NO. 07-04-0018-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A MAY 27, 2004

______________________________ IN RE: THOMAS R. WINDISCH, M.D. AND LUB BOCK DIA GNOSTIC R ADIOLOGY, L.L.P.

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
In this original proceeding relators Thomas R. Windisch, M.D., and Lubb oc k DiagnosticRadiol ogy, L.L.P ., seek a writ of m andamus d irecting the Hono rable Bl air Cherr y to grant their

motion to dismiss the medical malpractice action pending against them. We will co nditiona lly gran t relators ’ petiti on.
Windisch is a medic al doctor, described in his mandamus petition as a n interventional neuroradiologist. In October 2001 Cynthia Powell was diagnosed with a large brain tumo r. A neurosurgeon referred Powell to Windisch for the i nterventional1 Angiogr aphy was

used to i dentify a rteries su pplying blood to the tumor

. 2 Embolization involves placement of small particle s and wires into the blood vessels for the pu rpose of c utting of f the blo od suppl y to a tumo r.
3 The Act was former Article 4590i of Texas R evised Civil Statutes. Act of May 5, 1995, 74th Leg., R. S., ch. 140, § 1, 1995 Tex. Gen. Laws 985-87. It was repealed by Act of June 2, 2 003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. The cu rrent version appears at Tex. Civ. Prac. & Rem. Code A nn. § 74.001 - 74.507 (Vernon Pamph. Supp. 2004). All section references in this opi nion are to the Act prior to its repeal. -2- procedures of angiography 1 and embolization 2 in preparation for surgery. After performance of those two procedures, images showed a small h emorrhage in Powell’s brain. She subsequently suffered from seizures and significant neurolo gical im pairment.
Real Party in Interest Loretta Ray, acting as next friend for Powell, brought suit in November

2002 ag ainst Win disch, al leging m edical m alpracti ce. In an effort tocomply w ith Section 13.01 of the Medical Liability and InsuranceImprovement Act, 3 Ray attached to her petition a written report from Gregory Shenk, M.D., a radiologist practicing in Illinois. That report recited that Shenk had reviewed a record created by Ray during Powell’s hospitalization, a report by Windisch on the procedure at issue, records from Powell’s neurosurgeon, and hospital records. Ray subsequently amended her petit i on to add Lubbock Diagnostic Radiology, L.L.P., as a defenda nt, alleging its vicarious liability.
The substance of Shenk’s opinion was that Win disch’s care of Powell fell below the accepted standard of care when he performed the embolization after determining that the primary blood supply to the tumor was the right anterior cerebral artery, rather than discontinuing the procedure and notifying the referring neurosur geon. Wi th regard to the causal relationship between Windisch’s conduct and Powell’s injury, the report stated “it-3-

was medically predictable and foreseea ble that the inap propriateemboliz ation pro cedure perf ormed by Dr. Th omas R. Wi ndisch would cau se cerebr ovascula r acciden t, left hemiplegia and poss ibly sub ara ch noid hem orrhage.”The rep ort made r eference to Shenk’s qualifications and had attached hi s curriculum vitae.
Relatorsfiled a motion to dismiss challenging Shenk’s report under Section 13.01(l) of the Act and arguing that the report failed to meet th e require ments of S ection 1 3.01(r)(6)

. Section 13.01(l)

requires a court to grant a motion challenging the adequacy of an expert report if it appears to the court the report does not represent a goo d faith effort to comply with the definition of an expert report in Section 13.01 (r) (6). Section 13.01(r)(6) defines “expert report” to mean:

a written report by an e xpert th at provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner i n which the care r endered by the ph ysician or health care provider failed to meet thestandard s, and the causal r e lat ionship between that failure and the injury, harm, or damage claimed.
Relatorsdid not

allege Shenk’sreport fa iled to a ddress ea ch of the subjects n ecessary to
an exp ert report

under th e statute or that hi s opinio ns were conclusor y. See Americ a n Transitional

Care Centers of Texas, Inc. v. Palacios , 46 S.W.3d 873, 878-79 ( Tex. 200 1); Forrest v. Danielson , 77 S.W.3d 842, 847 (Tex.App.–Tyler 2002, no pet). They challenged Shenk’s qualifications to render an expert opinion. Themotion relie d exclusively on the text of the st atute and Shenk’s report. After a December 5, 2003 hearing on the motio n t o dismiss and other motions then pending, the trial court overruled the motion to dismiss b y-4-

writte n or der signed January 14, 2004. Relators now se ek a writ of mandamus directing the trial court to g rant thei r motion to dismis s.
A writ of mandamus is an extraordinary remedy that will is sue only

(1) to co rrect a clear abuse o f di scretion or the violation of a duty imposed by l aw, when (2) there is no adequateremedy by law. See Canadian Helicopters v. Wittig , 876 S.W.2d 304, 305 (Tex. 1 994) (orig. pr oceeding). It is the relator's burden to show entitlement to the reli ef being requested. See John son v. Fourth Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). A court abuses its discretion by ruli ng arbitrarily, unrea sonably or withoutreference

to any gu iding ru les and principl es. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court also abuses its discretion by a clear failureto analyze or apply t he lawcorrectly, because trial courts have no discretion in determining what the law is or applying the law to th e facts. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 19 92).
The second requirement for mandamus relief is met only when a party is in danger of permanently losing substantial rights if the ruling of the trial court is allowed to stand. Id. at842. Because a purpose of the expe rt report requirement of Sectio n 13 .01 was to provide some protection to health care provi ders from t h e co st of litigating unmeritorious claims, t his court

has held that the erroneous failure to dismis s when a n adequa te report is not submi tted can m eet the se cond requ ireme nt for mandam us relie f. See In re Rodriguez , 99 S.W.3d 825, 828 (Tex.Ap p.--Amaril lo 2003) (orig. pr oceedin g); In re Morris , 93 S.W.3d 388, 390 (Tex.App.--Amarillo 2002) (orig. proceedi ng); see also In re Highland Pine s Nursing Home, Ltd. , No. 12-0 3-0221-CV, 2004 T ex. App. Lexis 5 91 (Tex. App.--Tyl er,4 See In re Woman’s Hospital of Texa s, Inc ., 47 Tex. Sup. Ct. J. 346 (Tex. March 5,

2004). See also In re Hill Regional Hosp. , No.10-04-0071-CV (Tex.App

. –Waco, April 14, 2004) (or ig. proce eding) (G ray, CJ, d issentin g).

5 See also

In reSchneider

, No. 14-04-0169-CV (Tex.App.–Houston [14 th Dist.], May 13, 2004) (orig. procee ding) (noting denial of petition in In re Woman’s Hospital and adhering to the cou rt’s p rior holding that mandamus is not available i n these circumsta nces). -5- January 21, 2 004) ( orig. pro ceeding ); In re Tenet Hosps., Ltd. , 116 S.W.3d 821, 827 (Tex.App.–El Paso 20 03) (orig . proceed ing); In re Collom & Carney Clinic Ass’n , 62 S.W.3d 924, 929 -30 (Tex .App.–Te xarkana2001) (o rig. proc eeding).
Atoral argument Ray contended that our Supreme Court’s recent denial of several petitions for writsof manda mus in he alth care liability cases indicates that mandamus relie f i s not appr

o priately granted to correct a trial court’s allegedly improper fail ure to dismiss such a case following a chall enge to t he Secti on 13.01 report. 4 Pending a definitive ruling from t he high c ourt, we will adhere in this case to this court’s previously-expressed view that mand amus is a vailabl e in a pr oper case
. Rodriguez , 99 S.W.3d at 828. 5 Rayalso urges that a challenge to a Section 13.01 report cannot be based only on
a challeng e to th e expert’s qualifications. Referring to the defini tion of expert report in Section 13 .01(r )(6), and to the discussion of that definition and of Se ction 13.01(l) in Palacios , Ray argu es that th e only i ssues to be consi dered in a motion under Se cti o n 13.01(l) are the report’s sufficiency as a fair summary of the expert’s opinionsconcerning liabili tyand causation. Ray points out relators do not argue that Shenk’s report did not contain a fair summary of his opinions concerning the ap plicable standard of care, i ts breach and the causal relationship between the breach and Powell’s injuries, and argues6 The trial court’s January 14 order also denied relators’ motion to exclude plai ntiff’s

expert, G regory Sh enk, M.D. -6- that relators ’ petiti on in thi s court th erefore si mply is a n eff ort to seek rev ersal of the trial court’s denial of their motion to exclude Shenk’s testimony, 6 relief not properly available by mandamus. We disa gree.
An expert report, as defined in Section 13.01(r)(6), must be the written r eport of an expert. Bydefinition also, a person giving opinion testimony regarding a physi cian’s breach of accepted standards of medical care is an expert onl y if qualified to testify under the requireme nts of Section 14.01(a). §13.01(r)(5)(A). A Section 13.01 rep ort co ncerning standards of care for physicians authored by a person who is not qualified to testify under Section 14.01(a) thus cannot constitute an adequate report. That the person is so qualified must appear f

rom the re port, with its acco mpanying curricul um vitae. See In re Highland Pines Nursing Home, supra ; Chisholm v. Maron , 63 S.W.3d 903, 907 (Tex.App.–Amarillo 2001, no pet.). Itfollows that a challenge to adequacy of a report under Section 13.01(l) may be based on a claim that it fails to demonstrate the person rendering the o pinion is qualifi ed to test ify, as well as o n other cl aims of i ts inade quacy.
Shenk testified at the December 5 hearing. Relators have submitted the reporter’s record from that hea ring wit h their p etition i n this co urt, and make reference in their petition to Shenk’s testimony. As noted, the determin ation of Shenk’squalifi cations to provide an expert report mustbe made on the basis of the contents of the report and curriculum vitae. Chisholm , 63 S.W.3d at 907; see Palacios , 46 S.W.3d at 878. A court reviewing the adequacyof a Section 13.01 report sho ul d look no further than the report itself, because7 Ray’s pleadings al lege d that “a neurorad iologis t of reaso nable an d ordina ry

prudence

. . . would have adequately diagnosed the surgical problem, and would not have caused the ‘ bleed’ in question.” They further alleged, dupli cating language from Shenk’s Section 13.0 1 report, that Wind isch fai led to me et the sta ndards of care in that h e “attempted to perform an ill adv ised and medical ly inapp ropriateintracranial embolization after learning that the primary blood supply was the right anterior cerebral artery when he should h ave with drawn an d notifie d the neu rosurgeon . . .” -7- all information relevant to the inquiry is contained within its four corners. Bowie Memorial Hosp. v. Wright , 79 S.W.3 d 48, 52 (Tex. 20 02); Palacios , 46 S.W.3d at 878. Accordingly,
we must make our

determination from the four corners of Shenk’s report and its attached curriculum vitae, and we have not taken the record of the D ecember 5 hearing or Shenk’s testimony

into con siderati on in ou r disposi tion of re lators’ p etition. Ray’s suit alleged that Windisch breached the a ccepted standard of care in his performa nce of the embolization. 7 Relator s’ manda mus petit ion contends the trial cou rt committed a clear

abuse of discretion in failing to dismiss because Shenk’s report so clearly failed to provide a basis on which the court cou ld find h e was qu alified to rende r an exp ert opinion on the issues of standard of care and breach th at it wasnot a go od faith effort to complywith Section 13.01. Th e peti tion separately makes the same contention with respect to Shenk’s qualifications to opine on causatio n. Because we concl ude that relators are correct in their contention regarding Shenk’s qualifications on the standard of care, we do not reach their se parate ar gument co ncerning his qua lificati ons on ca usation.
Shenk is board certified by the American Board of Radiology. He has training and experience in neuroradiology, as indicated by a 1977-78 fellowship in neuroradiology listed
on his cur riculum vitae. He joined the American Society of Neu roradiology in 1979. His-8-

curriculum vitae also reflects some experience in interventional neuroradio logy. In 1978- 80, as an assistant professor of radiology, he taught neuroradiol ogy cases for radiology residents at the Un iversity of Tenne ssee. In 1987-88, he served at the University of Illinois
as an assistant professor of neuroradiology and interventional pr oc edures. At oral argume nt, Ray emphasized Shenk’s board certification in radiology and his teachi n g experience in inter

ventiona l proced ures as d emonstrati ng his q ualifica tions as an expe rt. His curric ulum vitae does not indicate recent experience in interventional procedures. Si nce 1988, Shenk has served as medical director of several magneticresonance imaging (“MRI”) centers, his curriculum vitae indicating that at the time of thereport, he was serving as medica l directo r of threesuch fac ilities

. In a suit against a physician, the expert r eport required by Section 13.01 is a written report by an expert qualified to testify under t he requirements of Section 14.01(a), which mandates the witness: (1) be practicing medicin e at the t ime of hi s testimon y or at the time the claim arose; (2) have knowledge of the accepted standards of care for the diagnosis, care, or treatmentof the condition involved; and (3)be qualified on the basis of training or experience to offer a n expert opinion on thoseaccepted standard s of care. §14.01(a ). Section 14.01(c) provides a co urt with factors i t is to co nsider i n determi ning whe ther a witness’s training or exp erience qualifies the witness as an ex pert under the Act. The factors are whether, at the time the claim arose or when testimony is given, the witness (1) is board certified or has ot h er substantial training or experience in an area of medical practice relevan t to the cl aim; and (2) i s activel y practic ing medi cine ren dering me dical ca re services relevan t to the cl aim. Id. Courts have referred to the st andards disc ussed in-9-

Broders v. Heise , 924 S.W. 2d 148 (T ex. 1996 ), in applying the criteria specified in Sections 14.01(a) and (c). See Forrest , 77 S.W.3d 842 ; Ha g edorn v. Tisdale , 73 S.W.3d 341 (Tex.App.–Amarillo 2002, no pet.) ; Tomasi v. Liao , 63 S.W.3d 62 (Tex.App.–San Antonio 2001, no pet.). Broders teaches that one offering expert medical testimony must establish that the exp ert has ex pert i se regarding “the specific issue before the court which would qualify the expert to give an opin ion on that particular subject.” 924 S.W.2d at 153. The analysi s focuses

on “the v ery matter”on whic h the ex pert is to give an opinion

. Id

. In Tomasi , the court affirmed the dismissal of a claim after finding thepl aintiff’s expert, a psychi atrist, co uld not g ive an e xpert opinion on the standards of care for postoperative care after neurosurgery, despite his status as a diplomate of the Ameri can Boar

d of Psychiatry and Neurology. The cou rtnoted it was possible for experience similar to that described in the expert’s curriculum vitae to qualify a witness to te stify about the specific matters at issuebut, citing Broders , found the witness had not provided sufficiently detailed informati on to just ify the co nclusio n he wasqualifi ed to do so. 63 S. W.3d at 66

. Sim ilarl y, in Forrest , an orthopedic surgeon submitted a Section 13.01 report in a suit againsta neurosurgeon and two vascular surgeons over surgery to remove a lumbar disc protrusion, fuse vertebra and install a pedicle screw a nd rod system. The court noted that orthopedicsurgery deals with correction of disorders of the skeletal system, thatthe spine is a part of th at system, and that an ortho pedic sp ecialis t should be famil iar with procedures to correct p roblemsof the spine. Concluding that the expert’s specia lization in orthopedics mightthus be r

elevant to the cl aim invo lved in the case, the court nonethe less foun d there
was nothing in the re port and curricul um vitae to indicate his fam iliarity with the procedures-10-

used by the defendant p hysician s, and the plainti ffs had fa iled toestablish his qualifications to give a n expert

opinion with res pect to th ose proce dures. 77S.W.3d at 848.
This court has stated that, in reviewing the qualifications of one rendering a Section 13.01 report, the “issue is the specific subject matter and the ex pert’s fa miliarit y with it .” Hagedorn , 73 S.W.3d at 350, citing Broders , 924 S.W.2d at 153. The requirement that a Section 13.01 re port and curricul um vitae set forth the expert’s knowledge of the proce dure being questioned obtains even when the defenda nt ph ysician and the expert sh are certification in the same spec ialt y. See Richburg v. Wolf , 48 S.W.3d 375, 378 (Tex.App .–Eastla nd 2001, pet. den ied).
Broders recognized also that when the subj ec t under inquiry is substantially developed in more than one field, testimony can co me from a qualified expert in any one of them. 924S.W.2d at

154. Likewise, courts ha ve recogn ized tha t some sta ndards of care are applicable to multiple schoolsof practice, and some subjects of inquiry will be common to all fields of

practice

. See Blan v. Ali , 7 S.W.3d 741 (Tex.App.–Houston [14 th Dist.] 1999,
no pet.). In Silvas v. Ghiatas , 954 S.W.2d 50, 54 (Tex.App.–San Antonio 1 997, writ denied), a divided panel found an orthopedic surgeon qualified to tes tify again st a radiologistas to theissues t here involved, stating that the specialties are intertwined and itis common knowled ge that o rthopedi c surgeon s and rad iologis ts work closely together

.8 The report sta tes: “I have knowle dge of th e accepted standard of care for the

treatment of the condition in question.” “I am qualified on the basis of training or experience to offer an expert opinion regarding those accepted s tandards of medical care.” “I am activelypracticing medicine in rendering medical care services releva nt to t his case and in the me dical sp ecialty of Radio logy.”

9 The report further states: “I have been board certifie d in the medical specialty of Radiology

since 1978. I also have [an] extensive educational background in the field of Neuroradiology

and have been a member of the American Society of Neuroradiology since 1979.” The report also states, in its concluding paragraph: “The opinions that I have stated in this rep ort . . . ar

e based on my training and experience as a board certified Radiologist with an ext ensive background in Neuroradiology, and upon reaso nable me dical pr obabili ty.”
10 Generall y trackin g the lan guage of Section 14.01(c)( 2). -11- Exceptfor some conclusory statement s, 8 She nk’s report contains only brief statements

referencing his qualifica tion s. 9 Both Shenk and Windisch are radiol ogists. Nothing in Ray’s pleadings or in She nk’s report or curriculum vitae allows us to presume, thoug h, that the issues i nvolved in this case are s o common to radiol ogy that an y credentialed radiolo gist can testify to the appl icable s ta ndard of care. His fellowship in neuroradiologyand his teachin g appoin tments earlier in his career mig ht indicate famil iarity with the inte rvention al proce dure Windisch performed on Powell, but cannot reasonabl y be said to demon strate tha t he has k nowledg e of the a ccepted s tandard of care for the procedure. Moreover, despite the statement in Shenk’s report that he was then “actively practicing medicine in rendering medical care servicesrelevantto this case,” 10 nothing in the report connects Shenk’s positions since 1988 a s medical direct or of MR I facilit ies to expertise in the procedur e performe d by Wind isch. Ab sent from t he report and curriculum vitae is any explanation of the manner in which Shenk’s credentials carry with them familiar ity

with the “very mat ter” on whic h he prop oses to o pine. Broders , 924 S.W.2d at 153. The co nclusory references in the report to Shenk’s “extensive” background in11 Palacios makes clear

that an expert report by which the expert simply states that he or she knows the standard of care and conclude s it was not met is not su fficient to meet the requirem ents of Secti on 13.01

. See Palacios , 46 S.W.3d at 880. It likewise cannot be sufficientfor one rendering a sectio n 13.01 r eport simply to state in conclusory fashion that he is qualified by training or experie nce to testify as to a particul ar matter. Cf. Coastal Transport

Co., Inc. v. Crown Central Petroleum Corp. , 47 Tex. Sup. Ct. J. 559 (Tex. May, 14, 2004 ); Burrow v. Arce , 997 S.W. 2d 229, 2 35 (Tex. 1999). -12- neuroradiologydo not bridge the gap. 11 From the four corners of the report and curriculum vitae, we find no basis for a conclusion that Shen k’s training or experie nce qual ify him to offer an expert opinion on the standard of ca re for the performance of embolization of brain tumors, and we mustconclude that the report and curriculum vitae cannot reasonabl y be read to demon str ate that Shenk is so qualified. That being the case, the report is not an expert report within the requirements of Section 13.01. Chisholm , 63 S.W.3 d at 907; see Palacios , 46 S.W.3d at 879; In re Morris , 93 S.W.3 d at 390- 91; Whitworth v. Blumenthal , 59 S.W.3d 393, 398 -99 (Tex .App.–Da llas, 20 00, pet. d ism’d by agr.) (en banc).
In mostof the cases on which we have reli ed for guidance, e.g., Forrest , 77 S.W.3d at844 ; Tomasi , 63 S.W.3d at 63, appellate courts were reviewing d ecisions of trial co urts to dismiss cases, whi le we ha ve beforeus a cla im that th e trial court has a bused its discretion in fail ing to di smiss thecase. We consi der the requirement that the Section 13.01 report and curriculum vitae set forth the expert’s familia ritywith the particular procedure

at issue to be sufficiently well established, though, to require its application here. Accordingly, we c onclude that, under the standards set forth by the Supreme Court in Palacios , the trial court misapplied Section 13.01(l) to the re port submi tted by th e plaint iff in this cas e, and so

abused i ts discre tion. See Walker , 827 S.W.2d at 840. Finding also that relators have no adequate remedy by appeal, we will conditionally grant the petition-13-

for writ of mandamus. We are confident the trial court wi ll grant the relief to whic h relator s are entitled under Section 13.01(e) and this opinion. We will direct the Clerk to issue the writ only in the event the trial court does not do so.
Per Curiam