HOUSTON – A Texas appeals court has affirmed dismissal of a woman’s medical malpractice litigation against Houston Methodist Willowbrook Hospital and her doctor, which had charged the defendants with failing to diagnose her rectal cancer in a timely fashion and necessitating procedures to treat the cancer and permanent injuries.
On July 16, Fourteenth Court of Appeals justices Frances Bourliot, Jerry Zimmerer and Charles A. Spain unanimously upheld the 165th District Court of Harris County, Texas’s ruling, in Patricia Martin’s case versus Methodist Health Centers (doing business as “Houston Methodist Willowbrook”) and Diego C. Marines Copado, M.D.
Bourliot wrote the Court’s opinion in this action.
“Martin filed suit against appellees for medical malpractice on April 1, 2021, contending that Dr. Marines failed to timely diagnose her rectal cancer, resulting in additional required procedures to treat the cancer and permanent injuries. Martin then timely served appellees with an expert report prepared by Dr. James Cusack, Jr. as required by Civil Practice and Remedies Code Section 74.351(a). Among other opinions, Cusack stated that ‘Marines’ failure to perform a thorough digital rectal examination or sigmoidoscopy/proctoscopy to establish a diagnosis of low rectal cancer when Patricia Martin first presented with rectal bleeding, rectal pain and fecal incontinence resulted in a significant delay of diagnosis of six months, during which time the tumor continued to grow into the surrounding tissues,” Bourliot said.
“Cusack further asserted that ‘the tumor progressed to the point of perforation’ within a month of a proper diagnosis by another doctor, ‘leading to a series of…additional procedures [that] would not have been necessary or performed if [Marines] had performed a thorough DRE, proctoscopy/sigmoidoscopy during either his first or second evaluation.’ Cusack therefore concluded that ‘the six-month delay in diagnosis led to progression of disease to a locally-advanced Stage that perforated within 1 month of the diagnosis made by [the second doctor]. Had the patient been diagnosed with rectal cancer in April or May of 2019, the patient would have initiated treatment and would not have perforated.”
The defendants moved to dismiss the lawsuit for failure to timely serve an adequate report under Section 74.351 and objected to the report, asserting that Cusack’s opinion on causation was “conclusory and devoid of any explanation.”
The trial court also found the report inadequate and provided Martin with a 30-day extension, as permitted under Section 74.351(c). However, the judge did not issue a written order and Martin did not file the amendment to the report within 30 days, leading the defendants to again motion for dismissal in April 2022.
Over 10 months later, on March 20, 2023, Martin served Cusack’s amended report on the defendants – who then filed a third motion to dismiss, urging both that the amended report was untimely and that it was still inadequate. The trial court held a third hearing on the matter on May 19, 2023.
“During the hearing, the judge questioned Martin’s counsel regarding whether any request had been made for a written order on the 30-day extension. Counsel acknowledged that no specific request had been made either by written request or by calling court staff. But, counsel still insisted that the time for the 30-day extension had never begun running because no written order was ever signed,” Bourliot said.
“Counsel also maintained that the amended report could not be considered timely served until the 30-day period had begun; accordingly, counsel requested the court sign a written order so that the amended report could be properly served. At the conclusion of the hearing, Martin’s counsel again specifically requested that the judge sign a written order granting the extension, appellees’ counsel asserted that it was too late for that, and the judge again took everything under advisement. The judge subsequently signed an order granting the third motion to dismiss and dismissing Martin’s claims with prejudice.”
On appeal to the Fourteenth Court of Appeals, Martin and her counsel argued that the trial court’s view of the dispute surrounding the 30-day extension and ultimately, the case’s dismissal, was in error.
“Martin went months before attempting to obtain a ruling on her request for a 30-day extension. Although she made a request for an extension in her initial response to appellees’ objections and motion to dismiss – as an alternative, should the objections be sustained – she neither mentioned the need for, nor requested, a written ruling until six months after the first hearing when she filed her response to appellees’ second motion to dismiss. But, even then, she did not present the court with a proposed order or specifically bring the need for a written order to the court’s attention,” Bourliot stated.
“At the second hearing, Martin’s counsel acknowledged having made no attempt to obtain a ruling from the court in the intervening time period. Then, in the third hearing over a year later, counsel again acknowledged making no attempts to obtain a written order. Counsel, in fact, never obtained a written ruling from the trial court. Under the circumstances, we conclude that Martin failed to preserve her issues regarding the 30-day extension by making a timely and specific request or motion and obtaining a ruling thereon. Accordingly, we overrule Martin’s first and third issues.”
Furthermore, the appeals court also concurred with the trial court that the report submitted by Martin’s expert witness, Dr. Cusack, was inadequate and conclusory on the question of causation.
“Appellees asserted that while Cusack opined that if Marines had diagnosed Martin with rectal cancer sooner, her rectal mass would not have progressed to an advanced stage and perforated, he never explained what causes a tumor to perforate or how or why an earlier diagnosis would have prevented the perforation. ‘To the contrary,’ appellees assert, Cusack admitted that the cancer was subsequently diagnosed by another doctor before it perforated, but the diagnosis did not prevent the perforation. Appellees argue that Cusack’s opinion on causation failed to satisfy the statutory requirements because it consists of nothing more than a conclusory assertion – an ipse dixit, devoid of any explanation – that a delay in diagnosis caused the perforation, citing Jelinek. In the hearing on the objections, appellees additionally highlighted our opinion in Baylor College of Medicine v. Davies. Also, in the hearing on the objections, the trial judge reiterated that Cusack’s report did not explain what a perforation is or how or why earlier detection could have prevented it in this case. The judge also noted that although Cusack said that treatment could have occurred earlier if detection had occurred earlier, he did not specify what that treatment would have been, how it could have prevented the perforation, or on what basis Cusack concluded the treatment would have occurred in time to prevent perforation,” Bourliot said.
“Lastly, the judge observed that Cusack failed to explain either why the lack of detection and the perforation meant that more procedures were required and the treatment was more complicated or why the lack of detection resulted in permanent injuries. Appellees’ complaints and the trial court’s observations appear well-founded. Cusack’s opinions on causation read as conclusory statements. Although Cusack indicated the failure to detect the cancer resulted in continued growth of the tumor, he failed to explain what perforation was or how early detection could have prevented the perforation and the resulting complications; he simply asserts that it would have. Accordingly, the trial court did not abuse its discretion in sustaining the objections. We therefore overrule Martin’s second issue. Having overruled each of Martin’s issues, we affirm the trial court’s judgment.”
Fourteenth Court of Appeals for the State of Texas case 14-23-00418-CV
165th District Court, Harris County, Texas case 2021-19517
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com