NUMBER 13-07-00657-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

EARL ALFORD, JR. AND RITA ALFORD LEWIS,

AS ADMINISTRATOR OF THE ESTATE OF

EARL ALFORD, Appellants,

v.

ALBERTO BELACAZAR, M.D., PAUL FAREK, M.D.,

AND CHRISTUS SPOHN HEALTH SYSTEM

CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL

CORPUS CHRISTI, Appellees.

 

On appeal from the 347th District Court of Nueces County, Texas.

 

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Chief Justice Valdez

Appellants, Earl Aflord, Jr. and Rita Alford Lewis, filed health care liability

claims against Alberto Belalcazar, M.D., Paul Farek, M.D., and Christus Spohn Health

System Corporation doing business as Christus Spohn Hospital Corpus Christi (“Christus

Spohn”) for the death of Earl Alford. Appellants filed an expert medical report by Ralph
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Patman, M.D. as to Christus Spohn’s liability. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a) (Vernon Supp. 2007). Christus Spohn moved to dismiss the claims on the basis

that Patman’s report was deficient because it did not specify how Christus Spohn’s action

caused Alford’s death. See id. § 74.351(r)(6). The court found Patman’s report deficient

and dismissed appellants’ suit. By a single issue, appellants contend that the trial court

abused its discretion by dismissing their suit. We affirm.

I. BACKGROUND

On November 11, 2003, Earl Alford was admitted to Christus Spohn HospitalShoreline by Belalcazar for the surgical removal of a colon tumor. During the procedure,

Belalcazar injured Alford’s colic artery, portal vein, and common duct. These injuries

caused bleeding, which Belacazar could not stop. Belalcazar brought in Farek for surgical

assistance in controlling the bleeding. Neither physician could stop the bleeding, and

Alford died shortly after surgery. 

On January 3, 2006, Lewis and Washington filed suit against Belalcazar, Farek, and

Christus Spohn. Appellees alleged that Belalcazar and Farek were negligent in their

treatment of Alford’s condition. They also alleged that Belalcazar left the operating room

for nearly one hour and thirty minutes during the procedure, which allowed Alford’s

condition to deteriorate. Appellees alleged that Christus Spohn operating room nurses

were negligent by not asking Belalcazar to return to the operating-room after he left, and

by not notifying their supervisors of Belalcazar’s absence. Appellees also alleged that the

nurses did not timely provide Alford with auto-blood transfusions. As is required by chapter

74 of the civil practice and remedies code, appellees submitted expert medical reports by

Joanne Gonjora, R.N. and Patman. See id. § 74.351(a) (Vernon Supp. 2007). 

On June 2, 2006, Christus Spohn filed its objections to the reports of Gonjora and
 On October 15, 2007, the trial court severed appellants’ claims against Christus Spohn from the 1

claims against the other defendants.

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Patman, alleging that the reports failed to establish a causal link between Christus Spohn’s

actions and Alford’s demise. The trial court, on January 9, 2007, signed an order finding

that the reports were deficient because they did not establish causation. The trial court,

however, granted appellees a thirty-day extension to file a sufficient report. See id. §

74.351(c). Appellees filed an addendum to Patman’s report, but they did not attempt to

rehabilitate Gonjora’s report. Patman’s addendum detailed the chronology of events that

occurred during Alford’s surgery and opined that the nurses’ negligence was the “proximate

cause” of Alford’s death.

Christus Spohn objected to Patman’s new report and urged dismissal. A hearing

was held on August 2, 2007, and on that date, the trial court dismissed appellants’ claims.1

This appeal ensued. See id. § 51.014(a)(10) (Vernon Supp. 2007).

II. STANDARD OF REVIEW

A plaintiff asserting a health care liability claim must submit an expert report to each

health care provider and defendant physician. Id. § 74.351(a). A compliant expert report

is defined as a written report providing a fair summary of the expert’s opinions regarding

the standard of care, the manner in which the care rendered by the health care provider

failed to meet the standard of care, and the causal relationship between that failure and

the harm claimed. Id. § 74.351(r)(6). The trial court shall grant a motion challenging the

adequacy of an expert report only if it appears to the court, after hearing, that the report

does not represent an objective good faith effort to comply with the definition of an expert

report in subsection (r)(6). Id. § 74.351(l). 

We review a trial court's decision on a motion to dismiss under section 74.351 of the
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civil practice and remedies code for abuse of discretion. Estate of Regis ex rel.

McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.–Houston [14th

Dist.] 2006, no pet.). To constitute a good faith effort, an expert’s medical liability report

must establish the expert’s qualifications, the applicable standard of care, how that

standard was breached by the particular actions of the defendant, and how the breach

caused the damages claimed by the plaintiff. Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001). Although an expert report need not marshal

and present all of the plaintiff's proof, a report that omits any of the elements required by

the statute does not constitute a good faith effort. Id.

III. ADEQUACY OF EXPERT REPORT

Before the trial court, Christus Spohn argued that Patman’s report was deficient

because it did not allege a causal relationship as required by the health care liability

statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Appellants contend that

the report established that Christus Spohn’s nurses committed two omissions that caused

Alford’s demise. First, they contend that the nurses did not properly record Alford’s blood

loss and institute autotransfusion procedures. Appellants point us to the following

passage:

Therefore, it is my medical opinion based upon reasonable medical

probability, in the instance of Mr. Alford, who was dying of hemorrhagic

shock, failure to accurately record the data available, institute the mechanics

of autotransfusion, harvest over a liter of cell saver blood and subsequent

failure to administer the autologous blood and/or failure to document the

reason why such blood was not administered breached the applicable

standard of care in the management and care of Mr. Alford and these acts

of omission were proximate causes of Mr. Alford’s death.

Appellants contend that this passage represents a good-faith effort to comply the statute’s

causation element. 
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At the dismissal hearing, Christus Spohn argued that Patman did not draw a causallink between recording Alford’s blood loss and his death. Additionally, it pointed-out that

Patman’s report focused solely on the fact that a mechanical autotransfussion system was

not employed, but it ignored the fact that Alford was receiving traditional blood transfusions

during critical moments. Christus Spohn argued that Patman’s report was conclusory as

to causation because it ignored a critical fact—that a traditional transfusion was in

process—to conclude that not using an autotransfusion system also caused Alford’s death.

We agree. 

These two statements are conclusory, since they are not linked to the facts and do

not explain precisely how recording Alford’s blood loss or using an autotransfusion system

instead of a traditional transfusion system led to Alford’s death. See Nelson v. Ryburn, 223

S.W.3d 453, 456 (Tex. App.–Amarillo 2006, no pet.) (holding that a report stating that a

physician’s failure to perform a proper pre-operative medical evaluation of patient

proximately caused patient's death during surgery and anesthesia was conclusory because

its conclusions were not linked to the facts of the case.).

Appellants’ second allegation of negligence against Christus Spohn nurses is that

they failed to timely summon Belalcazar or notify a supervisor of his absence. They

contend that Patman’s report sufficiently explains how the delay in addressing Alford’s

bleeding cause his death. On the other hand, Christus Spohn points to a different section

of the report, in which Patman states that, “[h]ad Dr. Belalcazar returned in a timely

fashion, one hour and 27 minutes of continued uncontrolled blood loss would have been

avoided, and possibly the irretrievable shocklike [sic] syndrome as well as the attendant

comorbidities that ensued” (emphasis added). It contends that the later statement raises

merely the possibility of causation and is insufficient and that the former statement is
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conclusory. Indeed, at the August 2 hearing, the trial court noted regarding to the former

statement, “How? That’s exactly the little notation I had here when I read this report is

how.” 

The trial court’s question remains unanswered on appeal because appellants do not

explain “how” the cited passages are not conclusory. We are, therefore, left with a report

that alleges the “possibility” of causation. A description of only a possibility of causation,

however, does not constitute a good-faith effort to comply with the statute. See Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (holding that expert report opining

about “the possibility of a better outcome” was insufficient to meet expert report statute);

see also Estate of Allen v. Polly Ryon Hosp. Auth., No. 01-04-00151-CV, 2005 Tex. App.

LEXIS 1691, at *3, 5 (Tex. App.–Houston [1st Dist.] Mar. 3, 2005, no pet.) (mem. op.)

(finding that expert report discussing what was “more likely” or “could have contributed”

constituted mere possibilities and thus were not statements of causation). 

Thus, we hold that the trial court did not abuse its discretion in dismissing the

appellants’ suit. Their sole issue is overruled.

IV. CONCLUSION

The trial court’s dismissal order is affirmed.

_______________________

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion delivered and

filed this the 21 day of August, 2008. st