ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 6 P4:17 Lisa Matz CLERK

Transcription

1 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 6 P4:17 Lisa Matz CLERK

2 IDENTITY OF PARTIES AND COUNSEL Appellants: Counsel for Appellants on Appeal: Counsel for Appellants at Trial: Appellee: Counsel for Appellee on Appeal: Counsel for Appellee at Trial: Other Appellees: Robert Fortner and Pam Fortner Jeffrey S. Levinger Levinger PC 1445 Ross A venue, Suite 2500 Dallas, Texas Phone: (214) Kenneth B. Chaiken Robert L. Chaiken Chaiken & Chaiken, P.C. One Galleria Tower Noel Road, Suite 600 Dallas, TX Phone: (214) James E. Rellas, M.D., P.A. d/b/a Heartfirst Cardiology Center and Medical Edge Healthcare Group, P.A. d/b/a The Texas Clinic at Prestonwood Jennifer G. Martin Schell Cooley LLP Dallas Pkwy, Suite 550 Addison, TX Phone: (214) Susan C. Cooley Lisa M. Wilson Schell Cooley LLP Dallas Pkwy, Suite 550 Addison, TX Phone: (214) Hospital of the Southwest, LLP d/b/a The Heart Hospital Baylor Plano; Gregory Messner, D.O.; Gary E. Erwin, Jr., M.D., Jeff E. Taylor, M.D. and Health Texas Provider Network d/b/a Dallas Diagnostic Association-Plano

3 Counsel for Other Appellees: Hospital of Southwest, LLP d/b/a The Heart Hospital Baylor Plano: Gregory Messner, D.O.: Gary E. Erwin, Jr., M.D., Jeff E. Taylor, M.D. and HealthTexas Provider Network d/b/a Dallas Diagnostic Association-Plano: John A. Scully Cory M. Sutker Michelle Robberson Cooper & Scully, P.C. Founders Square 900 Jackson St., Suite 100 Dallas, TX Joel J. Steed John Stephenson Steed Flagg Lamberth L.L.P. One Horizon Ridge 1010 West Ralph Hall Parkway, Second Floor Rockwall, TX Russell G. Thornton Stinnett Thiebaud & Remington 1445 Ross Ave., Ste Dallas, TX Trial Court Judge: MartinLowy 101 st District Court Dallas County, Texas 600 Commerce St., Box 640 Dallas, Texas ii

4 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL i INDEX OF AUTHORITIES... v STATEMENT OF THE CASE... 2 REQUEST FOR ORAL ARGUMENT... 3 ISSUE PRESENTED... 4 The trial court did not abuse its discretion in concluding Appellants failed to timely serve an expert report that provides a fair summary of the causal relationship between Appellees' employee's alleged failure to meet the standards of care and the injury, harm or damages claimed by Appellants as required by ofthe Texas Civil Practice and Remedies Code. STATEMENT OF FACTS... 5 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 I. This Court Reviews the Trial Court's Determination of Whether Appellants' Expert Reports Met the Requirements of of the Texas Civil Practice and Remedies Code Under an Abuse of Discretion Standard... 7 II. Appellants' Expert Reports Fail to Adequately Link the Alleged Breach of the Standard of Care by Dr. Messner to the Harm Suffered by Mr. Fortner... 7 A. The Trial Court Did Not Apply the Wrong Standard The Expert's Report Must Express the Causal Relationship Beyond a Mere Possibility... 9 iii

5 2. The Trial Court Did Not Require Appellants' Expert Report to Use Magic Words, Such As "Reasonable Medical Probability," But Instead Was Requiring the Reports to Sufficiently Articulate a Causal Probability Appellants' Expert Reports Fail to Articulate a Window of Opportunity That Is Necessary to Ascertaining Whether Appellants' Claims Against Appellees Have Merit a. Dr. Sadun Fails to Articulate When His Narrow One Hundred Minute Window of Opportunity Opens or Closes b. The Window of Opportunity Implied By Dr. Kress's Report Cannot Be Causally Connected to the Conduct of Dr. Messner B. Neither Fagadau nor Pediatrix Suggest That Appellants' Expert Report Does Not Need to Articulate a Window of Timing That Implicates the Conduct of Appellees PRAYER iv

6 INDEX OF AUTHORITIES Cases Am. Transitional Care Ctrs. oftex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001)... 7, 8 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex. App.-Austin 2007, no pet.)... 8, 16 Bowie Mem 'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002)... 7, 8, 10, 12, 16 Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (Tex. App.-San Antonio 2004, no pet.)... 9, 11 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)... 7 Fagadau v. Wenkstern, 311 S.W.3d 132 (Tex. App.-Dallas 2010, no pet.)... 17, 18 Garcia v. Martinez, 988 S.W.2d 219 (Tex. 1999)... 7 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App.-Houston [1st Dist.] 2006, no pet.)... 7, 8, 12, 16 Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (Tex. App.-Houston [1st Dist.] 2007, no pet.) Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. App.-San Antonio 2004, no pet.) Longino v. Crosswhite, 183 S.W.3d 913 (Tex. App.-Texarkana 2006, no pet.)... 8 Pediatrix Med. Group, Inc. v. Robinson, 352 S.W.3d 879 (Tex. App.-Dallas 2010, no pet.)... 17, 18 Quinones v. Pin, 298 S.W.3d 806 (Tex. App.-Dallas 2009, no pet.)... 9, 10 v

7 Sanjar v. Turner, 252 S.W.3d 460 (Tex. App.-Houston [14th Dist.] 2008, no pet.) Taylor v. Fossett, 320 S.W.3d 570 (Tex. App.- Dallas 2010, no pet.) Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743 (Tex. App.-El Paso 2011, no pet.)... 9, 13 Wells v. Ashmore, 202 S.W.3d 465 (Tex. App.-Amarillo 2006, no pet.) Statutes Texas Civil Practice and Remedies Code , 7 vi

8 Cause No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS Robert Fortner and Pam Fortner Appellants, v. Hospital of the Southwest, LLP d/b/a The Heart Hospital Baylor Plano; Gary E. Erwin, Jr. M.D.; Jeff Taylor, M.D.; Gregory Messner, D.O.; Health Texas Provider Network d/b/a Dallas Diagnostic Association-Plano; James E. Rellas, M.D., P.A. d/b/a HeartFirst Cardiology Center; and Medical Edge Healthcare Group, P.A. d/b/a The Texas Clinic at Prestonwood, Appellees. Appealed from the lopt District Court of Dallas County, Texas APPELLEES JAMES E. RELLAS, M.D, P.A. DIB/ A HEARTFIRST CARDIOLOGY CENTER AND MEDICAL EDGE HEALTHCARE GROUP, P.A. D/B/A THE TEXAS CLINIC AT PRESTONWOOD'S BRIEF ON THE MERITS TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: COME NOW, James E. Rellas, M.D., P.A. d/b/a HeartFirst Cardiology Center and Medical Edge Healthcare Group, P.A. d/b/a The Texas Clinic at Prestonwood (hereinafter collectively referred to as "Medical Edge"), and respond to the points raised in the Appellants' Brief as follows:

9 STATEMENT OF THE CASE This is an action for alleged medical malpractice brought by Appellants Robert and Pam Fortner (the "Fortners") against Hospital of the Southwest, LLP d/b/a The Heart Hospital Baylor Plano (the "Hospital"), Gary E. Erwin, Jr. M.D. ("Dr. Erwin"), JeffTaylor, M.D. ("Dr. Taylor"), Gregory Messner, D.O. ("Dr. Messner"), HealthTexas Provider Network d/b/a Dallas Diagnostic Association-Plano ("DDA-Plano"), and Medical Edge (collectively referred to as "Defendant-Appellees"). (1 CR 8-18, ) In an attempt to satisfy the requirements of (a) ofthe Texas Civil Practice and Remedies Code, the Fortners tendered to Defendant-Appellees the purported expert report of John Kress, M.D. (1 CR ). All Defendant-Appellees objected to Dr. Kress' report as insufficient under of the Texas Civil Practice and Remedies Code. (1 CR ) The parties reached an agreement that the Fortners would be allowed the 30-day extension contemplated by the statute to cure any deficiencies in the causation portion of their expert report. (2 RR 7-10.) Subsequently, the Fortners served a supplemental report from Dr. Kress (2 CR ) and a report and curriculum vitae of Alfredo Sadun, M.D. (2 CR ). All Defendant-Appellees again objected that the reports were not sufficient to meet the requirements of of the Texas Civil Practice and Remedies Code. (2 CR ) The trial court sustained the objections to the reports, finding they were insufficient with regard to the element of causation, and therefore dismissing all claims against all Defendant Appellees with prejudice. (2 CR ; Supp. CR ) 2

10 REQUEST FOR ORAL ARGUMENT Pursuant to Rule 39 of the Texas Rules of Appellate Procedure, Appellees James E. Rellas, M.D., P.A. d/b/a Heartfirst Cardiology Center and Medical Edge Healthcare Group, P.A. d/b/a The Texas Clinic at Prestonwood hereby request oral argument on this appeal. Appellees base this request on their belief that oral argument is needed to assist in the adequate presentation of the arguments and issues before this court, particularly given the numerous Appellees, these parties' separate and unique roles in the care and treatment of Appellant Ronald Fortner, and the factual nature of the opinions set forth in the Chapter 74 expert reports at issue. 3

11 ISSUE PRESENTED The trial court did not abuse its discretion in concluding Appellants failed to timely serve an expert report that provides a fair summary of the causal relationship between Appellees' employee's alleged failure to meet the standards of care and the injury, harm or damages claimed by Appellants as required by of the Texas Civil Practice and Remedies Code. 4

12 STATEMENT OF FACTS On July 15,2008, Dr. Messner (an employee ofmedical Edge) performed a coronary artery bypass graft procedure on Robert Fortner. (2 CR473). On the following day, July 16, 2008, at 3:04 p.m., a physical therapist evaluating Mr. Fortner noted a "requirement for assistance secondary to visual impairment." (2 CR 473.) The record does not reflect that the physical therapist brought Mr. Fortner's visual impairment to the attention of any physician. (2 CR 474.) Later in the evening, at 6:10p.m., Nurse Karla Jones noted, "visual field disturbances, can only see the top half of fingers when held in front of him, can see ' 1' on face of clock." (2 CR 473.) Nurse Jones notified Dr. Erwin of Mr. Fortner's visual impairment at 6:40p.m. and notified Dr. Messner of the same at 7:20p.m., 216 minutes and 256 minutes, respectively, after the physical therapist first discovered Mr. Fortner was experiencing visual impairment. (2 CR 473.) At issue in this case is Appellee-Defendants' alleged "delay in obtaining necessary and appropriate treatment for Mr. Fortner" after he complained about visual impairment. (Appellants' Brief at 2.) Although the Fortners' petition alleged acts of direct negligence by Medical Edge (1 CR 71-72), the Fortners have conceded all direct claims of negligence and are only pursuing claims against Medical Edge under the theory of vicarious liability for the acts of its employee, Dr. Messner. (See Appellants' Brief at 2 n.l.) 5

13 SUMMARY OF THE ARGUMENT The Texas Medical Liability Act, specifically ofthe Texas Civil Practice and Remedies Code, required Appellants to serve on Appellee-Defendants, including Medical Edge, one or more expert reports that provided a fair summary of the causal relationship between the alleged failure of Dr. Messner (Medical Edge's employee) to meet the standards of care and the injury, harm or damages claimed by Appellants. The reports served by Appellants, even after a 30-day extension to cure, failed to provide more than conclusory opinions regarding causation. That is, the reports neglected to identify acts or omissions of Dr. Messner that bore a causal relationship to Mr. Fortner's injury. Specifically, the reports not only failed to show that Dr. Messner had an opportunity to act prior to Mr. Fortner suffering an irreversible injury, but instead suggested that the window of opportunity was closed before any alleged breach of the standard of care by Dr. Messner occurred. Accordingly, the trial court did not abuse its discretion in concluding that the F ortners' failed to timely serve Medical Edge with an expert report that complied with the requirements of of the Texas Civil Practice and Remedies Code. As such, this Court should affirm the trial court's ruling in that regard and its dismissal with prejudice ofthe Fortners' claims against Medical Edge. 6

14 ARGUMENT I. This Court Reviews the Trial Court's Determination of Whether Appellants' Expert Reports Met the Requirements of of the Texas Civil Practice and Remedies Code Under an Abuse of Discretion Standard. A trial court's ruling on a motion to dismiss a health care liability claim is reviewed for an abuse of discretion. Am. Transitional Care Ctrs. oft ex., Inc. v. Palacios, 46 S. W.3d 873, (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, (Tex. 1985). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would under similar circumstances. Grayv. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.). When reviewing a matter committed to the discretion of the trial court, a court of appeals may not substitute its judgment for that of the trial court. Bowie Mem 'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). II. Appellants' Expert Reports Fail to Adequately Link the Alleged Breach of the Standard of Care by Dr. Messner to the Harm Suffered by Mr. Fortner. The trial court must grant a motion to dismiss that challenges the adequacy of a report if the report "does not represent an objective good faith effort to comply" with the requirements for an "expert report" as defined by the statute. Tex. Civ. Prac. & Rem. Code (1). To constitute a "good faith effort," the report must provide enough information to fulfill two purposes: (1) inform the defendant health care provider of the specific conduct 7

15 the plaintiff has called into question, and (2) provide a basis for the trial court to conclude the claims have merit. Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). While the expert report need not marshal all of the plaintiffs proof, it must include the expert's opinion on each ofthe elements identified in Palacios, 46 S.W.3d at 878. The report cannot merely state the expert's conclusions about the statutory elements.!d. at 879. "Rather, the expert must explain the basis ofhis statements to link his conclusions to the facts." Wright, 79 S.W.3d at 52. This explanation must include more than the mere statement that an alleged breach of an applicable standard of care caused a particular outcome. Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex. App.-Amarillo 2006, no pet.). Causation must be shown beyond mere conjecture, and thus the expert's report must provide factual information describing how and why the alleged breach resulted in the alleged injury. Longino v. Crosswhite, 183 S.W.3d 913, 918 (Tex. App.-Texarkana 2006, no pet.). In determining whether an expert report constitutes a good-faith attempt to comply with the statute, a trial court is limited to the four comers ofthe report. Palacios, 46 S.W.3d at 878. The court is precluded from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. See Wright, 79 S.W.3d at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.-Austin 2007, no pet.); Gray, 189 S.W.3d at

16 A. The Trial Court Did Not Apply the Wrong Standard. The F ortners contend the trial court erred by ( 1) requiring the expert reports to provide but-for causation; (2) requiring the experts' opinions to be expressed in terms of reasonable medical probability; and (3) requiring the experts' reports to provide specificity as to when the window of opportunity opened and closed. (See Appellants' Brief at ) 1. The Expert's Report Must Express the Causal Relationship Beyond a Mere Possibility. With regard to the type of causation required by , the Fortners urge this Court to recognize a "significant distinction" between the "causal relationship" requirement of (r)(6) and proximate cause. (See Appellants' Brief at 7.) While neither this Court nor the Texas Supreme Court have ever specifically addressed whether an experts' Chapter 7 4 report must demonstrate "proximate cause"-that is cause in fact and foreseeablilty- this Court need not reach that issue here either as neither the trial court nor Appellee-Defendants ever suggested "proximate cause" or foreseeability had to be articulated in the report. Instead, the trial court expressed concern that Appellants' report failed to articulate "but for" causation. (See 3 RR 18.) No court has suggested that a "causal relationship" can be established by something less than "but-for" causation. See Quinones v. Pin, 298 S.W.3d 806, (Tex. App.-Dallas 2009, no pet.); see also Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743,755 (Tex. App.-El Paso 2011, no pet.) ("A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent said act or omission, the harm would not have occurred."); Costello v. 9

17 Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.-San Antonio 2004, no pet.). Moreover, "an expert report that describes causation in terms of mere possibilities does not accomplish the purpose of providing 'a basis for the trial court to conclude that the claims have merit.'" Taylor v. Fossett, 320 S.W.3d 570, 575 (Tex. App.- Dallas 2010, no pet.) (quoting Wright, 79 S.W.3d at 52; and citing Quinones, 298 S.W.3d at ). That is, Appellants' experts' reports must provide the trial court a reason to believe Appellants will ultimately be able to put forth proof that the alleged negligence of Appellee- Defendants caused Mr. Fortner's blindness. As such, the trial court's view that the experts' reports needed to provide an opinion of "but for" causation was not erroneous. 2. The Trial Court Did Not Require Appellants' Expert Report to Use Magic Words, Such As "Reasonable Medical Probability," But Instead Was Requiring the Reports to Sufficiently Articulate a Causal Probability. The F ortners also overstate their case in arguing the trial court erred by requiring their expert to express his causation opinion in terms of reasonable medical probability. The trial court's precise comment was he did not see "any indication that [the expert's] opinions are being expressed in terms of reasonable medical probability." (3 RR 18.) The trial court went on to say, "He does say reasonable degree of medical certainty or probability in one of his paragraphs, but that doesn't cure the other problem that I've got with it." (3 RR 19.) That is, the trial court did not require special language or magic words, but instead was looking for Appellants' experts to express their opinions in terms of probabilities, rather than possibilities and to explain how the conduct of each Appellee-Defendant was implicated. 10

18 Indeed, neither the presence nor absence of"magic words" is dispositive; the question is whether the report adequately links the facts to the conclusions in a manner that is not conclusory and allows the court to conclude the suit has merit. Hutchinson v. Montemayor, 144 S. W.3d 614, 618 (Tex. App.-San Antonio 2004, no pet.) ("Simply adding what has often been described as the 'magic words of "reasonable medical probability'" to an expert's opinion is not evidence of causation."); Costello at 249 ("While no particular term or phrase is required for an expert to establish causation, the converse is also true. Without more, the magic words of 'reasonable medical probability' provide no evidence of causation."). Thus, the question is not whether Appellants' experts used or failed to use "magic words," but instead whether those reports show the alleged breach of the standard of care by Dr. Messner caused injury to Mr. Fortner. As discussed in more detail below, Appellants' experts did not provide opinions that linked the breach they allege by Dr. Messner to the harm suffered by Mr. Fortner. As such, the trial court did not err in commenting on the failure of Appellants' experts to meet this requirement. 3. Appellants' Expert Reports Fail to Articulate a Window of Opportunity That Is Necessary to Ascertaining Whether Appellants' Claims Against Appellees Have Merit. Finally, with regard to the issue of timing, the trial court noted that while Dr. Sadun opined the window of opportunity was 100 minutes, he failed to identify when that window opened and closed. (3 RR 18.) The crux ofdr. Kress's and Dr. Sadun's causation opinion in this case is that Defendant-Appellees missed a narrow window of opportunity to obtain 11

19 a consult from a neuro-ophthalmologist who would have allegedly implemented treatment to prevent Mr. Fortner's vision loss. The issue here is whether Appellants' experts adequately linked or tied the facts ofthis case to their conclusions regarding causation such that their conclusions are not impermissibly conclusory and explain how each Appellee Defendant's alleged violation of the standard of care caused the harm of which the Fortners complain. See Wright, 79 S.W.3d at 52; Gray, 189 S.W.3d at 859. In this case, because the window of opportunity for successful intervention is, according to the F ortners' own experts, narrow (only 100 minutes), and the time period over which the various Defendant-Appellees are involved is so lengthy (spanning several hours), fitting the facts to the conclusions in a manner that allows the trial court to determine whether the F ortners' claims against each Defendant-Appellee have merit requires knowing when the window of opportunity opened and closed. While Dr. Sadun opined there was "a failure of the named Defendants in this case to obtain timely consultation by an ophthalmologist and a resulting failure to commence in a timely fashion [a transfusion]" that Dr. Sadun concludes "led to Mr. Fortner's permanent blindness," (2 CR 472), this opinion is conclusory because Dr. Sadun neglected to explain how the various alleged failures of each separate Defendant-Appellee caused the harm to Mr. Fortner; that is, because Dr. Sadun failed to link his conclusions to the facts of this case. Likewise, Dr. Kress concluded, "singularly or in combination, each of the above-described breaches of the applicable standard of care by the physical therapist, Ms. Jones, Drs. 12

20 Messner, Erwin, Taylor and PULM/CC PHYSICIAN (if other than Drs. Taylor and Erwin) and Baylor Heart Hospital proximately caused or contribued to causing a substantial injury, and damages to Mr. Ronald Fortner... as more fully described by Dr. Sadun," (2 CR 474), but failed to set out how each Appellee-Defendant in fact caused or contributed to the injury. The trial court's concern was that in this case with multiple providers, Appellants' experts had to "try to figure out which member of the team dropped the ball," but failed to do so. (3 RR 19.) There are a number of cases standing for the proposition that an expert's report is deficient where it lumps all defendants together and fails to explain how each defendant's act or omission caused the harm. See, e.g., Love, 347 S.W.3d at 755; Sanjar v. Turner, 252 S.W.3d 460,465 (Tex. App.-Houston [14th Dist.] 2008, no pet.); Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 179 (Tex. App.-Houston [1st Dist.] 2007, no pet.). The facts ofthis case, coupled with Dr. Sadun' s opinion regarding the "narrow window of opportunity" to reverse the damage, demonstrate why opinions addressing the conduct of each provider are necessary in this case. Specifically, the relevant events are as follows: Dr. Messner operated on Mr. Fortner on July 15, (2 CR 473.) Neither report contains any criticism regarding the operation itself. "[S]hortly after surgery" and on the first post-operative day (July 16), Mr. Fortner had low blood pressure. (2 CR 477; 2 CR 473.) Mr. Fortner also had anemia on post-operative day one, (2 CR 473), and on post-operative day two (2 CR 473; 2 CR 476). Again, neither report criticizes any provider for not acting in response to the drop in blood pressure or 13

21 anemia. Not later than 3:04 p.m. on July 16, Mr. Fortner was experiencing "visual impairment" as noted by the physical therapist. (2 CR 4 73.) (Of course, this is just the first note reflecting visual impairment and in no way precludes the possibility that Mr. Fortner had been experiencing visual changes for minutes or even hours prior to this note.) Subsequently, Nurse Jones notes "visual field disturbances" at 6:10p.m. (2 CR 4 73.) Nurse Jones notified Dr. Erwin of this change at 6:40p.m. and Dr. Messner at 7:20p.m. (2 CR 473.) The breaches of the standard of care articulated by the expert reports focus on a failure to react to these reports of visual changes noted by the physical therapist and Nurse Jones, and subsequently reported by Nurse Jones to Dr. Erwin and Dr. Messner. (2 CR , 478.) a. Dr. Sadun Fails to Articulate When His Narrow One Hundred Minute Window of Opportunity Opens or Closes. Dr. Sadun opines, "the amount of time that it takes the optic nerve to undergo irreversible loss following a lack of blood supply is in the order of a hundred minutes." (2 CR 477 (emphasis added).) 1 Dr. Sadun, however, never opines when Mr. Fortner suffered such a lack of blood supply, i.e. when the narrow window of one hundred minutes begins. While he mentions a number of clinical findings (hematocrit of 22.6% and hemoglobin of 7.5 on postoperative day two, a blood pressure of71/40 "shortly after surgery," decreased vision in the right eye "[b ]y postoperative day one" and a "day or two later in the left eye"), 1Additionally, while Dr. Sadun indicates "there are a number of factors that might make this [time period] longer," (2 CR477), he never articulates what those factors are or whether any of them were present in the case of Mr. Fortner. 14

22 he never states which of these events or observations signaled the beginning of the critical time frame. (2 CR ) Indeed, while the implication from Dr. Kress's report (and Appellants' Brief) is that the window of opportunity began with the first observation of visual impairment by the physical therapist, Dr. Sadun never makes this connection; instead, just before opining that the window of opportunity to avoid irreversible damage is one hundred minutes, Dr. Sadun comments, "in circumstances where the patient becomes very anemic (low hematocrit) and or drops in blood pressure for a reasonably long duration, one can see such an event" and he further opines, "it is my opinion that the loss of vision that affected Mr. Fortner... was a consequence of a drop in blood count as expressed by hemoglobin and hematocrit (anemia) possibly compounded by drops in blood pressure." (2 CR ) Yet, nowhere in either Dr. Sadun's or Dr. Kress's report do they advise when Mr. Fortner's blood count or blood pressure dropped low enough that ischemic injury to the optic nerve began (nor do they discuss whether Dr. Messner was aware of these drops in blood count and pressure or, if so, how Dr. Messner responded to same). With regard to Dr. Messner, if the ischemic injury described by Dr. Sadun's report occurred anytime earlier than 5:40p.m. (that is, 100 minutes before Dr. Messner was notified by Nurse Jones of Mr. Fortner's visual changes), then Dr. Messner's failure to act more quickly in response to Nurse Jones's report cannot have been a cause in fact of Mr. Fortner's injury; that is, if the ischemic injury occurred earlier than 5:40p.m., it is Dr. Sadun's opinion the damage to Mr. Fortner's optic nerve was already irreversible and therefore Dr. Messner's response at that 15

23 point was immaterial to Mr. Fortner's outcome. Thus, Dr. Sadun's failure to explain when this narrow window of one hundred minutes occurred prevented the trial court from determining whether the Fortners' claims against Dr. Messner (and therefore vicariously against Medical Edge) had merit. b. The Window of Opportunity Implied By Dr. Kress's Report Cannot Be Causally Connected to the Conduct of Dr. Messner. In contrast to Dr. Sadun's report, Dr. Kress's report seems to imply that the window of opportunity described by Dr. Sadun' s report occurred, ''when [Mr. Fortner's] acute visual changes were first noted" (2 CR 474.) Dr. Kress, however, fails to explain what he means by when "acute visual changes were first noted" or when that event occurred. The inference Appellants have drawn is that Dr. Kress must be referring to the observation of the physical therapist at 3:04 p.m. on July 16. (Appellants' Brief at 21.) Appellees first note that Appellants' interpretation requires the Court to do something it cannot - fill in gaps in Dr. Kress's report by drawing inferences or guessing as to what Dr. Kress likely meant or intended. See Wright, 79 S.W.3d at 53; see alsoaustinheart, 228 S.W.3d at279; Gray, 189 S. W.3d at 859. However, even presuming for the sake of argument that Appellants have not made an impermissible inference that Dr. Kress- and by extension Dr. Sadun- opined that the window of opportunity opened at 3:04 p.m., such opinion irreconcilably conflicts with any opinion that Dr. Messner's failure to respond more quickly to Nurse Jones's report bears a causal relationship to Mr. Fortner's injury. That is, if the window opened at 3:04p.m., then 16

24 it closed 100 minutes later at 4:44p.m.- nearly two and one-half hours before Dr. Messner received Nurse Jones's call at 7:20p.m. As nothing in Dr. Kress's or Dr. Sadun's report suggests Dr. Messner should have acted without first knowing of an acute change in vision, there is no viable argument the claims against Dr. Messner have merit because he did know of any acute vision changes until well outside the window of opportunity. Regardless of the definition of "causal relationship," nothing within the four comers of these two reports indicates any action on Dr. Messner's part upon learning of Mr. Fortner's visual changes at 7:20p.m. could have in any probability changed Mr. Fortner's outcome. B. Neither Fagadau nor Pediatrix Suggest That Appellants' Expert Report Does Not Need to Articulate a Window of Timing That Implicates the Conduct of Appellees. Appellants' reliance on the Fagadau and Pediatix cases is misguided. In both cases, the expert reports at issue expressly defined a specific time period during which the defendants should have acted, which would have led to a different outcome; that is, the experts' reports defined when the window of opportunity opened and closed. See Fagadau v. Wenkstern, 311 S.W.3d 132, 139 (Tex. App.-Dallas 2010, no pet.) ("ifwenkstem had been re-examined either by Dr. F agadau or another physician within two weeks, the tears in Wenkstem's right eye would have been found in time to be treated successfully with a laser before the retina detached."); Pediatrix Med. Group, Inc. v. Robinson, 352 S.W.3d 879, 886 (Tex. App.-Dallas 2010, no pet.) (appellee's expert opined that the appellants' failure to ensure proper follow-up examinations "'during the period between 8/31100 and 9/25/00, 17

25 [when] Ruben's eyes reached and passed the threshold level ofrop without treatment'" caused his injury). The physician-appellant in each of those cases complained, not that the plaintiffs expert did not articulate a "window of opportunity," but that the time period asserted by the expert was conjectural orconclusory. See Fagadau, 311 S.W.3dat 138 ("Dr. Fagadau contends the expert report in this case is conjectural with respect to causation because there is no indication of the exact date Wenkstem's retinal detachment occurred.") (emphasis added); Pediatrix, 352 S.W.3d at 886 (appellants contended the expert's report failed to explain how or why he concluded intervention was required between August 31 and September 25, as opposed to a later date). This Court held, in each case, the reports at issue sufficiently described a causation scenario such that had the defendant-provider acted within the delineated period of time, the outcome would have been different. See Fagadau, 311 S.W.3d at 139; Pediatrix, 352 S.W.3d at 886. The present case is distinguishable from Fagadau and Pediatrix. Appellants' expert reports do not clearly articulate the window of opportunity; although Dr. Sadun tells the court it is a narrow window of only 100 minutes, he does not tell the court when that window begins or ends. Critically, because the time frame over which the various Appellee Defendant providers had a duty to act does not coincide with the narrow 100 minute window, depending on when the window opens and closes, a causal relationship to the conduct of at least some- if not all- of these providers becomes impossible. Accordingly, the Fortners' experts failed to do what the experts in Fagadau and Pediatrix did, articulate a window of 18

26 opportunity during which the complained of acts or omissions of the health care providers can be linked to the harm suffered by the patient. In the absence of such factual linkage, the opinions of Dr. Sadun and Dr. Kress that the failure of each of the Appellee-Defendants to act more quickly caused Mr. Fortner's blindness is impermissibly conclusory. Thus, the trial court did not abuse its discretion in concluding that the Fortners failed to timely serve an expert report that complied with the requirements of ofthe Texas Civil Practice and Remedies Code. As such, this Court should affirm the trial court's ruling in that regard and dismissal with prejudice of the Fortners' claims against Medical Edge. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court affirm the trial court's judgment sustaining Appellees' objections to Appellants' purported expert reports and granting Appellees' motions to dismiss, and grant Appellees all other and further relief to which they may be justly entitled. 19

27 Respectfully submitted, A Dallas Parkway, Suite 550 Addison, Texas (214) (214) FAX ATTORNEYS FOR APPELLEES: JAMES E. RELLAS, M.D, P.A. D/B/A HEARTFIRST CARDIOLOGY CENTER AND MEDICAL EDGE HEALTHCARE GROUP, P.A. D/B/A/ THE TEXAS CLINIC AT PRESTONWOOD CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Appellants' Brief has been served on all counsel of record via certified mail, return receipt requested, in accordance with the Texas Rules of Appellate Procedure on this 6th day of March,