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Davis v. Markey3/24/2005
Appellant Anthony Davis appeals from the dismissal of his medical malpractice claim against Appellees, Keith Markey, M.D. and Patrick Kelly, D.O. Davis alleges that Markey and Kelly were negligent in their treatment of his knee. After both physicians moved for dismissal on the ground that Davis's expert report failed to meet statutory requirements, the district court dismissed the cause. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 13.01 (Section 13.01). We affirm the judgment of the district court.
BACKGROUND
Davis injured his knee in December 2001 and underwent an anterior cruciate ligament reconstruction the following month. Complications arose, and Davis required additional surgeries by several physicians. Davis filed suit on May 28, 2003, alleging that Dr. Keith Markey and Dr. Patrick Kelly committed various acts of negligence while Davis was under their care. Specifically, Davis alleged that Markey failed to use sterile equipment while performing surgery on Davis's knee and that he worsened an infection by prescribing oral Cipro and Cortizone injections after signs of infection appeared. Davis alleged that Kelly delayed in culturing a specimen and in removing or remounting hardware in Davis's knee. He claimed that the negligence of these physicians resulted in "grievous bodily harm and other damages."
On November 13, 2003, pursuant to Section 13.01(d), Davis timely filed an expert report provided by a California physician, Dr. Gregory Bohart. Appellees did not object to the sufficiency of Davis's expert report until they both filed motions to dismiss in March 2004. Kelly's motion contended that Bohart's report failed to set forth the standard of care applicable to Kelly in his treatment of Davis, failed to state how Kelly's treatment fell below that standard of care, and failed to address causation. Markey claimed in his motion that Bohart's report failed to address causation.
After a hearing on the motions, the district court dismissed Davis's claims against both physicians, finding that Bohart's report failed to meet all three requirements of Section 13.01: the standard of care, the manner in which each physician failed to meet the standard, and the causal relationship between that failure and the injury claimed. The court awarded attorney's fees to Kelly in the amount of $14,351.50.
STANDARD OF REVIEW
We apply an abuse of discretion standard when reviewing all Section 13.01 rulings. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.---Houston [1st Dist.] 2003, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex. 1985). In reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for the trial court's judgment. Wright, 79 S.W.3d at 52.
Under Section 13.01(d), medical-malpractice plaintiffs were required to provide each defendant physician or health-care provider an expert report, with the expert's curriculum vitae, within 180 days of filing suit. Section 13.01(d); Palacios, 46 S.W.3d at 877. The expert report was required to provide a fair summary of the expert's opinions regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure
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