William J. Norberg Jr., M.D. v. Alexis Ameel, Pieter Ameel, and Acacia Ameel

Citation: Not availableDocket: 13-18-00165-CV

Court: Court of Appeals of Texas; December 18, 2019; Texas; State Appellate Court

Original Court Document: View Document

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William J. Norberg Jr., M.D., and others (appellants) appeal a trial court's denial of their motions to dismiss a healthcare liability claim from Alexis Ameel and her family (appellees). The appellants argue that the Ameels' expert reports did not comply with Texas Civil Practice and Remedies Code § 74.351, which requires expert reports to detail the standard of care, deviations from that standard, and the causal relationship between the alleged breaches and the injuries sustained.

The case involves Alexis Ameel, who was diagnosed with deep-vein thrombosis and subsequently treated at Doctor’s Hospital at Renaissance, where she remained for thirteen days. Following her treatment, she was diagnosed with Catastrophic Antiphospholipid Syndrome and pulmonary emboli after being transferred to Texas Children’s Hospital. The Ameels filed their original petition in 2017, alleging negligence by the appellants for failing to diagnose her condition.

The expert reports submitted by the Ameels’ experts, Dr. Michael Tsifansky and Dr. S. Robert Hurwitz, claimed that the appellants failed to conduct necessary diagnostic procedures during Alexis's treatment. The appellants contested the adequacy of these reports, asserting they did not demonstrate a good faith effort to meet the statutory requirements. The trial court rejected the appellants’ objections and denied their motions to dismiss, leading to this interlocutory appeal.

The appellate court acknowledges that in a medical liability claim, expert reports must adequately outline the applicable standard of care, identify how that standard was breached, and establish a causal link between the breach and the plaintiff's injuries. The court will first evaluate whether Dr. Tsifansky's report fulfills these statutory requirements.

A report meeting specified requirements allows a plaintiff to initiate a lawsuit against a defendant physician, as noted in Certified EMS, Inc. v. Potts. The report must identify the conduct in question and provide a basis for the trial court to determine the merits of the claims, without needing to address every potential liability theory. If a liability theory is deemed supported, the claim is not frivolous, permitting the lawsuit to proceed. The trial court's decision regarding expert reports is reviewed for abuse of discretion, defined as acting unreasonably or arbitrarily, with the review limited to the report's contents.

In the analysis of the case, Dr. Tsifansky's expert report identifies the treating physicians of Alexis during her hospitalization at DHR, noting her diagnosis of deep vein thrombosis (DVT) and symptoms associated with Crohn's Disease. The report asserts that the standard of care for the physicians included considering the possibility of pulmonary embolism (PE) in a patient exhibiting these conditions and symptoms. The report states that appropriate diagnostic tests, like a pulmonary CT angiogram, were not ordered, recommended, or performed by the defendants despite Alexis's deteriorating condition. Consequently, all named defendants are alleged to have breached the standard of care by failing to conduct necessary tests during her hospital stay.

The standard of care for the defendants required them to routinely assess for pulmonary embolism (PE) in critically ill patients with deep vein thrombosis (DVT) and to perform necessary imaging, such as a pulmonary CT angiogram, when PE was clinically suspected. Failure to conduct these evaluations after the initial chest x-ray ordered on May 9, 2015, resulted in delayed diagnosis of Alexis's multiple PEs and consequent injuries, leading to unnecessary medical interventions and suffering. Dr. Tsifansky's expert report indicated that all named physicians—Drs. Sabatelli, Perez-Young, Reddy, Norberg, Turlapati, and Almeda—failed to meet the same standard of care, which did not require differentiation among the types of healthcare providers involved. This perspective aligns with Texas case law, which allows grouping providers under a uniform standard when they owe similar duties to a patient. The report's collective reference to the defendants does not undermine its adequacy, as it reflects that all parties shared the same standard of care responsibilities. The court rejected the appellants’ arguments regarding the necessity of distinct standards for each physician.

Appellants claim that the expert report fails to demonstrate deviations from the applicable standard of care. Dr. Tsifansky indicates that Drs. Sabatelli, Perez-Young, and Reddy performed Doppler ultrasounds on Alexis, revealing multiple deep vein thromboses (DVT) in her right leg, alongside worsening symptoms including high suspicion of heparin-induced thrombocytopenia, nausea, vomiting, tachycardia, and the presence of blood in her urine. Despite these symptoms suggesting a pulmonary embolism (PE), appellants did not perform necessary angiograms prior to her transfer to TCH. Dr. Tsifansky asserts that this omission constitutes a breach of the standard of care, as an angiogram would have identified and allowed for the removal of the PE.

While Dr. Norberg treated Alexis on her admission day, initiating a heparin drip and ordering a chest x-ray, his report did not detail any further evaluations or treatments after that date. The chest x-ray did not indicate PE, and Dr. Tsifansky's report failed to clarify how Dr. Norberg breached the standard of care considering he was not involved when Alexis exhibited severe symptoms. Therefore, the report is deemed deficient regarding Dr. Norberg's actions.

Additionally, appellants argue that the report inadequately establishes a causal link between the alleged breaches and the injuries sustained. Under Texas law, an expert must provide a clear explanation of how a healthcare provider's breach caused the injury. The report does not fulfill this requirement, as courts cannot make inferences or assumptions to fill gaps in the expert's analysis. Consequently, the court finds the report insufficient in establishing both the standard of care and causation.

Dr. Tsifansky's report focuses on causation related to the appellants' standard of care in treating Alexis Ammel, a critically-ill patient with deep vein thrombosis (DVT). He asserts that the standard required daily consideration of pulmonary embolism (PE) and the performance of a pulmonary CT angiogram or invasive angiogram when PE was suggested by clinical findings. Dr. Tsifansky argues that these imaging tests would have detected emboli in Alexis's chest, either from her DVT or related to her Crohn’s Disease, allowing for timely treatment that could have prevented her life-flight to Texas Children’s Hospital (TCH) and subsequent surgeries.

He establishes a clear connection between the alleged breaches of the standard of care by the appellants and Alexis’s injuries, emphasizing that their failure to perform the necessary imaging studies resulted in a delay in diagnosis and treatment. This delay contributed to complications that led to her medical emergencies. Citing relevant case law, Dr. Tsifansky notes that an expert's explanation of causation does not require the precision of trial evidence. While the report does not specify when Alexis's PE was detected, it indicates that her symptoms—such as DVT and other significant health issues—should have prompted the appellants to act sooner.

Dr. Tsifansky concludes that had the angiograms been performed, they would have likely detected the PE, preventing the need for urgent medical interventions and the associated pain and impairment Alexis experienced.

The court found that the expert report by Dr. Tsifansky sufficiently demonstrated that the failure to perform angiograms significantly contributed to the delayed treatment and subsequent injury of Alexis. The report met the necessary criteria of being detailed enough to inform the appellants of the specific conduct in question and to allow the trial court to recognize the merit of the claims, as established in previous case law. The court emphasized that an expert report does not need to prove the entire case but should make a good-faith effort to establish a factual connection between the alleged negligence and the injuries claimed. Consequently, the trial court did not abuse its discretion in denying the motions to dismiss from Drs. Reddy, Turlapati, Almeda, Sabatelli, and Young, as Dr. Tsifansky's report provided an adequate basis for the claims. However, the court ruled that the trial court erred in not dismissing Dr. Norberg's motion since the report did not address his breach of the standard of care. Regarding Dr. Hurwitz's qualifications, the court noted that since Dr. Tsifansky's report was sufficient, it was unnecessary to address the challenges against Dr. Hurwitz. The court reversed the trial court's order concerning Dr. Norberg and remanded the case for a decision on whether to grant the Ameels a thirty-day extension to address the report's deficiencies, while affirming the remainder of the judgment.