NO. 07-06-0232-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B SEPTEMBER 15, 2006

______________________________ GUY A. WE LLS, M.D., Appellant

v. MARY ASH MORE, ind ividual ly and a s survivi ng spous e of LAWRE NCE ASH MORE, deceased, an d FRANC ES MCFAR LAND, Appellees

_________________________________ FROM THE 72 nd DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005-532,780; HON. RUBEN REYES, PRES IDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. This appeal involves a health car e l iability claim prosecuted by Mary Ashmore, individually

and as s urviving spouse of L awr ence Ashmore, deceased, and Frances McFarland (collec

tively re ferred toas Ashmore). Guy A. Wells, M.D., (Wells) appeals from
an order denying his objections to the medical expert report of Ashmore. He contends that the trial court abused its discretion in denying his objectio ns becau se the rep ort “fail[ ed] to setforth the elementof ca usation in a non-conclusory manner as required by American2

Transitional

Care Centers v. Palacios , and its progeny.” We agree and reve rse the or der. Background Lawrence Ashmore was diagnosed with a heart attack in Artesia, New Mexico, a nd transferred to Covenant Hospital in Lubbock, on September 5, 2003. At the time, he was under the care of Wells. On the night of the 5 th , Lawrence developed seizures and irregular heart rhythms and died the next day. His surviving wife and daughter then sued Wells for failing to provi de adequ ate care to him. Disputearose below regarding the sufficiency of the ex pert report tendered by Ashmore per §74.351 of the Texas Civil Practiceand Reme dies Cod e. Accord ing to Wells, itfailed to adequa tely exp lain, amo ng other things, how the alleged deficiencies i n his performance caused Lawrence’s death. Because of that perceived defect, Wells moved to dismiss the case with prejudice. The trial court de nied the motion, and the ap peal ensued. Applicable Law One suin g for medi cal malp ractice mu st: [n]ot later than the 120 th day after the dat e the original petition was filed, serve on each party . . . one or more expert reports, with a curriculum vitae of each expert listed in the report for each physi cian or health care provider against whom a li ability claim isasserted

. . . . T EX
. C IV
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. art. §74.351(a) (Vernon Supp. 2006). Should the claimantnot do so

and upo n motion, the tri al court must enter an order 1) awarding the movantreasonable attorney’s fees and costs of court incurred and 2) “dismiss[ing] the claim with respect to the physician o r health care prov ider, wi th prejudi ce to the refiling of the claim.” Id. §74.351 (b)(1) & (2 ). On the other hand, if the report is filed yet challenged,3

the challen ge must be

sustaine d and thecause di smissed “ . . . if it appears to the cou rt, after hearing, that the report do es not rep resent an objectiv e good fa ith effort to compl y with the definiti on of an expert re port . . . . ” Id. §74.351 (l); see Jernigan v. Langl ey, 111 S.W.3d 153, 156 (Tex. 2003) (stating that the cause must be dismissed if the trial court determines that the repo rt does not r epresent a good faith effort to comply with the definition of an expert report). Moreover, the term “expert report” has been defined by statute to

mean “a written report byan expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the m anner in whic h the care rendered . . . failed to meet the standards, and the causal relationship between that fail ure and the i njury, har m or damag es claim ed.” Id. §74.351 (r)(6). To constitute a “fair summary” of the expert’s opinions, the document must contain
more than conclusions. Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (T ex. 2002 ); American Transiti

onal Car e Ctrs. of Tex., Inc . v. Pala cios, 46 S.W.3d 873 , 879 (Tex. 2001). Instead, th e expert

must prov ide enou gh data to not onl y inform t he defen dant of t h e specificconduct called into question but also provide the trial court means to preliminarily
assess whether the claim ha s factual basis. Bowie Memoria l Hospit al v. Wrig ht, 79 S.W.3d at52; Chishol

m v. Maro n, 63 S.W.3d 903, 906 (Tex. App.–Amarillo 2001, no pet.). F or instance, i n Bowie , the expert “simply opine[d] that [the patient] might have had ‘ the possibi lity

of a better ou tcome’ wi thout explaining how Bowie’s conduct caused injury .

. . .” Bowie Memorial Hospital v. Wright, 79 S.W.3d at 53 (emphasis added). Given the missing explan ation, th e report “lack[ed] information linking the expert’sconclus ion . . . to Bowie’s alleged breach . . .,” according to the Supr eme Court

. Id. So too did the missing information render

the document conclusory, the court continued, and something short of4

“a good faith effort to meet the Act’s requi rements.” Id. at 54. Thus, it determined that dismissa l of the s uit was m andated. Id. So, what we learn fro m Palacios, Bowie, and like opinions is that to be sufficient an export report mu st inclu de more th an the me re stateme nt t hat a purported breach of an applicable standard of care caused a particular outcome. Rather, information explaining the link between the standard of care, its breach, and the ensuing injury must be contained within its four corners. So, when addressing the topic of causation, an expert is required to provide some factual in form ation describing how and why the breach resulted in the injury. And, wh ile this

explan ation ne ed not eq uate a marshaling of evidence, Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex. App.–Houston [1 stDist.] 20 01, no pe t.), it mus t be more than conc lusions

. Application of the Law The expert report at bar was provided by Dr. Howard I. Kurz. In it, he stated the standards of care applicable in circum stances co nfronting Wells. S o too did the exp ert specify the manner in which Wells allegedl y breached those standard s. Yet, w hen it ca me to connecting the purported defaults to the death of Lawrence, he opined: Mr. Ashmore would within a reasonable de gree of medical certaint y survivedha d the above mentioned measures been performed upon arrival. However, it is still possible he would have survived had Dr. Wells responded and taken appropri ate measu res when first pag ed by nur sing staf f. * * *
Itis my opinion that Dr. Wells breached the appl icable s tandard of care in his treatment of Mr. Ashmore . . . and these acts of or omissi on s proximately caused Mr . Ashmore ’s death

. . . .5

Missing from these opinions is information explaining the link between the alle ged defa ults committed by Wells and Mr. Ashmore’s death. Simply put, how or why they resulted in his death went unmentioned. Similarly unmentioned by K urz is the cond it ion of which Lawrence ultimately died. This is of import becaus e elsewhe re in his report th e expert uttered that 1) increased doses of levophed and dop a m ine wereadminis tered to M r. Ashmore “which lead to peripheral vasoconstriction and hypoperf usion as manifested my [sic] mental confusion and kid ney shutd own” and 2) admin istering “large d oses of p ressors caus[ed] tissue hypoperfusion with kidney sh utdown.” Had the expert rel ated that death resulted from vasoconstriction, hypoperfusion, mental confusion, or kidney shutdown, then itmay be arguable that the report ill ustrated the requisite nexus between the purported conductof Wells

and the death of his pati ent. But, without specifyi ng wheth er Ashmor e died of heart failure, kidney failure, mental confusion, a combinatio n of one o r more of those conditions or of

s omething else, Kurz provided us with no factual data tying the administ ra tion of those drugs to Lawrence’s death. Simply put, w ithout knowing wh a t Lawrence ultimately died of we are left to only guess at the relationship between supposed bad acts on the pa rt of the d octor and the deat h. In sum, the allegations made by Kurz regarding causation were mere conclusions because they did not explain how the purported defaults caused Lawrence’s death; the expert merely co ncluded that they did. See Nelson v. Ryburn , No. 07-05-0166-CV, 2006 Tex. App. L EXIS 3081 at*7 (Tex. App.–Amarillo April 18, 2006, no pet.). So, the report fell short of consti tuting a good fai th effort to provide a fair summary between the alleged misconductof Wells and its relationship to Mr. Ashmore’s death, an d the trial court had no discreti on but tosustain Wells’ o bjections

.1 Sta tute provi des that if “an expe rt repor

t has no t been served withi n the per iod specifi ed . . . because elem ents of the re port a re fou nd d eficien t, the cou rtmay grant one 30-dayextens ion t o the cl aimant i n order to cure the deficiency .” T EX
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. C ODE A NN .§74. 351(c) (Vernon Supp. 2006) . Omit ted f rom this language is t hat f

ound in it s predece ssor and requi ri ng the c lai mant to h ave act ed wit hout i ntent or consci ous indif ference befo re lea ve to am end cou ld be gran ted. See T EX
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. S T AT
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. 4590i, §13.01( g) (rep ealed eff

ecti ve September1, 20 03 ) (sta ting tha t lea ve to am en d co uld be gra nte d if the de fau lt was not int enti onal or t he resul t of consci ous ind if

fer ence but rat her t he resul t of acci dent or mistak e). Furt hermore, Ash mo re soli cit ed, her e and bel ow, l eave to cure anydefi ciencyfound i n the report t end ered. Given t he requ est, we dee m it ap prop riate to re ma nd th e cause so the tr ial court may decide whether t o exerci se the discr etion ves ted in it by §74 .351 (c). 6 Accordingly, we reverse the order of the trial court den ying Wel ls’ obje ctions to the report and remand the cause for further proceedings. 1

Brian Quinn Chief Justice