performed if Dr. Ranelle had been honest. [Emphasis added.]2

      Therefore, after viewing the information set forth within the four corners

of Dr. McBride’s report, we hold that the trial court did not abuse its discretion

by determining that Dr. McBride’s report provides a fair summary of his expert

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” as to the Beaverses’ unnecessary surgery claim. See Tex.




      2
       … Because we previously listed the specific injuries suffered by Herschel
as a result of the surgery, we need not list them again.

                                       12
Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878.

Furthermore, the trial court did not abuse its discretion by determining that Dr.

McBride’s report constitutes an objective good faith effort to satisfy the two

purposes of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351.

Accordingly, we overrule that portion of Dr. Ranelle’s sole issue pertaining to

the Beaverses’ claim for unnecessary surgery.

      3. Negligence: Rotator Cuff Injury

      In response to Dr. Ranelle’s argument that Dr. McBride’s expert report

was conclusory as to Herschel’s rotator cuff injury, the Beaverses assert that

Dr. Ranelle’s admission, in his deposition, that Herschel suffered a torn rotator

cuff as a result of his positioning during the surgery, is sufficient to conclude

that the Beaverses’ claim has merit. We agree.

      In his expert report, Dr. McBride states that one of the standards of care

in this type of case is “[p]ositioning and padding the patient during lumbar spine

surgery so his shoulders are protected from injury.” He further states that Dr.

Ranelle could have prevented Herschel’s rotator cuff injury with proper

positioning and padding. He then provides his opinion on Dr. Ranelle’s breach

of the standard of care by referring to Dr. Ranelle’s admission “that Herschel

Beavers suffered a torn rotator cuff as a result of the positioning for the spine

surgery.” Finally, Dr. McBride’s report provides assertions as to the causal

                                       13
relationship between Dr. Ranelle’s negligence and Herschel’s torn rotator cuff

that are not merely conclusory in light of Dr. Ranelle’s admission. He states

that Herschel “suffered a shoulder injury as a result of Dr. Ranelle’s failure to

properly position and pad [Herschel] requiring surgery for a torn rotator cuff.”

      Thus, Dr. McBride’s report summarizes his opinions as to the applicable

standard of care, the manner in which Dr. Ranelle failed to meet the standard,

and the causal relationship between Dr. Ranelle’s negligence and Herschel’s

torn rotator cuff. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). We

therefore hold that the trial court did not abuse its discretion by determining

that Dr. McBride’s report complied with section 74.351 as to the Beaverses’

claim for Herschel’s torn rotator cuff, and accordingly we overrule that portion

of Dr. Ranelle’s sole issue pertaining to Herschel’s rotator cuff injury.

                                 IV. Conclusion

      Having overruled Dr. Ranelle’s sole issue in its entirety, we affirm the trial

court’s order denying his motion to dismiss.




                                             BOB MCCOY
                                             JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

CAYCE, C.J. dissents without opinion.

DELIVERED: April 30, 2009


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