Boyles v. Cardiovascular

CYNTHIA BOYLES, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF JOHN BOYLES,DECEASED, AND ON BEHALF OF THE ESTATE OF JOHN BOYLES, DECEASED, Appellant, v. CORPUS CHRISTI CARDIOVASCULAR & IMAGING CENTER MANAGEMENT, Appellee.

CYNTHIA BOYLES, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF JOHN BOYLES, DECEASED,AND ON BEHALF OF THE ESTATE OF JOHN BOYLES, DECEASED, Appellant, v. CARDIOLOGY ASSOCIATES OF CORPUS CHRISTI AND SCOTT W. MCKINSTRY, M.D., Appellees.

CYNTHIA BOYLES, INDIVIDUALLY AS WRONGFUL DEATH BENEFICIARY OF JOHN BOYLES, DECEASED,AND ON BEHALF OF THE ESTATE OF JOHN BOYLES, DECEASED, Appellant, v. ABEER KALDAS, M.D., Appellee.

NUMBER 13-19-00095-CV

NUMBER 13-19-00103-CV

NUMBER 13-19-00104-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 30, 2020

On appeal from the 214th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Tijerina

Memorandum Opinion by Justice Tijerina

In appellate cause numbers 13-19-00095-CV, 13-19-00103-CV, and 13-19-00104-CV, appellant Cynthia Boyles (Cynthia), individually as wrongful death beneficiary of John Boyles (John), deceased, and on behalf of his estate, appeals the trial court's order granting three motions to dismiss a healthcare liability claim brought by appellees Corpus Christi Cardiovascular & Imaging Center Management (Cardiovascular); Cardiology Associates of Corpus Christi (CAC) and Scott W. McKinstry, M.D.; and Abeer Kaldas, M.D. By her first two issues in appellate cause numbers 13-19-00103-CV and 13-19-00104-CV, Cynthia asserts the trial court erred in granting Dr. McKinstry, CAC, and Dr. Kaldas's motions to dismiss because the expert reports she filed complied with § 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. By her third issue in appellate cause number 13-19-0095-CV, Cynthia argues that the trial court abused its discretion when it dismissed her healthcare liability claims against Cardiovascular because she asserted vicarious liability. We reverse and remand in all cause numbers.

I. BACKGROUND

On December 12, 2015, sixty-year-old Boyles was admitted to the emergency department at Christus Spohn Hospital (CSH) and complained of shortness of breath, chest pain, cough, and neck and leg swelling. His medical history included coronary heart disease, bypass surgery, a stroke in 2015 for which he was on anticoagulant therapy (Coumadin), and chronic obstructive pulmonary disease. On December 12, 2015, his labs showed his blood was too thin, and his international normalized ratio (INR) was greater than ten, which indicated he was "over anticoagulated." Boyles was given medication to reduce his fluid levels to treat his congestive heart failure, given medication to reverse his over anticoagulated condition, and had his Coumadin held until his labs showed that the anticoagulation levels in his blood were back in a therapeutic range. Boyles died the following day.

A. Initial Expert Report

On February 8, 2018, Cynthia filed her original petition, asserting wrongful death, survival,negligence, and gross negligence claims against appellees.¹ She alleged appellees were negligent in failing to diagnose and treat Boyles's respiratory symptoms thereby causing him to suffer cardiopulmonary arrest.

On July 11, 2018, Cynthia filed an expert report by Stephen A. Goldman, M.D., F.A.C.C., in accordance with § 74.351. See id. § 74.351(a) ("In a health care liability claim . . . a claimant shall . . . serve on [a defendant physician] one or more expert reports, with a curriculum vitae of each expert listed in the report."). Dr. Goldman opined, among other things, that Drs. McKinstry and Kaldas failed to recognize that Boyles was exhibiting symptoms of thrombosis and pulmonary emboli (PE) when they examined him and failed to administer an anticoagulant when his labs showed his INR was subtherapeutic. Dr. Goldman opined that their failure to do so resulted in Boyles developing PE and his subsequent death.

B. Objections

On August 14, 2018, Dr. Kaldas moved to dismiss the cause contending that the expert reports did not represent a "good faith" effort to comply with the statute. Id. § 74.351(l) ("A 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 . . . ."). Similarly, CAC, Cardiovascular, and Dr. McKinstry alleged that the expert report failed to adequately address how Dr. McKinstry's acts or omissions were the proximate cause of Boyles's death. Further, they alleged that the report failed to implicate any conduct by CAC and Cardiovascular.

After a hearing, the trial court granted Cardiovascular's motion to dismiss on November 6, 2018. The trial court also sustained Dr. McKinstry and CAC's objections and gave Cynthia thirty days to cure the deficiencies. See id. § 74.351(c) (allowing one thirty-day extension to cure deficiencies in an expert report). On November 20, 2018, the trial court sustained Dr. Kaldas's objections and granted Cynthia a thirty-day extension to cure the report.

C. Amended Report

Cynthia served Dr. Goldman's amended expert report on December 7, 2018. Dr. McKinstry and CAC moved to dismiss on the grounds that Cynthia failed to serve the amended report within thirty days. Alternatively, Dr. McKinstry and CAC argued that the amended report still failed to adequately address causation. Dr. Kaldas objected to the amended report on the same grounds.

On January 28, 2019, the trial court held a hearing on Dr. McKinstry, CAC, and Dr. Kaldas's motions to dismiss. Cynthia conceded that the amended report was not timely as to Dr. McKinstry and CAC; however, she reurged that the original report she filed on July 11, 2015 adequately addressed causation. Regarding Dr. Kaldas, Cynthia argued that the amended report adequately addressed causation. Thereafter, the trial court took the matter under advisement.

Three days later, the trial court sustained Drs. McKinstry and Kaldas, and CAC's objections and granted their respective motions to dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9) (authorizing an appeal of an interlocutory order denying a motion to dismiss for failure to file a medical expert report under the Texas Medical Liability Act).

II. STANDARD OF REVIEW AND APPLICABLE LAW

A plaintiff must serve one or more expert reports on a defendant healthcare provider within 120 days of the answer that fairly summarizes: (1) the applicable standard of care; (2) how the defendant physician failed to meet that standard; (3) and the causal relationship between the defendant's breach and the plaintiff's injury. Id. § 74.351(a), (r)(6); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). A report that satisfies these requirements, even if as to one theory only, entitles the plaintiff to proceed with a suit against the defendant physician. Potts, 392 S.W.3d at 630. "The expert report requirement is a threshold mechanism" for the trial court to conclude that the plaintiff's claims have merit. Id. at 631.

First, the report must inform the defendant of the specific conduct the plaintiff has called into question and must provide a basis for the trial court to conclude that the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The report need not cover every alleged liability theory, but it must sufficiently describe the defendant's alleged wrongful conduct. Potts, 392 S.W.3d at 631. If the trial court determines that a liability theory is supported, then the claim is not frivolous, and the plaintiff's suit may proceed. Id.

We review a trial court's decision with respect to chapter 74 expert reports for an abuse of discretion. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 398 (Tex. 2011); Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam); Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Palacios, 46 S.W.3d at 877. The trial court abuses its discretion if it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142(Tex. 2015) (per curiam). In determining whether the report manifests a good faith effort to comply with the statutory definition of an expert report, we are limited to the contents contained within the four corners of the report. Palacios, 46 S.W.3d at 878.

III. DR. MCKINSTRY AND CARDIOLOGY ASSOCIATES OF CORPUS CHRISTI

By her first issue in cause number 13-19-00103-CV, Cynthia asserts the trial court erred in granting Dr. McKinstry and CAC's motions to dismiss because the expert report explains how Dr. McKinstry breached the standard of care and how Dr. McKinstry's breach caused Boyles to suffer PE and die.² It is undisputed that the report set out the proper standard of care. Therefore, we will only address whether the report adequately summarized how Dr. McKinstry breached the standard of care and how his alleged breach caused the injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.

1. Breach of the Standard of Care

First, in his report, Dr. Goldman describes what occurred during Boyles's stay at CSH and what acts Dr. McKinstry performed or failed to perform. When Boyles was admitted to CSH, he was ordered to have a cardiology consultation as well as have his labs repeated, including his INR. He was ordered to restart his Coumadin when his INR was back to a therapeutic range. Boyles was placed on a sequential compression device (SCD).³ On December 12, 2015, an echocardiogram revealed an "enlargement of all [four] cardiac chambers, diminished right ventricular contractility and left ventricular contractility and severe tricuspid insufficiency."

Dr. Goldman provided the following in his expert report:

John Boyles had multiple risk factors that predisposed him to the development of blood...