Opinion filed April 22, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 00204

- CV

__________ GARY W. ELAM, M.D. AND GARY W. ELAM, M.D., P.A. , Appellant s

V.
ERIK GALINDO, Appellee

On Appeal from the 358 th District Court

Ector County, Texas

Trial Court Cause No. D

- 126,521

M E M O R A N D U M O P I N I O N
This is an interlocutory appeal from an order denying a motion to dismiss a health care liability claim pursuant to T EX

. C IV

. P R AC

. & R EM

. C ODE A NN

. § 74.351 (Vernon Supp. 2009 ).
We affirm. Gary W. Elam, M.D. and Gary W. Elam, M.D., P.A. ( Dr. Elam) assert in two issues that the plaintiff’s expert report is insufficient to satisfy the requirements of Section 74.351 wi th respect to causation. In the first issue, Dr. Elam contend s that the expert report was inadequate with respect to the causal relationship between the alleged negligence and Erik Galindo’s alleged2

injury of morbidity of treatment. In t he second issue
, Dr. Elam attack s the report’s adequacy with respect to the causal relationship between the alleged negligence and Galindo’s alleged injury of risk of death.
We review a trial court’s determination regarding dismiss al of a claim pursuant to
Section 74.351 under an abuse

- of

- discretion standard. Bowie Mem ’ l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002). A trial court abuses its discretion by acting in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. Th e issue before a trial court considering a motion to dismiss brought pursuant to Section 74.351 is whether the report represents a good faith effort to comply with the statute. Section 74.351( l ); Am

. Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 87 8 (Tex. 2001). To constitute a good faith effort, the report need not marshal all of the plaintiff’s proof, but it must (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the tria l
court to conclude that the claims have merit. Palacios , 46 S.W.3d at 8 78

- 79

. The expert report must provide “a fair summary of the expert ’ s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rende red 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. ” Section 74.351(r)(6). The expert must explain the basis
of hi s statements to link his c onclusions to the facts. Bowie , 79 S.W.3d at 52.
Galindo allege s that Dr. Elam performed surgery on Galindo to remove a mass in his jaw

area in 2002 but that Dr. Elam negligently failed to inform Galindo of the pathology results: lymphocyte predominant Hodgkin disease (cancer). Galindo asserts that he did not learn that he
had cancer until 2008 after a nother mass develop ed in the same area. He also asserts that
Dr. E lam fabricated an entry in Galindo’s medical records to show that the pathology results were discussed with Galindo and his family in 2002 and that Galindo was referred t o a cancer center at that time. In an attempt to comply with Section 74.351, Galindo obtained an expert report from
Dr. Tyler Curiel. In h is report, Dr. Curiel states that Dr. Elam breached the standard of care by failing to notify and discuss the pathology findings with Galindo. With respect to causation,
Dr. Curiel’s report provides: 2. The treatment for Hodgkin disease in 2002 was inade quate. The patient underwent simple excision of the lymphomatous mass in 2002. Treatment for3

stage IA Hodgkin disease should also have included radiation therapy at a minimum, which was not offered or performed.
3. The treatment and diagnosis delay b etween November 2002 and August 2008 significantly increased morbidity of treatment. In November 2002, the Hodgkin disease was clinically stage IA . . . . In August 2008 the stage was IIIB. Stage IA Hodgkin disease in this setting can be managed with lo cal radiation therapy alone. Stage IIIB disease requires high

- dose chemotherapy as proposed and undertaken. Treatment for stage IA Hodgkin disease in 2002 could have been accomplished without the attendant risk of high

- dose chemotherapy, which is require d in stage IIIB. Risks of this chemotherapy include . . . .
4. The treatment and diagnosis delay between November 2002 and August 2008 significantly increased risk of death. S tage IA Hodgkin disease is a highly curable disease with 8

- year survival arou nd 99%. Stage IIIB Hodgkin disease is still treatable [but has a] 5

- year survival around 85%. Treatment failure and relapse rates are higher in stage IIIB compared to stage IA Hodgkin disease. Thus, to a reasonable degree of medical probability, surviva l was compromised by the treatment delay. Further, there were no atypical features of the Hodgkin disease in 2002. Current atypical features suggest (but do not yet diagnose) transformation. Transformation in Hodgkin disease is a grave complication, oft en
r esulting in incurable disease.
Dr. Elam argues that the report fails to establish the needed causal link between the alleged negligence and any compensable injury suffered by Galindo. Dr. Elam asserts that, to be sufficient, the report had to establish that Dr. Elam’s negligence caused the 2008 tumor, that Galindo has or probably will develop morbidity related to the chemotherapy treatment of the 2008 tumor, and that Galindo will likely not survive the recurrence of cancer. We disagree. Although Dr. Elam asserts that “the 2008 tumor is the root cause behind this alleged injury,” Dr. Curiel suggests that Hodgkin disease, which was diagnosed but not treated in 2002, is the
root of Gali ndo’s injuries. Dr. Curiel’s report indicates that, during the delay, the disease advanced from stage IA, which is “highly curable,” to stage IIIB with atypical features suggesting transformation, which is “often . . . incurable.” The report also indicat es t hat the delay in treating Galindo’s Hod g kin disease caused an increase in the morbidity of treatment from radiation alone to high

- dose chemotherapy. The trial court could have reasonably determined that Dr. Curiel’s report represented a good faith effort as to the causal relationship between Dr. Elam’s failure to meet the standard of care and Galindo’s damages. For a review of cases in which expert reports were found to adequately link causation of injuries to delay s in health care services, see Polone v.4

Shearer , 287 S.W.3d 229, 236

- 37 (Tex. App.

— Fort Worth 2009, no pet. ); Mosely v. Mundine
, 249 S.W.3d 775, 780

- 81 (Tex. App.

— Dallas 2008, no pet.); Harris County Hosp ital Dist rict v. Garrett , 232 S.W.3d 170, 181 (Tex. App.

— Houston [1st Dist.] 2007, no pet.) ; Hillcrest Baptist
Medical C enter v. Wade , 172 S.W.3d 55 (Tex. App.

— Waco 2005, pet. dism’d); and In re
Barker , 110 S.W.3d 486 (Tex. App.

— Amarillo 2003, orig. proceeding)

. We cannot hold that the trial court abused its discretion by den ying Dr. Elam’s motion to
dismiss. Dr . Elam’s issues are overruled.
The order of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE

April 22, 2010 Panel consists of: Wright, C.J., McCall, J., and Strange, J.