no. 05-09-00861-cv warren r. fagadau, md, thomas h. wenkstern

NO. 05-09-00861-CV
IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT
AT DALLAS, TEXAS
WARREN R. FAGADAU, M.D.,
Appellant,
v.
THOMAS H. WENKSTERN,
Appellee.
On Interlocutory Appeal from the 160th Judicial District of Dallas County, Texas
The Honorable Jim Jordan Presiding
Cause No. 08-14029-H
BRIEF OF APPELLEE THOMAS H. WENKSTERN
Respectfully Submitted,
Edwards & de la Cerda, L.L.C.
6060 N. Central Expy., Ste. 560
Dallas, Texas 75206
(214) 237-2942 (Phone)
(214) 237-2969 (Fax)
Peter de la Cerda
State Bar No. 24045769
ATTORNEYS FOR APPELLEE
THOMAS H. WENKSTERN
IDENTITIES OF PARTIES AND COUNSEL
Appellee makes the following minor correction to this section of Appellant‘s brief:
APPELLEE‘S COUNSEL:
Brief of Appellee Thomas H. Wenkstern
PETER DE LA CERDA
State Bar No. 24045769
Page i
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL .................................................................................i
TABLE OF CONTENTS ...................................................................................................................ii
INDEX OF AUTHORITIES..............................................................................................................iv
ISSUES PRESENTED.......................................................................................................................1
SUMMARY OF THE ARGUMENT ................................................................................................2
ARGUMENT .....................................................................................................................................2
I.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING
APPELLANT‘S SECOND MOTION TO DISMISS ................................................2
A.
The Standard of Review Applicable to the Trial Court‘s Denial of
Appellant‘s Second Motion to Dismiss .........................................................2
B.
Appellee‘s Second Expert Report Adequately Addresses the Statutorily
Required Elements .........................................................................................3
1.
Appellant‘s Failure to Timely Refer Appellee and His Failure to
Timely Reexamine and/or Follow-up with Appellee.........................4
2.
Appellant‘s Failure to Sufficiently Examine Appellee ......................6
3.
Appellant‘s Failure to Meet the Standard of Care in the Treatment
of Appellee‘s Ophthalmologic Condition ..........................................7
C.
Appellee‘s Second Expert Report Contains Sufficient Factual Bases to
Support its Conclusions .................................................................................7
D.
Appellee‘s Second Expert Report Provides the Sequence of Events within
Reasonable Medical Probability ....................................................................8
E.
Appellee‘s Second Expert Report Directly Addresses Other Possible
Causes ............................................................................................................9
II.
THE TRIAL COURT‘S DECISION TO GRANT APPELLEE AN EXTENSION
UNDER SECTION 74.351(c) OF THE TEXAS CIVIL PRACTICE AND
REMEDIES CODE IS NOT SUBJECT TO APPELLATE REVIEW ......................10
III.
APPELLEE‘S FIRST EXPERT REPORT AMOUNTS TO AT LEAST A
―DEFICIENT REPORT‖ AS OPPOSED TO ―NO REPORT‖ .................................11
Brief of Appellee Thomas H. Wenkstern
Page ii
CONCLUSION AND PRAYER .......................................................................................................14
Brief of Appellee Thomas H. Wenkstern
Page iii
INDEX OF AUTHORITIES
CASES
Am. Transitional Care Ctrs. of Tex. v. Palacios,
46 S.W.3d 873 (Tex. 2001)......................................................................................2, 3, 5, 7
Barko v. Genzel,
123 S.W.3d 457 (Tex. App.—Eastland 2003, no pet.) ..................................................9, 10
Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48 (Tex. 2002) ..................................................................................................13
Cayton v. Moore,
224 S.W.3d 440 (Tex.App.—Dallas 2007, no pet.) ...................................................2, 3, 13
Dews v. Palo Pinto Nursing Center, LP,
2009 WL 1636019 (Tex.App.—Eastland 2009, no pet. h.) .................................................6
Jernigan v. Langley,
195 S.W.3d 91 (Tex. 2006) (per curiam) .............................................................................2
Ogletree v. Matthews,
262 S.W.3d 316 (Tex. 2007) ..................................................................................11, 12, 14
STATUTES
TEX. CIV. PRAC. & REM. CODE § 74.351 ...................................................................................... 3, 4
Brief of Appellee Thomas H. Wenkstern
Page iv
NO. 05-09-00861-CV
IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT
AT DALLAS, TEXAS
WARREN R. FAGADAU, M.D.,
Appellant,
v.
THOMAS H. WENKSTERN,
Appellee.
BRIEF OF APPELLEE THOMAS H. WENKSTERN
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Thomas H. Wenkstern, Appellee in the above-entitled and numbered
appeal, and files this brief in support of this Court affirming the trial court‘s denial of
Appellant‘s Second Motion to Dismiss pursuant to Section 74.351 of the Texas Civil Practice
and Remedies Code (―CPRC‖).
ISSUES PRESENTED
1.
Whether the trial court abused its discretion in denying Appellant‘s Second CPRC
Section 74.351 Motion to Dismiss when Appellee‘s second expert report adequately
addresses the statutorily required elements.
2.
Whether this Court has jurisdiction to review the trial court‘s decision, pursuant to
Section 74.351(c) of the CPRC, to deny Appellant‘s First CPRC Section 74.351 Motion
to Dismiss and grant Appellee a thirty (30) day extension to cure the deficiency in
Appellee‘s first expert report.
3.
Whether the trial court abused its discretion in finding Appellee‘s first expert report to be
deficient as opposed to no expert report at all.
Brief of Appellee Thomas H. Wenkstern
Page 1
SUMMARY OF THE ARGUMENT
In this health care liability claim, Appellee properly and timely served a supplemental
expert report on Appellant pursuant to Chapter 74 of the CPRC and pursuant to the trial court‘s
April 15, 2009 Order.1
This second expert report quite clearly and sufficiently implicates
Appellant‘s inadequate medical treatment of Appellee, and it further provides sufficient basis for
this Court to determine that Appellee‘s claims have merit. As such, Appellee has fulfilled his
statutory expert report obligations, and the trial court did not abuse its discretion in denying
Appellant‘s Second CPRC Section 74.351 Motion to Dismiss. Moreover, to the extent Appellant
complains that Appellee‘s first expert report failed to meet the statutory requirements, such
complaints cannot be addressed by this Court, as the Court lacks jurisdiction to address same.
Finally, even if this Court finds that it has jurisdiction to address Appellee‘s first expert report,
the trial court did not abuse its discretion in denying Appellant‘s First CPRC Section 74.351
Motion to Dismiss because Appellee‘s first expert report amounted to at least a ―deficient report‖
as opposed to ―no report.‖
ARGUMENT
I.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
DENYING APPELLANT’S SECOND MOTION TO DISMISS
A.
The Standard of Review Applicable to the Trial
Court’s Denial of Appellant’s Second Motion to Dismiss
The Texas Supreme Court and this Court have clearly held that a trial court‘s decision on
a motion to dismiss a claim under Section 74.351 of the CPRC is reviewed for an abuse of
discretion. Cayton v. Moore, 224 S.W.3d 440, 444 (Tex.App.—Dallas 2007, no pet.) (citing
Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) and Am. Transitional Care
1
C.R. at 65; Appendix 3 to Brief of Appellant.
Brief of Appellee Thomas H. Wenkstern
Page 2
Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)). A trial court abuses its discretion if
it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.
Id. (citations omitted). When reviewing matters committed to the trial court‘s discretion, an
appellate court may not substitute its judgment for that of the trial court. Id. (citations omitted).
A trial court does not abuse its discretion merely because it decides a discretionary matter
differently than an appellate court would under similar circumstances. Id. (citations omitted).
However, a trial court has no discretion in determining what the law is or in applying the law to
the facts. Id. (citations omitted). A clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion. Id. (citations omitted).
B.
Appellee’s Second Expert Report Adequately
Addresses the Statutorily Required Elements
As this Court is well aware, a plaintiff asserting a healthcare liability claim must provide
an expert report as to each defendant physician or healthcare provider against whom he asserts a
healthcare liability claim. TEX. CIV. PRAC. & REM. CODE § 74.351(a). This expert report must
provide a fair summary of the expert‘s opinions, as of the date of the report, on the applicable
standards of care, the manner in which the care rendered by the physician or healthcare provider
failed to meet those standards, and the causal relationship between that failure and the injury,
harm, or damages claimed. Id. at § 74.351(r)(6). This report must discuss the three elements
with sufficient specificity to inform the defendant of the conduct the plaintiff has questioned, and
to provide a basis for the trial court to conclude the claims are meritorious. Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). But the report need not
marshal all of the plaintiff’s proof. Id. at 878. The trial court shall grant a motion challenging
an expert report‘s adequacy ―only if it appears to the court, after hearing, that the report does not
Brief of Appellee Thomas H. Wenkstern
Page 3
represent an objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).‖
TEX. CIV. PRAC. & REM CODE § 74.351(l) (emphasis added).
Here,
considering the substance of Appellee‘s claims against Appellant, Appellee‘s second expert
report is more than adequate under Chapter 74 and the trial court did not abuse its discretion in
denying Appellant‘s second motion to dismiss.
In Appellee‘s Second Amended Petition, Appellee alleges a theory of direct liability
against Appellant, stating more specifically that Appellant (a) failed to timely refer Appellee to
another physician with sufficient education, training, and experience to treat an individual with
Appellee‘s ophthalmologic conditions such as a vitreo-retinal surgeon; (b) failed to timely
reexamine Appellee and/or schedule a follow-up appointment with Appellee in a reasonably
prudent manner under the circumstances; (c) failed to sufficiently examine Appellee on August
23, 2006 (including Appellant‘s failure to examine Appellee‘s left eye); and (d) failed to meet
the applicable standard of care in the treatment of Appellee‘s ophthalmologic conditions.2
Taking each of these failures individually, it becomes clear that Appellee‘s second expert report
is sufficient.
1.
Appellant’s Failure to Timely Refer Appellee and
His Failure to Timely Reexamine and/or Follow-up with Appellee
According to Appellee‘s second expert report, considering that (1) ―the patient was a high
myope,‖ (2) ―the patient presented with floaters and grainy vision of acute onset in his right eye,‖
(3) ―a vitreous floater was found in the [patient‘s] right eye, and that Retinal Detachment could
be possible,‖ and (4) ―the pigmented cells noted in the vitreous,‖ the standard of care required
that Appellant either ―personally perform a follow-up examination of the patient, at the very
latest, by 9/6/06 (i.e., within 2 weeks of 8/23/06)‖ or ―immediately refer the patient to a
2
C.R. at 74-75; Appendix at 3-4.
Brief of Appellee Thomas H. Wenkstern
Page 4
physician with sufficient expertise to provide care and treatment for the patient, such as a vitreoretinal surgeon.‖3 But Appellant did neither.4 Thus, Appellee‘s second expert report quite
clearly provides that, considering Appellee‘s high risk medical condition, the applicable standard
of care required Appellant to timely reexamine, follow-up, and/or refer Appellee and that
Appellant failed to meet this standard. In other words, the report squarely describes the conduct
at issue. See Palacios, 46 S.W.3d at 875. Regarding causation, the report is equally clear.
The report states:
[T]he patient did not have a Retinal Detachment on the exam of 8/23/06 and he
did have a Retinal Detachment on the exam of 9/27/06. This means that the
Retinal Detachment occurred between these two dates, and it further means that
tears developed in the patient‘s right eye prior to the Retinal Detachment. Within
reasonable medical probability, if the patient had been…reexamined (whether it
be by Dr. Fagadau or another physician) by 9/6/06, the developing tears in the
patient‘s right eye would have been noted sooner and could have been
successfully treated with laser before Retinal Detachment ever occurred. Dr.
Fagadau failed to do this, thus causing the patient to develop a Retinal
Detachment in his right eye. Further, within reasonable medical probability, this
earlier laser treatment to the right eye would have obviated the need for the many
subsequent surgeries endured by the patient. Lastly, within reasonable medical
probability, had the patient received this earlier laser treatment to the right eye, he
would not have suffered the injuries to the vision in his right eye that he now
suffers.5
From this verbiage, this Court can determine Appellee‘s claims have merit. See Palacios,
46 S.W.3d at 875. First, the report provides that Appellee‘s retinal detachment occurred between
the time of Appellant‘s examination and about one month later. The report further explains that
this means that tears were developing in Appellee‘s right eye prior to the retinal detachment;
tears that should have been noted by reexamination within two (2) weeks of Appellant‘s
treatment of Appellee. Then, the report states that, had the tears been noted sooner (i.e., by
Appellant adhering to the standard of care), they could have been successfully treated by laser
3
C.R. at 104-05; Appendix 2 to Brief of Appellant at 2-3.
C.R. at 105; Appendix 2 to Brief of Appellant at 3.
5
Id.
4
Brief of Appellee Thomas H. Wenkstern
Page 5
(like they were successfully treated in the left eye by Dr. Allen). Finally, the report states that
Appellant‘s failures caused the retinal detachment, the need for the many subsequent surgeries,
and the current deteriorated condition of Appellee‘s right eye.
On pages 29-30 of Appellant‘s Brief, Appellant cites Dews v. Palo Pinto Nursing Center,
LP, 2009 WL 1636019 (Tex.App.—Eastland 2009, no pet. h.) and argues that Appellee‘s second
expert report fails to ―set forth in a non-conclusory manner what the [referral to a vitreo-retinal
surgeon or retinologist] would have accomplished.‖6
But Appellee‘s second expert report
sufficiently informs the Court exactly what the referral would have accomplished. Unlike the
report in Dews, Appellee‘s expert report states that the timely referral (or reexamination) would
have resulted in the developing tears in Appellant‘s eye being noted sooner, which tears could
have been successfully treated with laser before the retinal detachment ever occurred. 7 Thus, no
inference is needed.
2.
Appellant’s Failure to Sufficiently Examine Appellee
On this issue, Appellee‘s second expert report states:
The patient also had the additional risk factor of Lattice Degeneration in the left
eye, which was never noted by Dr. Fagadau because he failed to examine the left
eye. Dr. Fagadau‘s failure to examine the patient‘s left eye on 8/23/06 was below
the standard of care. Within reasonable medical probability, if the patient had
been sufficiently examined on 8/23/06, Lattice Degeneration would have been
found in the left eye, which would have further indicated the increased probability
of Retinal Detachment in the right eye.8
6
Brief of Appellant at 29-30. In Dews, the court was particularly concerned about an impermissible inference that it
was required to make in reviewing the subject expert report: ―[w]e can infer, but do not know, that an upper GI
series would have determined the cause or specific source of the bleed, but then we do not know what steps the
doctors should have taken.‖ Dews v. Palo Pinto Nursing Center, LP, 2009 WL 1636019 (Tex.App.—Eastland 2009,
no pet. h.).
7
C.R. at 105. Appendix 2 to Brief of Appellant at 3.
8
C.R. at 104; Appendix 2 to Brief of Appellant at 2.
Brief of Appellee Thomas H. Wenkstern
Page 6
Clearly, Appellee‘s expert states that Appellant should have examined Appellee‘s left eye on
August 23, 2006, and Appellant‘s failure to do so was below the standard of care. Thus, the
specific conduct at issue has been identified. See Palacios, 46 S.W.3d at 875.
Appellee‘s expert report then states that, had Appellant examined Appellee‘s left eye,
lattice degeneration would have been found, indicating further that retinal detachment was likely.
Thus, because Appellant failed to examine the left eye, Appellant ignored yet another risk factor
for retinal detachment in the right eye. In other words, Appellant‘s failure robbed Appellee of
further medical evidence needed to properly treat him. And the synergistic effect of this failure
and the one described in Part I.B.1. supra caused Appellee harm: ―[w]ithin reasonable medical
probability, if the patient had been sufficiently examined on 8/23/06 (including an examination
of the left eye) and reexamined (whether it be by Dr. Fagadau or another physician) by 9/6/06,
the developing tears in the patient‘s right eye would have been noted sooner and could have been
successfully treated with laser before Retinal Detachment ever occurred.‖9
From these
statements, the Court can determine that this claim has merit. See Palacios, 46 S.W.3d at 875.
3.
Appellant’s Failure to Meet the Standard of Care in the
Treatment of Appellee’s Ophthalmologic Condition
This particular allegation, of course, is of a broad nature and encompasses the prior ones.
Thus, Appellee hereby incorporates his arguments in Part I.B.1.-2. supra as if set out in full.
C.
Appellee’s Second Expert Report Contains
Sufficient Factual Bases to Support its Conclusions
On Pages 23-27 of Appellant‘s Brief, Appellant complains that Appellee‘s second expert
report is too conclusory.10 More specifically, Appellant complains that this report lacks factual
9
C.R. at 105; Appendix 2 to Brief of Appellant at 3.
Brief of Appellant at 23-27.
10
Brief of Appellee Thomas H. Wenkstern
Page 7
support for its conclusions that, had Appellant (or another physician) seen Appellee sooner, the
ultimate harm would have been avoided. But, in so complaining, Appellant focuses only on the
second paragraph of the ―Standard of Care, Breach, and Causation‖ section and completely
ignores the rest of the report.
Dr. Goldman spends the first paragraph of the ―Standard of Care, Breach, and Causation‖
section explaining the many reasons why Appellee was at high risk for developing a retinal
detachment and thus required a prompt follow-up or immediate referral.11 In other words, Dr.
Goldman is saying that Appellee was the proverbial ―ticking time bomb.‖ The report goes on to
explain that if Appellant sufficiently examined Appellee on August 23, 2006, and if he
reexamined Appellee (or referred Appellee for reexamination) within two (2) weeks 12 after that,
the developing tears would have been noted sooner.13 This statement is not made is a vacuum. It
is made considering, again, that Appellee was a ticking time bomb, a fact that Appellant, as a
trained and educated ophthalmologist, had a duty to heed. Then, the report states that the tears
could have been successfully treated with laser and the retinal detachment prevented.14 Thus, but
for Appellant‘s omissions, the retinal detachment and the subsequent surgeries and deteriorated
condition of Appellee‘s right eye would not have occurred.
D.
Appellee’s Second Expert Report Provides the Sequence
of Events within Reasonable Medical Probability
Appellant complains that Appellee‘s second expert report fails to inform of ―what would
have been seen at [the follow-up] appointment.‖15 Then Appellant claims that only three (3)
11
C.R. at 104-05; Appendix 2 to Brief of Appellant at 2-3.
It is important to note here that Appellant obsessively focuses on an exact two week follow-up when the report
actually states that the follow-up should have been scheduled, ―at the very latest,‖ by September 6, 2006, meaning
within two (2) weeks. C.R. at 105; Appendix 2 to Brief of Appellant at 3 (emphasis added).
13
C.R. at 105; Appendix 2 to Brief of Appellant at 3.
14
Id.
15
Brief of Appellant at 25.
12
Brief of Appellee Thomas H. Wenkstern
Page 8
possibilities exist: (1) that Appellee‘s exam would have been the same; (2) that Appellee‘s exam
would have shown a developing retinal detachment; and (3) that Appellee would have already
suffered a retinal detachment.16 At the outset, it should be noted that the exact timing of the tears
and the retinal detachment can never be known to the second. But, an expert ophthalmologist
opining on the basis of his education, training, experience, and review of the medical records can
estimate within reasonable medical probability the sequence of events. And in this case, on the
basis of Appellee‘s medical condition, including the fact that he was at high risk for developing a
retinal detachment, Dr. Goldman states that the developing tears would have been discovered
and could have been successfully treated if Appellant had followed a particular course of action.
Thus, these ―other‖ possibilities are addressed and dismissed in favor of what Dr. Goldman
opines.
E.
Appellee’s Second Expert Report Directly
Addresses Other Possible Causes
Citing Barko v. Genzel, 123 S.W.3d 457 (Tex. App.—Eastland 2003, no pet.), Appellant
complains that Appellee‘s second expert report fails to ―address the issue of whether the ultimate
harm may have been caused by a pre-existing condition or other possible causes.‖17 But a
careful reading of Barko shows Appellant‘s reliance on same is misplaced.
In Barko, the plaintiff sued her emergency room physician for failing to diagnose and
treat her disc re-herniation, which she asserted led to permanent neurological damage and a
miscarriage. Barko, 123 S.W.3d at 458. The Eastland Court of Appeals held that the report was
insufficient to satisfy the statutory requirements because it: (1) did not indicate that the plaintiff
would have recovered from the back injury but for the doctor‘s negligence; (2) did not state that
16
17
Id.
Id. at 15.
Brief of Appellee Thomas H. Wenkstern
Page 9
the back surgery would have been avoided but for the doctor‘s negligence; and (3) did not make
any attempt to eliminate either the back injury itself or the attempt to surgically repair it as
potential causes of the permanent neurological damage. Id. at 460-61. The expert report in
Barko is distinguishable from the report presented here.
While the report in Barko failed to state that the back surgery would have been avoided
but for the doctor‘s negligence, Appellee‘s expert in the instant case opines that reexamination
would have resulted in the tears being noted sooner and that laser treatment could have repaired
Appellee‘s eyes without the need for the many further surgeries he endured. And, while the
report in Barko did not make any attempt to eliminate either the back injury itself or the attempt
to surgically repair it as potential causes of the permanent neurological damage, Appellee‘s
expert here opines that Appellee was at high risk for developing retinal detachment and that,
because Appellee was at high risk, Appellant should have either personally seen or referred
Appellee for further treatment by at least September 6, 2006. In other words, Appellee‘s expert
report directly acknowledges the interplay of preexisting/predisposing conditions (i.e., risk
factors) that should have prompted Appellant to provide more thorough care to prevent a likely
ultimate harm.
II.
THE TRIAL COURT’S DECISION TO GRANT APPELLEE AN
EXTENSION UNDER SECTION 74.351(c) OF THE TEXAS CIVIL PRACTICE
AND REMEDIES CODE IS NOT SUBJECT TO APPELLATE REVIEW
On April 15, 2009, the trial court executed an order finding that Appellee‘s first expert
report was deficient, but, pursuant to Section 74.351(c) of the CPRC, the trial court denied
Appellant‘s first motion to dismiss and granted Appellee a thirty (30) day extension to cure the
deficiencies.18 Appellant‘s Issue No. 2 lays the foundation for Appellant‘s complaint that the
18
C.R. at 65; Appendix 3 to Brief of Appellant.
Brief of Appellee Thomas H. Wenkstern
Page 10
trial court erred in granting Appellee an extension pursuant to Section 74.351(c) of the CPRC.
Yet, according to the Texas Supreme Court, the trial court‘s decision on this issue is not subject
to appellate review:
Indeed, the Legislature recognized that not all initial timely served reports would
satisfy each of the statutory criteria. As a result, the amendments explicitly give
trial courts discretion to grant a thirty day extension so that parties may, where
possible, cure deficient reports. TEX. CIV. PRAC. & REM. CODE § 74.351(c). In
this important respect, a deficient report differs from an absent report. Thus, even
when a report is deemed not served because it is deficient, the trial court retains
discretion to grant a thirty day extension, and the Legislature explicitly stated that
such orders are not appealable.
Ogletree v. Matthews, 262 S.W.3d 316, 320-21 (Tex. 2007). Thus, this Court lacks jurisdiction
to address this issue. Id. at 321. And, even if this Court finds that it has jurisdiction to address
this issue, Appellee‘s first expert report amounted to at least a ―deficient report‖ as opposed to
―no report‖ and the trial court acted within its discretion in granting the extension.
III.
APPELLEE’S FIRST EXPERT REPORT AMOUNTS TO AT LEAST
A “DEFICIENT REPORT” AS OPPOSED TO “NO REPORT”
At the very least, Appellee‘s first expert report amounts to a ―deficient report‖ as opposed
to ―no report.‖ In Ogletree, the Texas Supreme Court distinguished between two (2) scenarios,
one in which a medical malpractice plaintiff timely serves a deficient report and the other in
which such plaintiff serves no report at all. Ogletree, 262 S.W.3d at 319-21. In the latter
scenario, the trial court must dismiss, but in the former scenario, the trial court may grant the
plaintiff a thirty (30) day extension to cure the deficiency. Id. at 320. And whether Appellee‘s
first expert report constitutes at least a ―deficient report‖ can be confirmed by a closer
examination of Ogletree, including Justice Williett‘s concurring opinion.
In Ogletree, the physician-appellant, a urologist, argued that the plaintiff-appellee‘s
expert report, authored by a radiologist, constituted no report because a radiologist may not opine
Brief of Appellee Thomas H. Wenkstern
Page 11
on a urologist‘s standard of care. Id. at 319. Thus, the physician-appellant contended that the
trial court had no discretion to grant the thirty (30) day extension. Id. But the Ogletree court
disagreed with the physician-appellant ―[b]ecause a report that implicated [the physicianappellant‘s] conduct was served.‖ Id. at 321. In other words, a report that implicates the conduct
of the health care provider amounts to at least a deficient report.
Justice Willett‘s concurrence provides further guidance on this issue as he expresses
concern about the potential for yet a third type of report – one that is so deficient as to amount to
no report at all. Id. at 322-24. As an example, he describes:
[I]t may (by its own terms) be provider correspondence or perhaps ―medical or
hospital records or other documents‖ or other health-related paperwork that, while
related to the patient‘s care and condition, neglects altogether to address the
rudimentary elements of an expert report; indeed, it may never and nowhere
accuse anyone of doing anything wrong. Such information certainly constitutes
discoverable and highly relevant information in a lawsuit, but any claimant
passing off such material as an expert report, and any court treating it as such,
evinces a complete disregard for Chapter 74‘s unambiguous statutory criteria.
Id. at 323. Clearly, Justice Willett‘s concern involves an egregious violation of the statutory
requirements.
Here, Appellee‘s first expert report, at the very least, amounts to a deficient report. After
describing his qualifications (including reference to his attached curriculum vitae), the medical
records he reviewed, and the treatment at issue, Appellee‘s expert squarely takes on the
applicable standards of care, Appellant‘s departure from these standards of care, and the manner
in which Appellant‘s departure from the standards caused Appellee harm.19 More specifically,
Appellee‘s expert states:
The patient was a high myope, which is a known risk factor for Retinal
Detachment. He also had the additional risk factor of Lattice Degeneration,
which was never noted by Dr. Fagadau. With these risk factors as well as
pigmented cells in the vitreous noted by Dr. Allen, the patient should have been
19
C.R. at 44-46; Appendix 3 to Brief of Appellant at 1-3.
Brief of Appellee Thomas H. Wenkstern
Page 12
seen at least within the first two weeks after the exam of 8/23/06. Scheduling the
patient for a six-month to one year follow-up was below the standard of care. The
patient was also noted to have Lattice Degeneration in the other eye by Dr. Allen.
Because the patient was not reexamined and treated soon enough, he developed
Retinal Detachment requiring several surgeries. In other words, if the tears were
noted sooner, they could have been treated with laser and all of the subsequent
surgeries avoided. The patient did not have a Retinal Detachment on the exam of
8/23/06 and did have a Retinal Detachment on the exam of 9/27/06. Within
reasonable medical probability the patient‘s ophthalmologic conditions could
have been properly and successfully treated before a Retinal Detachment
occurred. All my opinions herein are provided within reasonable medical
probability.20
From this paragraph and the report in its entirety,21 we learn Appellee‘s expert opines that
(1) Appellee had characteristics (i.e., being a high myope) and medical conditions (i.e., lattice
degeneration and pigmented cells) that indicated he was at high risk for developing retinal
detachment; (2) Appellant should have either personally seen or referred Appellee for further
treatment by at least September 6, 2006 (and we know from earlier in the report that Appellant
failed to do this); (3) Appellant failed to examine Appellee‘s left eye, which was below the
standard of care; (4) scheduling Appellee for a six month to one year follow-up was below the
standard of care; (5) reexamination would have resulted in the tears being noted sooner; (6) laser
treatment could have repaired Appellee‘s eyes without the need for the many further surgeries he
endured; and (7) Appellant‘s departures from the standard of care caused Appellee to suffer
retinal detachment requiring several subsequent surgeries, as well as causing Appellee‘s other
ophthalmological conditions.
Put simply, the specific conduct in the crosshairs of Appellee‘s first expert report is
Appellant‘s failure to personally examine, reexamine, and/or refer Appellee for further treatment,
20
C.R. at 45-46; Appendix 3 to Brief of Appellant at 2-3.
It is important to note that Appellant improperly (and conveniently) ignores the rest of Appellee‘s expert report as
if the only opinions contained therein are found under one specific heading. As the Court is well aware, Appellee‘s
expert report does not need to take on some exact form or contain ―magic words.‖ Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002); see also Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.App.—Dallas 2007, no pet.)
(finding that substance of opinion, not technical words used, determines whether report complies with statute).
21
Brief of Appellee Thomas H. Wenkstern
Page 13
which failure(s) caused Appellee harm. Thus, Appellee‘s first expert report contains sufficient
specificity to inform Appellant of the conduct Appellee has questioned, and it certainly amounts
to at least a deficient report. See Ogletree, 262 S.W.3d at 321. Moreover, because Appellee‘s
expert has explained a course of treatment that would have prevented Appellee‘s harm (i.e.,
reexamination or referral within at least 2 weeks and laser treatment would have avoided the
several subsequent surgeries and injuries), there is a sufficient basis for the trial court to conclude
Appellee‘s claims are meritorious.
Thus, this document is more than just ―provider
correspondence or perhaps ‗medical or hospital records or other documents‘ or other healthrelated paperwork that, while related to the patient‘s care and condition, neglects altogether to
address the rudimentary elements of an expert report.‖ See id. at 323.
CONCLUSION AND PRAYER
Appellee‘s second expert report quite clearly and sufficiently implicates Appellant‘s
inadequate medical treatment of Appellee, and it further provides sufficient basis for this Court
to determine that Appellee‘s claims have merit. As such, Appellee has fulfilled his statutory
expert report obligations, and the trial court did not abuse its discretion in denying Appellant‘s
Second CPRC Section 74.351 Motion to Dismiss. Moreover, to the extent Appellant complains
that Appellee‘s first expert report failed to meet the statutory requirements, such complaints
cannot be addressed by this Court, as the Court lacks jurisdiction to address same. Finally, even
if this Court finds that it has jurisdiction to address Appellee‘s first expert report, the trial court
did not abuse its discretion in denying Appellant‘s First CPRC Section 74.351 Motion to Dismiss
because Appellee‘s first expert report amounted to at least a ―deficient report‖ as opposed to ―no
report.‖
Brief of Appellee Thomas H. Wenkstern
Page 14
WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests that this
Court affirm the trial court‘s decision to deny Appellant‘s Second CPRC Section 74.351 Motion
to Dismiss.
Respectfully Submitted,
Edwards & de la Cerda, L.L.C.
Attorneys and Counselors at Law
_________________________________
Peter de la Cerda
State Bar No. 24045769
Kevin Edwards
State Bar No. 24040853
6060 N. Central Expy., Ste. 560
Dallas, Texas 75206
(214) 237-2942 (phone)
(214) 237-2969 (fax)
ATTORNEYS FOR APPELLEE
THOMAS H. WENKSTERN
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing pleading was served on all
counsel of record in accordance with the Texas Rules of Civil Procedure and the Texas Rules of
Appellate Procedure as follows:
Via Regular Mail
Brent R. Walker
Stewart Stimmel, LLP
1701 N. Market St., Ste. 200, LB 42
Dallas, Texas 75202
Attorney for Defendant
Certified to the 10th day of November, 2009 by:
_________________________________
Peter de la Cerda
Brief of Appellee Thomas H. Wenkstern
Page 15