File: 061104HF - From documents
transmitted: 11/09/2007
REVERSED AND
REMANDED and Opinion Filed November 9, 2007.
In The
Court of Appeals
Fifth
District of Texas at Dallas
............................
No. 05-06-01104-CV
............................
BAYLOR UNIVERSITY MEDICAL CENTER, EDMUND SANCHEZ, M.D., and SRINATH
CHINNAKOTLA, M.D., Appellants
V.
HAROLD BIGGS, Individually
and as Executor of the Estate of CHERI JEAN WELLS BIGGS, Deceased, BRANDEN WELLS, and CHER BIGGS, Appellees
.............................................................
On Appeal from the 134th Judicial District
Court
Dallas County,
Texas
Trial Court Cause No.
05-11989
.............................................................
OPINION ON MOTION FOR
REHEARING
Before Justices Wright,
Lang-Miers, and Mazzant
Opinion By Justice
Lang-Miers
Appellants' motion for
rehearing is denied. We withdraw our opinion of August 28, 2007, and vacate our judgment of that date. This is now the opinion
of the Court.
In this interlocutory
appeal, Baylor University Medical Center; Edmund Sanchez, M.D.; and Srinath Chinnakotla, M.D. challenge the trial court's
order denying their motions to dismiss medical malpractice claims filed by
Harold Biggs, Individually and as Executor of the Estate of Cheri Jean Wells
Biggs, Deceased; Branden Wells, Cheri Biggs's son; and Cher Biggs, Cheri Biggs's
daughter (collectively, the family). Appellants argue the family's expert
reports do not comply with section 74.351(r)(6) of the Texas Civil Practice and
Remedies Code because the reports do not contain a fair summary of the experts'
opinions on the standard of care, alleged breach of that standard, and causal
link between any alleged breach and the injuries claimed. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2007). We agree.
Accordingly, we reverse the trial court's order denying appellants' motions to
dismiss, and we remand to the trial court for a determination of whether the
appellees' request for an extension should be granted. See id. §
74.351(c).
Background
On May 2,
2004, a patient of a Texarkana hospital died and his family donated his organs. Dr. Chinnakotla, a transplant surgeon at Baylor,
flew to Texarkana to harvest the donor's kidneys for transplantation at Baylor.
On May 4, one of the donor's kidneys was transplanted into Cheri Biggs. After
the surgery, Biggs's follow-up tests were normal until May 20, when Biggs began
to experience complications. After her discharge on May 27, Biggs experienced
additional complications, ultimately resulting in her hospitalization on June 1.
Biggs's condition continued to deteriorate, and she was pronounced dead on June
9. The parties agree that the medical records show Biggs died from the
transplantation of a rabies-infected kidney.
The family sued Baylor,
Dr. Sanchez, and Dr. Chinnakotla for medical malpractice. Contemporaneously with the filing of their lawsuit, and
pursuant to chapter 74 of the civil practice and remedies code, the family filed
two medical expert reports. Appellants objected to the reports, contending the
reports did not comply with section 74.351(r)(6) because they did not state the
applicable standard of care, the alleged breach, or how the alleged breach
proximately caused Biggs's death. In response to these objections, the family
provided supplemental expert reports. Appellants objected to the supplemental
expert reports on the same grounds, and Drs. Sanchez and Chinnakotla also
challenged the qualifications of one of the experts. Appellants each moved to
dismiss the lawsuit, contending the expert reports were insufficient under
section 74.351(r)(6) as a matter of law. The trial court denied appellants'
motions, and appellants filed this interlocutory appeal.
Claim of Failure to
Obtain Informed Consent
The family
alleges Biggs would have declined the kidney if appellants had informed her about the donor's high-risk social and medical
history, including specifically the information about his condition when he
presented at the emergency room and after he was admitted to the hospital. See Footnote 1
They also allege they were not told that the transplant center offered the
donor's kidneys to several hospitals and that those hospitals declined the
organs because of the donor's high-risk social history, recent incarceration,
and overall poor donor quality. The family further contends Baylor was negligent
by failing to develop, implement, and enforce effective policies and procedures
and/or standard guidelines for physicians regarding informed consent as it
applied to high-risk donors.
A claim based on failure
to obtain informed consent is governed by section 74.101 of the civil practice and remedies code:
In a suit against a
physician or health care provider involving a health care liability claim that
is based on the failure of the physician or
health care provider to disclose or adequately disclose the risks and hazards
involved in the medical care or surgical procedure rendered by the physician or
health care provider, the only theory on which recovery may be obtained is that
of negligence in failing to disclose the risks or hazards that could have
influenced a reasonable person in making a decision to give or withhold
consent.
Tex. Civ. Prac. & Rem. Code Ann. § 74.101 (Vernon 2005); see Binur
v. Jacobo,135 S.W.3d
646, 653 (Tex. 2004). See
Footnote 2
Because the Texas Medical
Disclosure Panel has not specifically determined what risks or hazards must be
disclosed prior to kidney transplant surgery, the parties agree that the duty in
this case is to “disclose the risks or hazards that could have influenced a
reasonable person in making a decision to give or
withhold consent.” See
Footnote 3
See Tex. Civ. Prac. & Rem. Code Ann. § 74.101. In such a situation,
“the plaintiff must prove by expert testimony that the medical condition
complained of is a risk inherent in the medical procedure performed” and the
“risk is material in the sense that it could influence a reasonable person's
decision to consent to the procedure.” Barclay v. Campbell, 704 S.W.2d 8,
9-10 (Tex. 1986).
The statute does not
define “risk” or “hazard.” The ordinary meaning of the term “risk” is “the possibility of loss, injury.” Webster's Third New
Int'l Dict. 1961 (1981); see Tajchman v. Giller, 938 S.W.2d 95, 98 (Tex.
App.-Dallas 1996, writ denied). The ordinary meaning of the term “hazard” is “a
thing or condition that might operate against success or safety.” Webster's
Third New Int'l Dict. 1041; see Giller, 938 S.W.2d at 98. A risk
or hazard is inherent in the informed consent context if it “is one which exists
in and is inseparable from the [procedure] itself.” Barclay, 704 S.W.2d
at 10 (inherent risk arises from use of drug and not from defect in drug or
negligent human intervention). Additionally, the expert should “testify to all
other facts concerning the risk which show that knowledge of the risk could
influence a reasonable person in making a decision to consent to the
procedure.” Id. at 9 (quoting Peterson v. Shields, 652 S.W.2d 929,
931 (Tex. 1983)).
Is The Expert Qualified?
In their first issue,
Drs. Sanchez and Chinnakotla contend that William M. Bennett, M.D., one of the family's experts, is not qualified to render an
opinion in this case. The doctors argue that Dr. Bennett is a practicing
nephrologist, not a transplant surgeon, and that his curriculum vitae and report
do not indicate he is familiar with surgical standards of care or that he
obtains surgical consent for kidney transplants.
Standard of Review
The trial court has broad
discretion to determine admissibility of expert testimony. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006).
We will not reverse the trial court's ruling absent a clear abuse of that
discretion. Id. A trial court abuses its discretion only if it acts
arbitrarily or capriciously, without reference to any guiding rules or
principles. Id.
Qualifications of an
Expert
Only a physician who
satisfies specific requirements may qualify as an expert witness on the issue of whether another physician departed
from accepted standards of medical care in a health care liability claim against
that physician for injury to a patient. Section 74.401 provides that, to be
qualified as an expert, the physician
(1) is practicing medicine at the
time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted
standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim;
and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted
standards of medical care.
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a) (Vernon
2005). “Practicing medicine”
includes, but is not limited to, training residents or
students at an accredited school of medicine or
osteopathy or serving as a consulting physician to other physicians who provide
direct patient care, upon the request of such other physicians.
Id. §
74.401(b).
In determining whether an
expert is qualified on the basis of training or experience,
the court shall consider whether, at the time the claim arose
or at the time the testimony is given, the
witness: (1) is board certified or has other substantial training or experience
in an area of medical practice relevant to the claim; and (2) is actively
practicing medicine in rendering medical care services relevant to the
claim.
Id. § 74.401(c).
To comply with section
74.401's requirements, the proponent of the expert's testimony has the burden to show “that the expert has 'knowledge, skill,
experience, training, or education' regarding the specific issue before the
court which would qualify the expert to give an opinion on that particular
subject.” Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996) (quoting
Ponder v. Texarkana Mem'l Hosp., 840 S.W.2d 476, 477-78 (Tex.
App.-Houston [14th Dist.] 1991, writ denied)).
Analysis
Dr. Bennett's curriculum
vitae and report show that he is board certified in nephrology and has been a transplant physician since 1970. He is the
director of renal transplantation at Legacy Health Systems in Portland, Oregon
and is a member of the American Society of Transplantation. He has contributed
to medical literature on the subjects of experimental and clinical
transplantation. Although Dr. Bennett's curriculum vitae and report state he is
a transplant physician, they do not specifically state he has training and
experience as a transplant surgeon, or that he has training and experience in
obtaining informed consent from patients awaiting transplant surgery. But the
focus “is on the 'fit' between the subject matter at issue and the expert's
familiarity” with it, “not on a comparison of the expert's title or specialty
with that of the defendant or a competing expert.” Broders, 924 S.W.2d at
153 (quoting Nunley v. Kloehn, 888 F. Supp. 1483, 1483 (E.D. Wis. 1995)).
And Dr. Bennett's curriculum vitae and report do state that he is the director
of a kidney transplant program.
The Texas Supreme Court
has stated that “expert qualifications should not be too narrowly drawn.” Larson, 197 S.W.3d at 305. Whether the trial
court should have sustained appellants' objections to Dr. Bennett's
qualifications and excluded his report is a close call. See id. at 304.
Close calls go to the trial court. Id.
We overrule Drs.
Sanchez's and Chinnakotla's first issue.
Are The Expert Reports
Adequate?
In Baylor's sole issue
and Drs. Sanchez's and Chinnakotla's second issue, appellants argue the trial court erred by refusing to dismiss the
family's claims because the expert reports are inadequate under section
74.351(r)(6).
Standard of Review
We review a trial court's
decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Jernigan v. Langley, 195
S.W.3d 91, 93 (Tex. 2006) (per curiam); Am. Transitional Care Ctrs. of Tex.
v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). We may not substitute our
judgment for that of the trial court. See Gray v. CHCA Bayshore L.P., 189
S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)). A trial court does not abuse
its discretion merely because it decides a discretionary matter differently from
an appellate court under similar circumstances. Id. (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). However, a
trial court has no discretion in determining what the law is or in applying the
law to the facts. Walker, 827 S.W.2d at 840. A clear failure by the trial
court to analyze or apply the law correctly will constitute an abuse of
discretion. Id.
Contents of Expert Reports in
Health Care Liability Claims
A trial court shall grant
a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not
represent an objective good faith effort to comply with the definition of an
expert report in section 74.351(r)(6). Tex. Civ. Prac. & Rem. Code Ann. §
74.351(l) (Vernon Supp. 2007). An “expert report” is one
that
provide[s] a fair summary of the expert's opinions regarding 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.
Id. § 74.351(r)(6). If a report omits any of these
statutory elements, it cannot be a good faith effort. Palacios, 46 S.W.3d at 879. The report must fulfill the
dual purpose of notifying each defendant of the specific conduct called into
question and providing support for a trial court to conclude the claims have
merit. See id. at 878-79; Gray, 189 S.W.3d at 859. In determining
whether the report represents a good faith effort, the trial court's inquiry is
limited to the four corners of the report. Eichelberger v. Mulvehill, 198
S.W.3d 487, 489-90 (Tex. App.-Dallas 2006, pet. denied) (citing Univ. of Tex.
Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.-Dallas 2006, no
pet.)). The report must specifically identify the person whose conduct the
plaintiff is calling into question and show how that person's conduct
constituted negligence. Dale, 188 S.W.3d at 879. And when a plaintiff
sues more than one defendant in a health care liability claim, the expert report
must set forth the standard of care for each defendant and explain the causal
relationship between each defendant's individual acts and the injury. Tex. Civ.
Prac. & Rem. Code Ann. §§ 74.351(a), (r)(6); see Jernigan, 195 S.W.3d
at 94; Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638 (Tex.
App.-Dallas 2003, pet. denied); Whitworth v. Blumenthal, 59 S.W.3d 393,
396-97 (Tex. App.-Dallas 2001, pet. dism'd by agr.). If a trial court concludes
the expert reports are deficient, it has the discretion to grant one 30-day
extension to the claimant in order to cure the deficiency. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(c).
Analysis
A. The family's
experts
To support their claim
that Biggs would have declined the donor's kidney if appellants had informed her about the donor's high-risk social and
medical history, the family submitted initial and supplemental reports from
experts Dr. Bennett and Youmin Wu, M.D., a transplant surgeon at the University
of Arkansas for Medical Sciences in Little Rock, Arkansas. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(a).
1. Dr. Wu's
report
In his report, Dr. Wu
states with regard to the standard of care: See Footnote 4
I am well aware of UNOS'
regulations and CDC Guidelines requiring the Host OPO to obtain a thorough history on each potential donor in an
attempt to determine whether the potential donor is in a “high risk” group as
defined by the Centers for Disease Control. After doing so, the Host OPO must
communicate the donor history and high-risk status to all potential recipient
institutions:
When a transplant center
receives a high risk kidney offer by the OPO and the transplant surgeon decides to accept the kidney, standard practice for a
renal transplant service is that the transplant surgeon must either inform the
recipient themselves or inform the recipient by transplant coordinator. The
patient is usually informed of the donor's high risk status and consent is
obtained from the potential recipient before they are admitted to the hospital
for transplant in an effort to minimize ischemic time for the organ. If a
patient gives consent to receive an organ from a high-risk donor, as defined by
the CDC, that consent would be well documented in the medical
records.
*
* *
The host OPO must communicate[] the
donor history to all institutions receiving organs from the high-risk donor and informed consent regarding the possibility
of transmission of a transmissible disease should be obtained from the recipient
in compliance with UNOS policy 4.1.1, UNOS policy 4.1.3 and UNOS policy
4.6.1.
With regard to breach of
that standard, Dr. Wu states:
After reviewing Cheri Biggs' entire medical records from Baylor Medical
Center and Dallas Transplant Institute as well
as the Southwest Transplant Alliance records provided to me, I did not see any
documentation that indicated the surgeon or transplant team had spoken with the
patient or her family, to inform the patient or her family that this kidney was,
in fact, from a high risk donor transplant situation. There is no indication
that Mrs. Biggs or her family was informed that the organs had been turned down
by several other transplant centers due to poor donor quality and his high risk
behaviors.
*
* *
In this particular case, I have seen
no indication that Cheri Biggs, or her family, was informed about the donor's high risk status. Accordingly, it is my
professional opinion that the transplant surgeons deviated from the standard of
care, UNOS policy and CDC guidelines in transplanting this high risk cadaveric
kidney, without first disclosing the donor's high risk status and obtaining
informed consent from Cheri Biggs.
2. Dr.
Bennett's report
With regard to the
standard of care, Dr. Bennett states:
If a potential donor is known to be
practicing high-risk behavior, this fact should be disclosed to the accepting surgeons at the receiving transplant center.
In my view, the receiving surgeon has a medical and ethical obligation when
calling in potential recipients to explain any particular risks that an
individual donor poses for a potential recipient. . . . [T]he standard of care
at transplant centers in Texas and the United States, including ours, still
requires a discussion is held between the surgeon or physician who calls the
patients into the hospital for the procedure and the patient regarding the
characteristics of that donor organ. In the United States, the use of expanded
donors, patients over the age[] of 50, those with a history of treated
hypertension and or diabetes, are sometimes acceptable as donors but the
recipient needs to be willing and give consent to accept because this type of
kidney may have a compromised long-term outcome with a transplant. In addition,
patients with possible infectious disease risks based on high risk behavior such
as current drug use or even a history of drug use may be exposed to infectious
diseases such as HIV and/or hepatitis C. They may be in the window between
infections with these viruses and the actual clinical symptoms and serological
markers of infection. If this is the case, the recipient needs to be counseled
that there is a small but finite risk of transmission of either HIV or hepatitis
C since these individuals are most likely to have unprotected sex and
intravenous drug use.
In his
supplemental report, Dr. Bennett added:
I
believe that I have set forth the proper standard of care for a transplant
physician concerning informed consent to a
patient who is to receive donor organs. It is customary to share with the
patient and/or their family the information regarding the suitability of the
donor. I feel that this is an obligation both medically and ethically so a
potential recipient of organs at high risk for transmission of infection can be
made aware so that they can decide to proceed according to their own standards
and judgment of the risks. . . . As mentioned above, virtually all medical
centers share this information through the physician or surgeon with a
prospective recipient and get their agreement to take these added risks to
kidney transplantation. . . .
With regard to the breach
of that standard, Dr. Bennett states:
It is not clear from the medical records what communication was done
between the accepting surgeons in Dallas and the
prospective recipient, Ms. Biggs. To the extent that Ms. Biggs was informed
about the risks of transplantation using Mr. Beed as a donor and accepted these
risks there was no violation of the standard of care. If Ms. Biggs was not
informed about these risks it would have violated our procedure and the standard
of centers procedure for involving the recipient in the decision to accept what
could be described as organs from a high risk donor. The high risk status was
not on the basis of any suspicion of rabies but instead was on the basis of
current drug use and abuse, fever, positive blood cultures, and a high risk
behavior that may have placed the recipient at risk for infection and placed her
in the window of infection from HIV and HCV even though the initial aerologies
were negative. The rejection of the organs by other centers should have been
disclosed. If the informed consent was not obtained it would in my view be below
the standard of what is practiced at transplant center in the United States
particularly for donors who are in high-risk categories.
B. Adequacy of
expert reports as to Baylor
Baylor argues it did not
have a duty to obtain Biggs's informed consent in this case because that duty is imposed solely upon the treating doctor and is
nondelegable. The family responds that Baylor assumed the duty to obtain
informed consent by allowing its nurses to obtain Biggs's informed consent
without the presence of the doctors. We conclude we do not need to address these
issues because both parties raise these issues for the first time on appeal.
See Tex. R. App. P. 33.1.
Baylor also argues the
family's expert reports are deficient on the family's allegation that Baylor was negligent by failing to develop, implement,
and enforce effective policies and procedures for obtaining informed consent in
cases of high-risk donors. We agree the reports are deficient on this theory of
liability.
Drs. Bennett and Wu do
not refer to Baylor by name in their reports other than to say they reviewed Baylor's records. The expert reports do not contain
a statement of the standard of care, breach, or causation applicable to Baylor
on any of the theories raised by the pleadings. Because the reports omit the
required elements of an expert report with regard to Baylor, they do not comply
with section 74.351(r)(6). See Palacios, 46 S.W.3d at 878-79;
Gray, 189 S.W.3d at 859 (expert report must provide specific information
about what each defendant should have done differently). As a result, the
reports are deficient and the trial court abused its discretion by denying
Baylor's motion to dismiss.
Baylor asks us to reverse
the order of the trial court and render judgment dismissing the family's claims against Baylor. We decline to do so. The
reports are deficient, but they were timely filed. Additionally, the family
requested an extension under section 74.351(c) if the reports were found
deficient. Because the trial court did not find the reports deficient, the court
did not have a reason to consider the family's request for an extension. We
conclude it is appropriate for the trial court to determine whether appellees
should be granted an extension in which to cure the deficiencies. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); see also Leland v.
Brandal, 217 S.W.3d 60, 64-65 (Tex. App.-San Antonio 2006, pet. granted);
Longino v. Crosswhite, 183 S.W.3d 913, 918 n.2 (Tex. App.-Texarkana 2006, no
pet.); Haddad v. Marroquin, No. 13-07-014-CV, 2007 WL 2429183, at *6
(Tex. App.-Corpus Christi Aug. 29, 2007, pet. filed) (memo.
op.).
We sustain Baylor's sole
issue, reverse the order of the trial court denying Baylor's motion to dismiss, and remand to the trial court for its
consideration of the family's extension request.
C. Adequacy of expert
reports as to Drs. Sanchez and Chinnakotla
Drs. Sanchez and
Chinnakotla initially argue they were not obligated to disclose to Biggs a risk of contracting rabies because rabies is not an
inherent risk in a kidney transplant procedure. In response, the family argues
this case is not about rabies. They argue the doctors had information about the
donor's symptoms and possible medical conditions at death and should have
disclosed that information and let Biggs decide whether to give or withhold
consent.
It is undisputed that
Drs. Sanchez and Chinnakotla could not have known the donor had rabies prior to performing transplant surgery on Biggs.
However, the family alleges that the donor presented symptoms of a very serious
illness that may have resulted in his death: he had a 106- degree fever,
persistent vomiting, seizures, a confused mental state, his lab tests were positive for “a rare staphylococcal” organism and
rhabdomyolysis. See
Footnote 5
And Dr. Bennett states the medical records showed the donor
ingested an unknown
quantity of rock cocaine two days prior to admission. He made several emergency room visits and on the third visit was
noted to have altered mental status. He rapidly deteriorated and was pronounced
brain dead on May 2, 2004. Blood cultures returning on May 2, 2004, grew
gram-negative rods . . . The procuring team felt that the recipient surgeon
should be aware of a sputum growing the hemophilus influenza bacteria and the
possibility of r[h]abdomyolysis in the donor. Cultures from May 2 of the blood,
urine and sputum showed the aforementioned gram-negative growth and a rare
staphylococcal coagulase positive organism. . . . He was thought to have died of
intracranial hemorrhage. He did have seizures, cocaine induced myocardial
infarction, probably aspiration and had a significant past history of cocaine
abuse. He had been incarcerated several weeks prior to the fatal illness. . . .
In the emergency room, . . . he was admitted in an agitated and confused state
and he had multiple episode[s] of vomiting. He had ingested an unknown quantity
of rock cocaine in an attempt to hide it from law enforcement officers. A urine
screen was positive for cocaine and cannabinoids. He continued to exhibit
confusion and agitation and was intubated for airway protection because of
persistent vomiting. . . . He was given anticonvulsants. He continued to have
tonic clonic seizure activity by EEG . . . .
The family alleges the
donor potentially had a serious contagious infection and a medical condition that can cause kidney failure and that
these conditions were not disclosed to Biggs prior to surgery. Although the
family's experts do not state that the donor's possible medical conditions posed
an inherent actual or theoretical risk or hazard to a transplant recipient by
virtue of receiving an organ from this donor, the experts do state that this is
information that should have been disclosed. We first address whether the
family's expert reports are adequate as to Drs. Sanchez and
Chinnakotla.
1. Standard of
care
Regarding the standard of
care, both reports state the “transplant surgeon” should have disclosed the donor's high-risk status to Biggs prior to
surgery to give Biggs an opportunity to make an informed decision about whether
to accept the kidney. However, neither report states which transplant surgeon
was obligated to disclose this information, Dr. Sanchez or Dr. Chinnakotla.
Baylor's pleadings indicate Dr. Sanchez was Biggs's treating surgeon, and the
family's pleadings do not contest this allegation. However, in reviewing the
adequacy of expert reports, we are limited to the four corners of the report.
See Eichelberger, 198 S.W.3d at 489-90. Although Dr. Bennett's report
states Dr. Chinnakotla harvested the kidney from the donor, neither report
states which transplant surgeon owed the duty to obtain her informed consent.
Dr. Bennett states the
“receiving surgeon has a medical and ethical obligation when calling in
potential recipients to explain any particular risks that an individual donor
poses for a potential recipient.” But Dr. Bennett does not refer to either Dr.
Sanchez or Dr. Chinnakotla as the “receiving surgeon.” Additionally, Dr. Wu does
not refer to either doctor by name. He refers to the “transplant surgeon” who
“accept[s] the kidney,” and, at one point, to the “transplant team.” When an
expert opines about the care provided by more than one physician, the report
must refer to each physician by name and state the standard of care with regard
to that physician. See Gray, 189 S.W.3d at 859. Additionally, Dr. Bennett
does not state whether the “particular risks” to which he referred are the same
as the inherent risks that must be disclosed.
We conclude the family's
expert reports do not satisfy the requirements of section 74.351(r)(6) with regard to the standard of care.
2. Breach
of the standard of care
Regarding the
breach of the duty to obtain informed consent, Drs. Bennett and Wu state in their reports that they reviewed Biggs's medical
records, records from the transplant institutions, and medical information about
the donor, and both state they could not find any documentation that Biggs was informed about the donor's
high-risk status. See
Footnote 6
Dr. Bennett also states there is no indication in the records that Biggs was informed that other transplant institutions/recipients
declined the organs. See
Footnote 7
Dr. Bennett
concluded the records were not clear about what communication was made between appellants and Biggs concerning informed
consent. He said the transplant surgeon breached the standard of care if Biggs
was not informed about the donor's high-risk nature, but did not breach the
standard of care if she was informed. Neither expert states that he actually
reviewed the informed consent forms. These experts state they do not know
whether Biggs was informed about the donor's history. They do not state whether
either doctor breached a duty to inform Biggs of this
information.
We conclude the family's
expert reports do not comply with the statute's requirements concerning breach of the standard of care.
3.
Causation
With regard to the third
required element of an expert report, Drs. Sanchez and Chinnokotla argue the reports do not establish a causal link between the
donor's medical history and Biggs's death from rabies. The family argues the
legislature “removed 'lack of informed consent' causation from the expert battle
arena and, instead, funneled it through whether a 'reasonable patient' would
have consented to the procedure.” As support, they cite cases that discuss the
legislative change in the standard from whether a physician in a certain
community would provide certain disclosures to whether the disclosures could
have influenced a reasonable person in deciding whether to consent to a certain
medical procedure. See generally Winkle v. Tullos, 917 S.W.2d 304 (Tex.
App-Houston [14th Dist.] 1995, writ denied); Greene v. Thiet, 846 S.W.2d
26 (Tex. App.-San Antonio 1993, writ denied) (op. on reh'g). However, the change
in the law did not eliminate the longstanding requirement to establish causation
between the undisclosed inherent risks and the injuries suffered. See
McKinley v. Stripling, 763 S.W.2d 407, 409-10 (Tex. 1989) (proximate cause
remains element of cause of action based on failure of doctor to inform patient
of inherent risks associated with surgical procedure); Greene, 846 S.W.2d
at 34-35 (eliminating element of causation “would, in effect, impose strict
liability upon the treating physician contrary to McKinley.”). Instead,
the expert report must include a fair summary of the expert's opinion regarding
the causal relationship between “that failure [of care rendered] and the injury,
harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
There are two separate parts to
the causation analysis in informed consent cases. The first part is whether a
reasonable person could have been influenced to decide to give or withhold
consent by being informed of the risks or hazards that were not disclosed.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.101; Greene, 846
S.W.2d at 31. The second part is whether the injury complained of was caused in
fact by the undisclosed risk. Greene, 846 S.W.2d at 31.
Dr. Wu's
report does not address causation at all and does not comply with the
statute's requirements concerning causation.
Only Dr. Bennett's supplemental report addresses causation, but not with the
specificity required:
In the case of Ms. Biggs, she was denied the opportunity to
know that the potential donor had been recently
incarcerated, had been recently using illicit drugs and had recently had a
systemic infection. . . . In the case of Ms. Biggs, she might have declined the
organs that ultimately cost her her life. I believe this is standard transplant
practice in Texas, Oregon and everywhere in the country. The lack of an
opportunity to turn down these organs caused the death of Cheryl Biggs although
not for reasons that could have been ascertained at that time.
Dr. Bennett states Biggs
was denied “an opportunity to turn down these organs” because she was not informed about the donor's history. But the
standard is whether a reasonable person, not Biggs, could have been influenced
by information about the donor's condition. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.101. Additionally, Dr. Bennett does not connect the donor's
symptoms to Biggs's death. See Jacobo, 135 S.W.3d at 654. In fact, he
concludes that the actual cause of Biggs's death could not have been ascertained
at the time of the surgery.
Dr. Bennett states the
“procuring team felt that the recipient surgeon should be aware of a sputum growing the hemophilus influenza bacteria
and the possibility of r[h]abdomyolysis in the donor.” But he does not state the
significance of this information to the recipient surgeon, or that having this
information could have influenced a reasonable person in deciding whether to
give or withhold consent. He also does not make a causal link between that
information and Biggs's death. Dr. Bennett also states that the donor's blood,
urine, and sputum cultures showed “a rare staphylococcal coagulase positive
organism.” But, again, he does not state the significance of this information,
why it should have been disclosed to Biggs, whether it could have influenced a
reasonable person in deciding whether to give or withhold consent, or how it
relates to Biggs's death. And Dr. Bennett does not connect any of the donor's
symptoms or possible conditions to Biggs's death.
We conclude the family's
expert reports do not comply with the statute's requirements concerning causation.
We sustain Drs. Sanchez's
and Chinnakotla's second issue. In keeping with our disposition of Baylor's issue, we reverse the order of the trial court
denying the doctors' motions to dismiss, and we remand to the trial court for
its consideration of the family's request for an extension to cure deficiencies
in the expert reports.
Conclusion
Having
sustained appellants' issues, we reverse the order of the trial court
denying appellants' motions to dismiss, and we
remand to that court for further proceedings consistent with this
opinion.
ELIZABETH
LANG-MIERS
JUSTICE
061104hf.p05
Footnote
1
The family alleges that the donor's social history included “ingestion of
cocaine, prior to his admittance to the
hospital, in such an amount that it contributed to cause his death. Furthermore,
[the donor's] family admitted that he smoked marijuana daily, had been in prison
in the State of Texas recently, had homemade tattoos, and smoked crack cocaine.
. . . [The donor's] 'high risk' medical history includes but is not limited to
his 106 degree temperature, prior to his death, indicating an obvious and
serious infection that was unknown to [appellees, his] treating physicians and
all [appellants]. Furthermore, [his] lab tests show virtually no normal levels
in any of the fields tested. Lastly, [his] lab tests showed a serious unknown
rare staphylococcal positive organism. It was also noted that [the donor] may
have suffered from rhabdomyolysis and that was not proven negative prior to the
transplant surgery.”
Footnote
2
This lawsuit arises under the informed consent and expert report provisions of
chapter 74. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.101, 74.351 (Vernon 2005). Chapter 74 recodified the former
law, article 4590i, concerning medical liability. See Act of May 30,
1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048, 2050 (subsequent
amendments omitted) (former Tex. Rev. Civ. Stat. Ann. art. 4590i), repealed
by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.
Laws 847, 884 (now codified at Tex. Civ. Prac. & Rem. Code Ann. §§
74.101-.106 (Vernon 2005)). In the recodification, the legislature did not make
substantive changes to the provisions at issue in this case. Accordingly, we
conclude that cases discussing these former provisions under article 4590i are
relevant to our analysis of this case. See Simonson v. Keppard, 225
S.W.3d 868 (Tex. App.-Dallas 2007, no pet.) (citing cases decided under article
4590i in analysis of provisions of chapter 74); CHCA Mainland L.P. d/b/a
Mainland Med. Ctr. v. Burkhalter, 227 S.W.3d 221 (Tex. App.-Houston 2007, no
pet.) (same); Apodaca v. Russo, 228 S.W.3d 252 (Tex. App.-Austin 2007, no
pet.) (same).
Footnote
3
Section 74.106(b) of the civil practice and remedies code states that when the
Texas Medical Disclosure Panel has not
specifically determined what risks and hazards must be disclosed prior to a
particular procedure, the duty is that “otherwise imposed by law.” See
Tex. Civ. Prac. & Rem. Code Ann. § 74.106(b) (Vernon 2005). The duty
“otherwise imposed by law” in this informed consent case is that imposed by
section 74.101. See id. § 74.101; Jacobo, 135 S.W.3d at
654-55.
Footnote
4
Dr. Wu's supplemental report adds only the words “this is the standard of care
in the organ transplant
service.”
Footnote
5
Rhabdomyolysis is “the destruction or degeneration of muscle tissue, as from a
traumatic injury, excessive exertion, or a
stroke, that sometimes leads to acute renal failure.” Merriam-Webster Online Dict. See Footnote 8 ;
see Tex. Workers' Comp. Ins. Fund v. Tex. Workers' Comp. Comm'n, 124
S.W.3d 813, 816 (Tex. App.-Austin 2003, pet. denied) (describing worker's
injuries as including “rhabdomyolysis (muscle degeneration) with acute renal
failure”).
Footnote
6
The medical records, information about the donor, and informed consent forms
are not part of the appellate
record.
Footnote
7
Dr. Bennett notes in his report that the medical records show the donor's “heart
was offered to two potential center/recipients
and was turned down based on donor social history. The lungs were turned down by
one center because of 'donor quality.' The liver was turned down by one center
because of donor ABO. The kidneys were offered to four potential kidney/pancreas
recipients and turned down because of 'donor quality.'”
Footnote
8
See http://www.m-wcom/dictionary/rhabdomyolysis.
File Date[11/09/2007]
File Name[061104HF]
File
Locator[11/09/2007-061104HF]