## In t he Court of Ap peals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00217

- CV

___________________________

On Appeal from the 90th District Court Young County, Texas Trial Court No. 3417 9

Before Kerr , Womack, and Wallach, JJ. M emo randum Opini on by Jus tice Wallach 

### B RIAN 

### N ORTHCUTT 

### , M.D. , Appellant
V 

### . R ONNIE 

### C. S TEPHENS AN D 

### R ICKY 

### S TEPHENS 

### , Appellees2 MEMORANDUM OPINION This case involves a health care
- liability claim. 1 Appellees Ronnie and Ricky Stephens, the sons of Peggy Celesta Stephens, sued appellee Dr. B rian North cutt contending that his negligence in treating th eir mother was a proxima te cause of their mother’s death. Dr. No r thcutt answered the suit

. The Stephens es then served an “expert report” by Seth Womack, M.D. Northcutt timely objected to the rep ort and

mov e d to dismiss the case because the repor t failed to ad dress the element of proximate cause , a required element in a health care
- liability claim

. The Stephens es filed no written response to the objections and motion. After a hearing , the tr ial co u rt denied the motion. This inter loc utory appeal followed. W e hold that the report of Dr. Womack was deficient for failing to address the issue of causation ; thus , we reverse the order of the trial court denying dismissal of the case a n d r emand the case to the trial court for further proc eedings. 2

1 The Stephens es agree that this case i s a h ealth care
- liabili ty cla im.

2 T he Stephens es did not request a 30

- day extension in the trial court to cure their report and ha ve not request ed one on appeal

. However, Dr. Northcutt has requeste d that, in the even t of reversal, we remand the matter to th e trial cour t for consideration of wh ether a 30

- day extension is appropriate under Tex. Civ. Prac. & Rem. Code Ann. Section 74.351(c)

. See Leland v. Brandal , 257 S.W. 3d 204, 208 (Tex. 2008) ; Esto rque v. Schafer , 30 2 S.W.3d 1 9 , 32 (Tex. App.

— Fort Worth 200 9 , no pet.). While the b ar is “mini mal ” to qualify for the granting of an extension, the granting of an extension is not automatic. Scoresby v. Santil lan , 346 S. W.3d 546, 549, 554 (Tex. 2011) ; s ee Post A cute Me d

. , LLC v. Montgomery , 514 S.W. 3d 889, 89 4 (Tex . App.

— Austin 2017 , no pet.); Lare do Tex

. Hosp. Co., L.P. v. Gonzalez , 363 S.W

. 3d 255, 259 (Tex. App.

— San Antonio 2012, no pet.); Velandia v. Contreras , 35 9 S.W.3d 674, 679 (Tex.3 I. Background 3 Ms . Step hens experienced a bdominal pain and went to the emergency room at Graham Regional Medical Center two times on March 9, 2018

. In the morning visit, she re ported abdomina l pain from the day before that wa s “constant, cramping , wor se with movement, and better with rest.” Three days before this visit, she had undergone stenting of arteries in both legs due to peripheral vascular disease. Dr. Nor thcutt ordered labs, which revealed an elevated w hi te blood

- cell count , and a CT scan, which showed “dilated flu id fil led small bowel loops in the right lower quadrant with some adjacent fluid and possible wall thickening.” Dr. Northcutt documented t hat th e “CT fin dings suggest colitis.” But th e Stephens es ’ expert , Dr. Seth Womack, reported that the treating radiolo gist i nterpreted the CT as “without colonic wall thickening or pericolonic inflammation.” Dr. Northcutt eventually discharged Ms. Ste phens wi th an o rder to increase fluid inta ke and wi th prescriptions fo r nau sea and vomiting. Dr. Northcutt’s diagnosis “was gastr oenteritis.” H e instructed her to return “if nausea and vomiting continue[d] without the development of diarrhea.” Later tha t night, Ms. Stephens got o ut of bed , vomited, became v ery w eak and collapsed. EMS found her on the bedroom floor. App.

— Housto n [14 th Dist.] 2011 , no pet.). We express no opinion on the propri ety of an extensi on here

. 3 The Stephe ns es a nd Dr . Northcutt agree that Dr. Northcutt’s summary of the facts taken from Dr. Womack’s report and the proceedings in the trial court are accurate and w e will utilize his recitation s .4 “She was ve ry pal e, diaphoretic, and slow to respond.” She had an elevated heart rate and blood

- glucos e level

. EMS took her back to Gra ham Regio nal Medical Center where Dr. Northcutt again evaluated her. Dr. Northcutt documented that she passed out (“a syncopal event ”) aft er nausea and vomiting. His diagnosis was syncope and gastroente ritis a nd he recommended her admission to the hospital

. A nurse pra ctiti oner admitted Ms. Stephens from the emergency room. The nurse practitioner noted , “Ms. Stephens had diffuse abdomi nal pa in with nausea, vomiting, and dry heaving.” Th e nurse pr act itioner’s ph ysical exam found that “Ms. Stephen s ’ [ s ] abdomen was soft but d iffusely tender , ” and Ms. Stephens ’ s discomfort prevented the nurse practitioner from feeling the liver. The next da y, Ms. Stephens vomited “dark brown” material, whi ch could be a sig n of gastrointe stinal ble eding and bowel ischemia. He r hem oglobin had dropped and her white blood cell count had risen

. A different doctor (Gerald Mitchell) transferred Ms. Stephens to the emerge ncy room of Hu guley Medical Cen ter where Dr. M ehboob Qas sam examined her. He found her “ alert, ill app earing, an d in mild distress.” She had an elevated heart rate and “abdominal tenderness with voluntary guarding.” He ordered a CT scan, “which showe d a me di um to high grade small b owel obs truction w ith a possible transition point at the center of the lower abd omen.” Considering Ms. Stephens’ s atherosclerotic disease and recent stenting, the radiologist who interpreted this CT scan said that an “ ischem ic etio logy should b e5 con sidered.” Dr. Qassam diagnosed her with mesenteric i schemia and small bowel obstruction. He consulted with a surgeon, Dr. Wesley Marquart. Dr. Marquart took Ms. Stephens for emergency surgery that afternoon. He “found an ischemic s eg ment of bo wel associated with a strangulated int ernal hernia .” He also “found other patchy areas of ischemic small bowel globally,” that he thought “was from a thromboembolic event from her recent [ arterial stenting ] .” Ms. Stephens “developed sep tic shoc k due t o small bowel ischemia and died t he next day. ” The Stephens es ’ petition alleged that Dr. Nor t hcutt was negligent by:

• not properly diagnosing Ms. Stephens’ s small bowel obstruction;

• discharging her with the wron g diagnosis;

• fail ing to properly treat her mechanical bowel obstruction;

• failing to order ap propriate te sts;

• failing to pr operly evaluate diagnostic studies and order indicated t reatments;

• failing to prescribe appropriate medications; and

• failing to order timely diagnostic studies. The Stephens es claimed th at Dr. Northcutt’s conduct w as the proxi mate cause o f Ms. Stephens’ s death. Further, t he Stephens es alleged that Dr. Northcutt ’ s acts and omissions “constitute [d] a direct and proximate cause of [Ms. Ste phens’ s ] untimely death and the d amages” de scribed in the p etition.6 Dr. Woma ck’s “expert report” is six p ages long with his signature on the seventh page. 4 The first page of his report addresses his qualifications and the materials he re viewed. Pages 2 a nd 3 summarize the pertin ent facts he glea ned from the records he revi ewed. Pages 4

– 6 set out his o pinions about the case. Dr. Womack identifie d six areas where Dr. Northcutt breached the standard of care and the reasons why. The asserted breaches of the s tandard of care were: 1) the failure to

co nsult a surgeo n on both emer gency room vi sits; 2) the failure to prop erly interpret the radiologist’s reading of Ms. Stephens ’ s CT scan; 3) the failure to obtain a repeat CT scan on the second emer gency room visit; 4) the failure to obt ain repeat labs duri ng the second emergency room visit; 5) the failure to obta in and monitor vital sig ns du ring both emergency room visits; and 6) the failure to obtain an EKG during both of her emergency room visits. Dr. Womack’s report is devoid of any o pin ions on how any o f the alleged departures fro m the standard of care caused Ms. Stephens ’ s inj ury or death or how the outcome would have been altered if the standards had been met. II. Standard s of Review and Applic able Law We review a trial cour t ’ s decisio n on a motion to dismiss a health care liabil ity claim for an abuse of discret ion. See Am. Transitiona l Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873, 875 (Tex. 2001); CHCA Clear Lake, L.P. v. Stewart , No. 01

- 19

- 00874

-

4 Dr. Womack claims to be a physici an , board certified i n eme rgenc y m edicine. His qualifications are not at issue here.7 CV, 2021 WL 3412461, at *8 (Tex. App

. — Houston [1 s t Dist.] Aug

. 5, 2021, no pe t.) (mem. op.). A trial court abu ses its discretion when i ts decision is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K

- Mart C

orp. v. Honeycutt , 24 S.W.3d 35 7, 360 (Tex

. 20 00). In revie wing the adequacy of an expe rt report, t he expert report must provide a “fair summary ” of the expert ’ s opinions on (1) the applicable standard of care, (2) how the care rendered by the defendant ph ysician or health

- care provider failed to meet the standard of care, and (3) the ca usal relationship between that failur e and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code Ann . § 74.351(r)(6); see also Certified EMS, Inc. v. Potts , 392 S.W.3d 625, 630 (Tex. 2013) ; CH CA Clear La ke, L.P. , 2021 WL 34124 6 1, at *8 . A “fair sum mary” of the expert ’ s opinions means that, a t the lea st, the report must state more than the expert ’ s mere conclusions on the standard of care, breach, and causation; it must instead explain the basis of the exp ert ’ s opinion to link the conclusions to t he facts of the case. CHCA Clear L ake, L.P. 2021 WL 34124 6 1, * 8 ; s ee also Je linek v. Casas , 328 S.W.3d 526, 539 (Tex. 2010) ; Bowie Mem ’ l Hosp

. v. Wright , 79 S.W.3d 48, 52 ( Tex. 2002). An expert r eport quali fies as an “objective go od faith effort” to a void di smissal if it discusses each element of the health ca re liability claim wi th sufficient specificity so that it (1) informs the defendant physician or health

- care provider of the specific conduc t that the plai ntiff questions or a bout which the plaint iff com plains and (2) provides a basis for the trial cour t t o conclude that the p laintiff ’ s health care8 liability claim has merit. Miller v. JSC Lake Highlands Operation s, LP , 536 S.W.3d 510, 513 (Tex . 2017)

. Th e ex pert report need not use any particular w ords, a nd it may be informal, “but bare conclusions will not suffice.” Scoresb y , 346 S.W.3d at 555

– 56

. In determining whether an expert report constitutes an “objective good faith effo rt” to address each element, “a trial court m ay not draw inferences; instead, i t must exclusively rel y u pon the information c ontained within the four corners of the report.” CHCA Clear Lake, L.P. , 2021 WL 3412461 a t *9 (quoting Puppala v. Perry , 564 S.W .3d 190, 19 7 (T ex. App.

— Houston [1st Di st.] 2018 , no p et. ) )

. As noted by the San A ntonio C ourt of Appeals , The report need not use any pa rticular “magical wor ds” such as “proximate cause,” “foreseeability,” or “cause in fact.” [ Columbia Valley Healthcare Sy s. v . Zamar ripa , 526 S.W.3d 453, 460 (Tex. 2017 ).] On the other hand, “merely inc anting words does not suffice.” Id . Also, “me rely providing some insight into the plaintiff ’ s claims does not adequately address cau sation.” Ten et Hosps. Ltd. v. Love , 347 S.W .3d 743, 75 5 (T ex. App.

— El Paso 2011, no pet.). When a report fails to outline ho w a suggested action “would have resulted in different care and treatment, or a different outcome” then there is “a broad analyti cal gap between the alle ged breach and the ult imate harm” and thus, the report is “insufficie nt to establish causation.” Id

. Th ilo Burzlaff, M.D., P.A., v. Weber , 582 S.W.3 d 314, 325 (Tex. App.

— San Antonio 2018, no pet.) ( holding conclusory expert report on causa tio n de ficient) ; s ee also Zamarripa , 5 26 S.W. 3d at 4 60

. An expert re p ort that does not addre ss causati on is deficient. M itchell v. Swanson , No. 02

- 19

- 00460

- CV, 2020 WL 6065986, at *4

– 5 (Tex. A pp.
— Fort Worth Oct

. 15, 2020, no pet.) (mem. op.) ; Nexion Health at Sout hwood, Inc.9 v. Judalet , No. 12

- 08

- 00464

- CV , 2 009 WL 3019717, at *3 (Tex. App.

— Tyler Sept

. 23, 2009, no pet.) (me m. op.). III. Analysis The analysis of this matter is very straightforward . T he only expert report proffered by t he Stephens es to meet their statutory ob ligation was Dr. Womack’s repor t. Although Dr. Womack described in signific ant detail h is opinions about Dr. No r thcutt’s breaches of the standards of care, he never offered any opinion s o r explanations, using magic words, conclusions or otherwise, about ho w those breaches caused injury o r death to Ms. Stephens

. The need to explai n the causal connection between br each es of the standards of care and the claimed injury or death is particularl y a cute in cases where t he allegations are that a patient , who had a pre
existing condition, would have expe rie nced a bette r o utcome had earlier diagnosis or treatment been under taken

. THN Physicians Ass ’ n v. Tiscareno , 495 S.W. 3d 914, 923 (Tex. App.

— El Pa so 2016, no pet.) ( holding repor t inadequate because expert merely of fered conclusory opinion that failure t o r ecognize and treat a pre

- existing infection was substantial cause o f harm to the plaintiff); Jones v. King , 255 S.W.3d 156, 160 (Tex. App.

— San Antonio 200 8, pet. denied) ( concluding expe rt report inadequate because it failed to explain how a 48

- hour del ay in diagnosis ca used the patient ’ s alleged injuries); Costello v. Ch ristus Santa Rosa Health Care Corp. , 141 S.W.3d 245, 249 (Tex. App.

— San Antonio 2004, no pet. ) ( holding exper t report claiming that patient would ha ve survived but for the delays in di agnosing and treating her was10 insu ffic ient because it failed to describe “what treatment would have or could have been available, that th e p atient was a candidat e for the unknown tr eatment, or that the unknown treatment cou ld have or w ould have been effect ive”)

. In this case, the record re view ed by Dr. Womack reflects that three days before Ms. Stephens’ s first emergency visit to Dr. Northcu tt on M arc h 9, she had a rt erial
stents place d in both legs because of ather o sleroti c d isease

. At surgery on March 10 , h er surgeon found a segment of isch emi c bowel associated with a strangulated hernia along with other patchy areas of ischemic sma ll bowe l globally , which h e believ ed was fro m a thromboembolic event from her recen t e ndovascular procedure. Dr. Womack footnote d this finding as follows: “[D ] uri ng endovascular procedures, the internal walls of blood vessels can be disrupted causing plaque s/clots to dislodge wh er e they proceed to o bstruct a smaller blood vessel, distall y; and cause is chemia. ” It was incumbent on D r. Womack to explain how Ms. Steph ens was injured, or how her death was caused, by the breaches of the standard of care which h e outlined in his report, especially since he noted her pre

- existing condit ion that appear s to have precipitated her deterioratio n and contributed to her demise. T he Stephens es argue that we should infer that Dr. Northc utt’s alleged negligent conduct was a caus e of Ms. Stephens ’ s death. Howe ver, we are limited to the four corners of Dr

. Womack’ s report and we cannot infer or make ed ucated guesses about causation. Me tho dist Hosp

. v. Addison , 574 S.W.3d 490, 505 (Tex. App.

— Houston [14 th Dist.] 2018, no pet.) ( “Our review is limited to the four corners of the11 report, and we cannot make inf erences t o establish the causal connection” ( quo ting Rice v. McLaren , 554 S.W.3d 1 95, 201 (Tex. App.

— Houston [14th Dist.] 201 8, no. pet.) ) ; Austin Heart, P.A. v. Webb , 228 S. W.3d 27 6, 281 (Tex. App.

— Austin 2007, no pet.) ( c oncluding expert report that r equ ired read er to infer or make educated guess as
t o which of two doctors breached st and ard of care and caused injury was not adequate). Because Dr. Womack’s report was inadequa te r egard ing the element of causation , the trial court abused its discre tion in overruling Dr. Northcutt’s Motion to Dismiss. We r everse the trial court’s order den yin g Dr. Northcutt’ s Motion to Dismiss and remand the case to the trial court for further proceedings consistent with this op inio n .

/s/ Mike Wallach Mike Wallach Justice Delivere d: January 6, 2022