14th COA--Kapoor v. Klovenski; expert report failed to state qualifications and causation in a failure to diagnose cancer case

The Estate of Margaret Klovenski sued Dr. Kapoor and alleged that he failed to diagnose her cancer.  Plaintiffs filed the expert report of Dr. Julie Graves Moy.   Dr. Kapoor objected and moved to dismiss.  He alleged that Dr. Moy (1) was unqualified; (2) offered only conclusory opinions about causation; and (3) failed to state the standard of care or Dr. Kapoor's breach.

The COA first discussed qualifications and referred to the Broders case.  The COA held, "Where a physician's failure to diagnose is alleged to have harmed a pt, an expert testifying as to causation must be qualified to opine about the effect of a timely diagnosis and treatment on the outcome."  Dr. Moy did not state any experience or credentials to demonstrate that she was qualified to testify about what treatments would have been available with an earlier diagnosis or whether earlier administration of potential treatments would have resulted in a more favorable outcome.  As a result, the COA held that the trial court abused its discretion in overruling Dr. Kapoor's objections. 

The COA also considered Dr. Kapoor's objections to Dr. Moy's statements on the causal link between his failure to diagnose cancer and Ms. Klovenski's death.  The COA noted that in opining on causation, the expert must offer more that a general opinion that timely diagnosis would have led to a better outcome.  In this type of case, the expert must explain how the complained-of harm would not have happened if the injury had been diagnosed in a timely fashion.  Because Dr. Moy failed to connect her conclusion to any specific facts regarding whether this cancer was treatable or how earlier treatment would have changed her prognosis, her report was insufficient. 

The COA remanded the case to the trial court to consider whether to grant Plaintiff a 30-day extension to cure the report.

See the opinion at Kapoor v. Klovenski.

This opinion was released on September 23, 2010.

1st COA--Mettauer v. Noble et al., objections to expert report

In this wrongful death case, Dr. Mettauer objected to the timely-filed expert report of Dr. Joseph Carey.  Dr. Mettauer claimed that Dr. Carey was not a qualified expert.  He claimed that because Dr. Carey did not perform thoracoscopic cardiac ablation, the procedure at issue in the case, he is not qualified as an expert. Dr. Mettauer also claimed that the Dr. Carey based his conclusions on assumptions or mistakes and did not provide the necessary causal facts to link Dr. Mettauer's procedure and the death.  After the initial hearing, Dr. Carey amended his report, but Dr. Mettauer lodged the same objections.  The objections were overruled and this appeal followed.

Dr. Mettauer's first challenge to Dr. Carey's expert report centered on misstatements and factual errors in the report.  In support of his position, Dr. Mettauer's counsel showed the trial court additional medical records, a PowerPoint presentation on the use of the surgical system, and Dr. Mettauer's answers to interrogatories.  Dr. Mettauer argued that the trial court should ave been allowed to consider this evidence and to take judicial notice of specific medical facts.  The appellate court denied this challenge, holding

• The appellate court may not engage in a review of the documents not relied upon by the expert.
• The trial court's role is that of a gatekeeper, not a factfinder.
• Extraneous information, which was not relied upon by an expert in making his determinations and which does not appear in the report, may not be reviewed in determining the sufficiency of an expert report.

The trial court then considered the challenge to Dr. Carey's qualifications.  Dr. Carey stated in his report that although he had not performed a  thoracoscpic cardiac ablation, he had done thorascopic procedures and he had done open cardiac ablations.  The appellate court held that this was sufficient to show that Dr. Carey had knowledge of the accepted standards of care for a  thoracoscpic cardiac ablation.

Plaintiffs sought sanctions against Dr. Mettauer for filing a frivolous appeal.  The Court noted that Dr. Mettauer's arguments regarding extraneous information were contrary to overwhelming weigh of authority.  However, it noted that his reasoning was based on prior case law (Baptist Hospitals of Southeast Texas v. Carter, 2008 WL 2917109 at *3, Tex. App.--Beaumont 2008, no pet. mem. op.) and that the more recent case that the Court relied on (Christus Health Se. Tex v. Broussard, 306 S.W.3d 934, 939 Tex. App.--Beaumont 2010, no pet.)  was issued only day before the notice of appeal was filed.  The Court did not award sanctions.

See the opinion at Mettauer v. Noble. 

8th COA--Providence v. Barnes et al.; expert report, expert qualifications

In this appeal of a motion to dismiss for failing to serve an expert report authored by a qualified expert, the El Paso COA affirmed the trial court's decision. The case stemmed from care and treatment rendered to Plaintiff's mother at Providence. Plaintiffs served the reports and CVs of three experts: Michael Koumijan, M.D.; Juan Contin, M.D. and Angelica Tyler, R.N. Plaintiffs objected the reports, claiming they were inadequate and the authors were not qualified as experts. They also claimed that Dr. Contin's report was not an expert report at all.  

The COA first held that the three expert reports could be read together to determine if they met the standards for Chapter 74 expert report.  The COA then found that Dr. Koumijan and Nurse Tyler stated the standard of care for treating a patient undergoing an angiogram.  They also found the reports adequate as to causation. 

The COA then looked at the expert qualifications.  They overruled Providence's point that Dr. Koumijan was not licensed in Texas.  They then considered whether Dr. Koumijan, Chief of Surgery at a hospital in California, was qualified to testify as to the standard of care for nursing care and transfer of a patient.  Because his position "necessarily entails supervision of and interaction with the requisite health care providers,"  Dr. Koumijan was qualified. 

Providence also challenged the qualification of Nurse Tyler because she worked as a medical care investigator for the Attorney General in New Mexico, not in direct patient care.  The COA held that Nurse Tyler had education, certifications and experience in many areas of nursing.  They stated that her position as an investigator was akin to a consulting health care provider who is licensed, certified or registered in the same field as the defendant.

See the full opinion at Providence v. Barnes.