A patient went to an El Paso plastic surgery practice for a breast augmentation. The surgeon performed the implant surgery. A few days later a follow-up visit revealed that a small opening had occurred in the incision. The physician advised the patient to keep the area clean and scheduled another follow-up visit five days later. The infection had worsened, demonstrated by the enlargement of the opening and drainage at the site. This time the physician performed an incision and drainage and reclosed the wound. Two weeks later the patient returned with a re-opening of the wound and more drainage. The physician removed the implant and continued treating the patient for an ongoing infection, leading to additional procedures in the following months. The patient sued the physician and the practice for negligence and filed an expert report. The defendants challenged the adequacy of the report on the basis of causation and moved to dismiss. The trial court granted the motion. The patient appealed.
These are the facts of Ivette Rios v. El Paso Cosmetic and Plastic Surgery Center, P.A. and Paul Phillips, M.D. (No. 08-21-00117-CV; filed January 24, 2023). The issue before the court of appeals was whether the expert report adequately addressed the causation element of the patient’s claim as required by § 74.351, CPRC. Defendants argued that the report was inadequate because it did not explain “how and why” a delay in removing the patient’s breast implant made any difference to the progression of her infection. The patient’s expert, a practicing plastic surgeon, opined that the standard of care dictated that the physician remove the implant and seek an infectious disease consultation at the first sign that the infection was worsening. According to the expert, if the physician had not waited another two weeks to remove the implant, the patient’s infection would not have worsened in the following months and required additional surgery. Defendants responded that the report did not show how the later infection, shown by bacteria cultures, related back to the initial infection, and further did not indicate the rate at which an infection might progress, state the type of antibiotics required, or detail any necessary method of administering such treatment.
The court of appeals found that the expert report gave defendants fair notice of the “how and why” the physician’s alleged delay in removing the implant could have been a substantial cause of the subsequent worsening of the infection. In reviewing the expert report, the court looked to the “entirety” of the report, which took into account the entire history of the patient’s treatment by the same physician. This continuing physician-patient relationship seemed to weigh heavily in the court’s decision to find the report adequate, since at this stage of the litigation the court’s duty is not to put plaintiff to all of its proof on the underlying claim but only to determine whether a report “make[s] a good-faith effort to explain, factually, how proximate cause is going to be proven” (citations omitted). According to the court, the report adequately explained both the foreseeability element (the physician knew or should have known at an early stage that the implant was infected) and cause-in-fact (the delay and failure to obtain an infectious disease consult combined to cause the progression of the infection). The report thus “provide[d] enough information to (1) inform [defendants] of the conduct called into question; and (2) provide the trial court with a basis to conclude that [plaintiff’s] claims have merit” (citations omitted).
In our view, this case presented the court of appeals with a close call. Of course, if it is a close call, then it would be hard to say that the trial court clearly abused its discretion in finding that the report’s causation opinion was lacking. At the same time, though, the expert report requirement was not intended to require the plaintiff to prove its case at the outset of the litigation, only to give the provider fair notice of the facts substantiating the claim and the trial court enough information to determine that the case is not frivolous. Making these calls simply isn’t easy, especially when reasonable minds could differ, as they could here.
