Opinion · Texas Court of Appeals, 4th District (San Antonio)
Olveda v. Sepulveda
Olveda v. Sepulveda, 141 S.W.3d 679 (Texas Court of Appeals, 4th District (San Antonio) 2004)
- Type
- Opinion
- Court
- Texas Court of Appeals, 4th District (San Antonio)
- Jurisdiction
- State
- Date
- 2004-06-24
- Topic
- general
How later courts describe this case
- concluding docket control order setting deadline for designating experts and providing retained experts’ reports did not include expert reports under Texas Medical and Insurance Improvement Act
- stating "[i]t is not enough, however, for [the purported expert] to state that all physicians should be able to diagnose" a particular illness
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UpLaw has not yet analyzed Olveda v. Sepulveda. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 56 opinions
- Distinguished
- 1 times
OLVEDA v. SEPULVEDA,141 S.W.3d 679(Tex.App.-San Antonio [4th Dist.] 2004)
Gilbert H. OLVEDA, Jr., and Brendalee Olveda-North, Individually and As
Representatives of the Estate of Freida Hernandez, Deceased, Appellants,
v. Rene A. SEPULVEDA, M.D., and Baptist Health System d/b/a St. Luke's
Hospital and St. Luke's Baptist Hospital, an Assumed Name, Appellees.
No. 04-03-00319-CV.
Court of Appeals of Texas, San Antonio.
May 26, 2004.
Rehearing Overruled June 24, 2004.
Case Number: 04-03-00319-CV 05/11/2006 Case stored in record room 05/09/2006 Notice sent to Court of Appeals 05/09/2006 Record returned to Court of Appeals 05/05/2006 Motion for Rehearing — Disposed Denied with Justice not sitting. 03/21/2006 Case forwarded to Court 03/20/2006 Motion for Rehearing — Filed 03/03/2006 Petition for Review disposed Case denied with opinion 04/14/2005 Response to Petition for Review filed 04/12/2005 Additional citations received. 02/07/2005 Reply brief 01/21/2005 Brief filed. 12/09/2004 Motion for Extension of Time disposed. Granted 12/08/2004 Motion for extension of time to file brief. 12/03/2004 Brief filed. 11/17/2004 Record Received (See Remarks) 11/03/2004 Record Requested in Petition for Review 11/03/2004 Brief on the Merits Requested 10/20/2004 Reply filed 10/05/2004 Response to Petition for Review filed 09/07/2004 Supreme Court of Texas Requested Response; mailbox rule does not apply 08/17/2004 Case forwarded to Court 08/16/2004 Response to Petition for Review waived 08/09/2004 Petition for Review filed 08/09/2004 Appendix FiledPage 680
Edward C. Mainz, Jr., Robert R. Biechlin, Jr., Thornton, Summers, Biechlin, Dunham Brown, L.C., Richard N. Francis, Jr., Laura A. Cavaretta, Plunkett Gibson, Inc., San Antonio, for appellees.
Sitting: ALMA L. LOPEZ, Chief Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
OPINION
BACKGROUND
On November 20, 2001, Frieda Hernandez went to the Hospital. Hernandez was approximately thirty weeks into her pregnancy and had been experiencing severe abdominal pain off and on for four days. Peter V. Kuhl, M.D., Hernandez's obstetrician, consulted with Sepulveda, a urologist,Page 681regarding the performance of a surgical procedure. Kuhl, Sepulveda, and Ricardo A. Ramirez, M.D., an anesthesiologist, were present during the procedure. During the course of the procedure, the fetus died, and doctors performed a cesarean section to deliver the fetus. Three days later, Hernandez died due to multiple organ failure caused by HELLP syndrome.2
The Olvedas, Hernandez's adult children, bought suit against Kuhl, Sepulveda, Ramirez, and the Hospital for negligence relating to the improper care and monitoring of Hernandez's fetus and the improper care and treatment of Hernandez. Sepulveda and the Hospital moved to dismiss, arguing that the expert reports filed by the Olvedas do not comply with the Act. The trial court granted the motions and severed the claims against Sepulveda and the Hospital from the remainder of the suit. The Olvedas timely appealed.
The Olvedas have filed a motion to vacate the portion of the judgment and dismiss the portion of the appeal relating to the Hospital. We grant the Olvedas' motion. Accordingly, the only issue before us is the trial court's dismissal of the Olvedas' claims against Sepulveda.
STANDARD OF REVIEW
We review a trial court's decision to dismiss a claim under section 13.01(e) of the Act under an abuse of discretion standard.Am. Transitional Care Ctrs., Inc. v. Palacios,46 S.W.3d 873,878(Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, without reference to guiding rules or principles.Bowie Mem'l Hosp. v.Wright,79 S.W.3d 48,52(Tex. 2002). When reviewing matters committed to a trial court's sound discretion, a court of appeals may not substitute its own judgment for that of the trial court's.Id.
EXPERT REPORTS UNDER 4590I
Article 4590i of the Act requires a medical malpractice plaintiff to furnish each defendant physician or health care provider with one or more expert reports no later than the 180th day after the lawsuit is filed. Tex.Rev.Civ. Stat. Ann. art.4590i, § 13.01(d) (Vernon Supp. 2003). The written report must provide a fair summary of the expert's opinions regarding the applicable standard of care, the breach of that standard by the physician or health care provider, and the causal relationship between the breach and the injury.See id.at § 13.01(r)(6). If the plaintiff fails to furnish a suitable expert report to a medical malpractice defendant within the 180-day time period, upon the filing of a motion challenging the existence or adequacy of such a report, the statute directs the trial court to enter an order dismissing the lawsuit.See id.at § 13.01(e)(3).
Additionally, the party offering the expert's testimony bears the burden of proving that the witness is qualified under Texas Rule of Evidence 702.Broders v. Heise,924 S.W.2d 148,151(Tex. 1996). The rule requires that experts be qualified "by knowledge, skill, experience, training, or education," and that their testimony "assist the trier of fact" regarding the specific issue before the court.Id.at 153;see alsoTex.R. Evid. 702.
Here, the Olvedas offered the expert opinion of Maya S. Suresh, M.D., an obstetric anesthesiologist. According to Suresh, Hernandez received substandard medical care from Sepulveda, a urologist. Specifically, Suresh states:Page 682
[T]here was no evidence of documentation of history and physical examination, assessment[,] or plan of action by Dr. Sepulveda. A reasonable expectation of any physician/surgeon who is planning a nonobstetric operative procedure on a parturient in the third trimester is to evaluate, assess[,] and document a history [and] physical examination [and to] rationalize the plan of action. Further, it is the responsibility of all physicians involved in the intraoperative care of the parturient to ensure both maternal and fetal well [-]being during the entire [intraoperative] procedure.
. . . Dr. Sepulveda's lack of documentation, failure to obtain laboratory work [,] i.e., CBC (especially with the history of blood in the urine), and ignoring fetal well[-]being . . . demonstrates substandard medical care. Failure to make the initial critical diagnosis of preeclampsia and HELLP impacted all subsequent management. Further failure on the part of Dr. Kuhl, Dr. Ramirez, and Dr. Sepulveda to appropriately monitor the uterine contractions and the FHR resulted in adverse fetal outcome. . . .
. . . .
In summary, it is my opinion that the physicians involved in Ms. Frieda Hernandez's care on November 21st, i.e., Dr. Kuhl, Dr. Ramirez, and Dr. Sepulveda, failed to follow the standard of care in the management of both Ms. Frieda Hernandez and the baby. . . .
Had the obstetrician, anesthesiologist, and urologist followed the standard of care — i.e., obtained appropriate laboratory tests [and] evaluated and assessed the patient in a timely manner, it would have resulted in making the correct diagnosis of preeclampsia/HELLP syndrome[, and] the plan of action and management would have been the standard of care that is routinely rendered to a preeclampsia patient, which would have resulted in a positive outcome and survival of both mother and baby.
The Olvedas argue that this report is sufficient. According to the Olvedas, the report demonstrates that Suresh is amply qualified to testify because the urologist in this case deviated from a standard of care common to all physicians. It is not enough, however, for Suresh to state that all physicians should be able to diagnose preeclampsia. UnderBroders,"[w]hat is required is that [the Olvedas] establish that [Suresh] has `knowledge, skill, experience, training, or education' regarding the [standard of care applicable to urologists] which would qualify [her] to give an opinion on that particular subject."Broders,924 S.W.2d at 153.
The Olvedas contend that Suresh is qualified under the authority ofBlan v. Ali,7 S.W.3d 741(Tex.App.-Houston [14th Dist.] 1999, no pet.). In that case, the court held that a neurologist was qualified to testify regarding the standard of care applicable to any physician who undertakes to treat and care for a patient suffering from a stroke along with the neurological complications of lupus cerebrids.Id.at 746-47. The court noted, "[A] medical witness who is not of the same school of practice may be qualified to testify if he or she has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those that confronted the defendant charged with malpractice."Id.at 745. "[I]f a subject of inquiry is substantially developed in more than one field, a qualified expert inanyof those fields may testify."Id.(emphasis in original).
Here, however, Suresh never states that the diagnosis of preeclampsia/HELLP syndrome is substantially developed in the field of urology or that she has practicalPage 683knowledge of how urologists treat patients with symptoms of both a urological condition and preeclampsia/HELLP syndrome. She states only that she is familiar with practice guidelines in anesthesiology and the standard of care in obstetrics.
Suresh may be qualified to opine that the standard of care requires a urologist to diagnose preeclampsia; however, those qualifications must appear in her report.Hansen v. Starr,123 S.W.3d 13,20(Tex.App.-Dallas 2003, pet. denied) (noting expert must show qualifications in report). Here, Suresh's report does not refer to any knowledge, skill, experience, training, or education regarding the standard of care applicable to urologists. Accordingly, we hold that the trial court did not abuse its discretion in concluding that Suresh is not qualified to testify about Sepulveda's actions.See Richburg v. Wolf,48 S.W.3d 375,377-78(Tex.App.-Eastland 2001, pet. denied) (noting report sets forth standard of care applicable to all physicians but fails to address qualifications of expert to address standard of care applicable to breast reconstruction surgery by setting forth expertise in that field). We overrule this issue on appeal.
The Olvedas also argue that Suresh is qualified to render an opinion on Sepulveda's alleged failure to properly monitor the fetus during surgery. Suresh's opinion that Sepulveda was negligent, however, is based on Sepulveda's failure to diagnose preeclampsia, not his failure to properly monitor the fetus. Suresh never alleges that the fetus would have survived if properly monitored during surgeryhad preeclampsia remainedundiagnosed.Accordingly, even if Suresh is qualified to render an opinion that Sepulveda failed to properly monitor the fetus during surgery, such opinion fails to establish "the causal relationship between [the breach] and the injury."SeeTex.Rev.Civ. Stat. Ann. art.4590i, § 13.01(r)(6) (Vernon Supp. 2003). We overrule this issue on appeal.
NURSING MALPRACTICE CLAIM
The Olvedas next argue that the trial court erred in dismissing their nursing malpractice claim because a nurse's expert report coupled with a physician's expert report constitutes a good-faith effort to fairly summarize the claim. This claim, however, was part of the suit against the Hospital. Because we are granting the Olvedas' motion to dismiss the portion of the appeal relating to the Hospital, we need not address this issue.
PREMATURE RULING
In their final issue, the Olvedas contend that the trial court prematurely ruled on the sufficiency of the expert reports because the deadline for filing the reports in the parties' docket control order had not expired.
Expert reports must be filed within 180 days from the date a health care liability claim is filed. Tex.Rev.Civ. Stat. Ann. art.4590i, § 13.01(d) (Vernon Supp. 2003). The parties may agree to extend the 180-day deadline, but such an agreement must be signed by the parties and filed with the court.Id.at § 13.01(h).
Here, the Olvedas filed their claim June 13, 2002. They filed expert reports in September. The deadline for filing the expert reports was December 10, 2002. On January 8, 2003, the trial court entered a docket control order, stating, "Plaintiffs shall designate any and all expert witnesses and provide curriculum vitaes and reports of retained experts on or before June 11, 2003."
InFinley v. Steenkamp,19 S.W.3d 533,539-40(Tex.App.-Fort Worth 2000, no pet.), the court considered an argument similar to the one made by the Olvedas.Page 684In that case, Finley argued that the 180-day deadline was replaced by the trial court's scheduling order.Id.at 539. The court rejected this argument for numerous reasons.Id.First, the court noted that the scheduling order did not issue until a month after the deadline had passed for filing the expert report.Id.Second, the scheduling order did not designate a later date as a deadline to file expert reports but specified a date on which Finley was required to provide the name of expert witnesses expected to testify at trial.Id.at 539-40;see also Tesch v.Stroud,28 S.W.3d 782,789(Tex.App.-Corpus Christi 2000, pet. denied) (rejecting argument for extending 180-day deadline based on proposed scheduling order that was not signed by appellee's counsel and only addressed discovery deadlines for designating experts).
Similarly, the scheduling order in this case issued approximately one month after the 180-day deadline passed. Furthermore, the order mentions expert witnesses and "retained" experts, indicating testifying experts. Additionally, the order states that the agreement regarding the deadlines was "to facilitate orderly and efficient discovery and preparation for trial." For these reasons, we do not believe that this order was meant to include expert reports under the Act. Accordingly, we hold that the trial court did not act prematurely in dismissing the Olvedas' claims.
CONCLUSION
We dismiss the portion of the appeal relating to the Hospital and vacate the portion of the trial court's judgment dismissing the claim against the Hospital. We affirm the remainder of the trial court's judgment.
The majority contends that because Suresh "never alleges that the fetus would have survived if properly monitored during surgeryhad preeclampsia remained undiagnosed," Suresh's opinion "fails to establish `the causal relationship between [the breach] and the injury.'" However, Suresh states in her report that the "standard of care would have been to monitor uterine contractions and have continuous reading of [the fetal heart rate] by a qualified individual during the perianesthetic and preoperative period and to have arrangements for a stat cesarean section if the need arose." Thus, Suresh opines on causation because if the standard of care had been met, and the fetal heart rate had been monitored, a stat cesarean section could have been performed to save thePage 685fetus if the need arose. The failure to monitor the heart rate led to the failure to perform the stat cesarean section, thereby preventing the fetus from surviving.
Accordingly, I believe Suresh's report adequately summarizes the breach of the applicable standard of care with regard to the monitoring of the fetus and sets forth the causal relationship between the breach and the inability of the fetus to survive. Because the majority holds to the contrary, I respectfully dissent from this portion of the majority's opinion.
- The Honorable Phylis J. Speedlin presided over the hearing on the motion to dismiss. However, the order granting Sepulveda's motion to dismiss was signed by the Honorable John J. Specia, Jr. ↩
- HELLP syndrome is a variant of preeclaimpsia characterized by hemolysis (the breaking down of red blood cells), elevated liver enzymes, and a low platelet count. ↩