NO. 07-02-0441 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D NOVEM BER 7, 2 003

______________________________ CARROL L. SUT TON, MARY ANN JOHNSON AND KATHY HAMMONDS, INDIVID UALLY A ND AS THE HEIRS AND REPRE SENTATIV ES AN D/OR AS N EXT FR IENDOF A. T. SUTTON, D ECEASE D, AP PELL ANTS V. LAYNE COLLUMS, M.D. OF W ILBARGER COUNT Y, TEXAS, APPELLEE

_________________________________ FROM THE 4 6TH DISTRICT COURT OF W ILBARGER COUNT Y; NO. 22,484; HON ORABLETOM NE ELY, JU DGE

____________________________________ Before QUINN and REAVIS and CAMPB ELL, JJ.
MEM ORAN DUM OP INI ON Appellants Carrol L. Sutton, M ary Ann Johnson, and Kathy Ha mm onds, surviving childr en and heirs of A.T. Sut ton, deceased, challenge the trial court’s order dism issing1 Repealed by Act of June 2, 2003, 78th Leg ., R.S., ch . 204 , § 10 .0 9, 20 03 Te x.

Sess. Law S erv., current versi on at Tex. Civ. Prac. & Rem. Code Ann. § 74 .001 - 74.507 (Vernon Pam ph. Supp. 2004). All citations to the Act herein are to art icle 459 0i of the TexasRev is e d Civil Practice and Rem edies Code that was in effect at the tim e of the underlying suit. 2 the ir claims against Layne Collums, M .D. Presenting a so le issue, the heirs contend the trial court

erred in granting Dr. Collums’s mot ion to reconsider his mot ion to dismiss w ith prejudice for failure to comply with article 4590i, section13.01 of the Medical Liabili tyand Insurance Im provem ent Act. 1 Based upon the rationale expressed herein, we affirm.
On th e mo rn i ng of

No ve mbe r 2 5, 19 98 , D r. Co l l ums exa mi ned Sutton for loss of hearing and vertigo. Sutton was diagnosed with bilateral ceru m en im paction in h is ears and was t reated by irrigation and removal of the cerumen. The following m orning Sutton’s sy mp to ms worsened a nd he contacted Dr. Collums, who suggested he go to th e emergency room. W hile at the emergency room, Sutton w

as exam ined by anoth e r physician and a CT scan and other tests were perform ed. Sutton w as discharged with a diag nos is of labyrinthi tis . That sam e evening, Sutton returned tothe em ergency room com plaining of being weaker and having slurred speech. A s econd CT scan revealed a stroke to the left cerebral systemand he wa s adm itted to W il ba rg erGe ne ra l H os pi ta l. Two days late r hew as t ran sfe rre d toa ho spital in W ichita Fall s and on Decem ber 17, 1998, he died.3

Bytheir lawsuit, the heirs contended the failure of Dr. Collums todiagnose and treat Sutton’s str

okeproxi m ate lycaused his death. In his expert report in support o f the heirs’ case, Dr. Paul Carl Friedman agreed tha t cleani ng Sutton’s ears was one poss ib le treatm entf

or the sym pt oms

initial ly presented. How ever, he also states that failure to diagnose and treat Sutton’ s stroke resulted in his death.
Doctor Collums filed a m otion to reconsider his mot ion to dismiss the cause alleging the expert report did not s atisfy the requirements of article 4590i of the Act. He challenged the report a s inadequa te for f ailing to addres s the a ppropri at e stand ard of care for a general pra ctit ioner in tre ating a patient like Sutton. He also questioned the failure to include any tests or proced ures that should have been perform ed by an ordinarily prudent general practitioner as well as the failure to indicate what diagnoses a general practitioner should have m ade based on tests and procedures. Bas ed on Dr. Collum s’s m otion, the trial court dismissed the suit. By their sol e issue, the heirs contend the trial court erred w hen it granted D r . Collu ms’smotion to dismiss pursuant to article 4590i, section 13.01. We disagree. A trial court’s decision to di smi ss a case pursuant to article 4590i, section 13.01 is reviewed under an abuse of discretion standard. Am erican Transitional Care v. Palacios, 46 S.W.3d 873, 875 (Tex . 2001). A trial co urt abuses its discretion when it acts arbitrarily or
unr eas ona bly

without reference to any guidi ng rules or princi ples. W alker v. Guti errez,4

111 S.W.3d 56, 62 (Tex . 2003), citing Downer v. A quama rine Operators, Inc., 701 S .W .2d 238, 241-42 (Tex. 1 985). The issue for the trial court is whether the re port represe nts a good fait h ef

for t t o co m ply

with the stat utory definition of an expert report. Palaci os , 46 S.W.3d at 878

. The rep ort m ust con tain a fair sum m aryof the ex pert’s opinion about the (1) applicable standard of care; (2) ma nner in which the care failed to m eet that standard; and (3) causal relationship between that failure a nd the c laimed injury. Article 4590i, § 1301(r)(6 ); Palaci

os , 46 S.W.3d at 878. The report m ust provide sufficient information to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) a basis for the trial court to conclude the clai ms hav e m erit. Palaci os , 46 S.W.3d at 879.
The tria l cou rt s hou ld loo k nofur the r th an wit hin the fou r corners of the report to determ ine whether it represents a good faith effort tocom ply with the def

inition of an expe rt report. Id . at 878. A

plaintiff is not required to marshal all his proof, but m ust include the expert’s opinion on each of the three elem ents required by the Act. Id. An exp ert repor t thatme rely states conclusions or om its any of the statutory requirem ents doe s no t fu lfill the purposes of an expert report. Id . at 879.
The heirs argue the trial court’s dism issal was based on Bow ie Mem orial Hosp. v. W right, 79 S.W.3d 48 (Tex. 2002), for failing to adequately allege causation and failing to connect the breach of the standard of care to the inj ury. They distinguish the reports in5

Bowie and in Palaci

os and assert that

Dr. Friedman expressed his opinion on causation in his report by stating that D r. Collums’s failure to diagnose a stroke and treat it w ith blood thinner medications resulted in Sutton’ s death. In his report, Dr. Friedm an provides in relevant part:
It wasa serious error and negligent to fail to ask the question ‘w hy did not the treatm ent restore his hearing and balance?’, then analyze thean s wer and act thereon. Had that been don e, the a ppr opr iatediag nos is of

“br ain attack” or “stroke” would have been m ade, and appropriate treatm ent, i.e. administration of

a blood thi nner would have been ini tiated, l imiting the eff ect of the stroke. . . . M r. Sutton’s d ecline and d eath w as a res ult of tha t failure to diagnose and treat. The standard of care breached is: That which an ordinarily prudent health care provider (in this case, a genera l practitioner)wou l d d o u nd er th e s ame or similar ci rcumstances. Such a phys ician would, under the circumstances, have ma de a proper

diagnosis after further exam ination following the failure of the initial tr

eatm ent (ear cleaning).
As re quired b y Palaci os , we m ust focus our analysis only on the info rm atio n contained in the four cor ners of the repor t. Although i t discusses what a gen eral practitionerwould do under the s ame or similar circum stances, it does not a ddres s the causal relationship between the alleged “serious error” in not questioning why S ut ton ’s hearing and balance were not restored after his ears were cleaned and his death. Also, the report does not discuss any tests or procedures t hat should have been perform ed by
an ordinarily prudent general practitioner on a patient with Sutton’s sy mptom s. No
con nec tio n is pro vided between Dr. Col lums’s failure to diagnose an d treat stroke6

sy mpt oms and Dr. Fri edman’s concl us ory sta tem ent

tha t th e alle ged failu re r esu lted in Sutton’s dea th. Ba sed on t he in for m atio n pr ovid ed in the report, we cannot conclude the trial court abused i ts disc ret io n in d ism iss ing t he h eirs ’ c aus e of act ion. Theheir

s’ sole issue is overruled. Accordingly, the j udgme nt of the trial court is affirmed.
Don H. Rea vis Justice