Bidiwala v. Cockerell
In Bidiwala v. Cockerell, No. 05-08-01156-CV, 2009 WL 866380 (Tex. App.--Dallas Apr. 1, 2009, no pet.), Melanie Cockerell fell from a second-story balcony and injured her wrist, ankle, and back.
She was transported to a medical center where drug testing showed alcohol and cocaine in her system. Id.
Melanie was admitted to intensive care with plans for a lumbar fusion in about a week, but over the next two and one-half days, she suffered an undiagnosed pulmonary edema that ultimately led to a drop in blood pressure and cardiac arrest and death. Id.
In his report, the plaintiff's expert relied in part on the affidavit of Susan Cockerell, Melanie's mother.
The expert opined that the standard of care for Dr. Bidiwala, a neurosurgeon who consulted on Melanie's injuries and had planned to perform the lumbar fusion, included the following: "'Statements made by the patient regarding difficulty breathing should be reported and or charted and brought to the attention of the appropriate physician.'"
The expert report further stated:
"If Dr. Bidiwala was present when the patient stated that she could not breathe or was having difficulty breathing, as set out in the affidavit of Susan Cockerell, then Dr. Bidiwala breached the standard of care by not reporting those statements to the attending physicians and by not taking actions to assure that appropriate interventions were begun. Further, there is no evidence in the records that Dr. Bidiwala ever charted those statements of the patient or otherwise reported those statements. Nor is there any evidence that Dr. Bidiwala took any steps to make sure that any interventions including diagnostic tests or other therapeutic measures were begun." Id.
Dr. Bidiwala argued that the only relevant inquiry was whether Dr. Bidiwala heard any statement from Melanie; that the report, on its face, did not indicate that Dr. Bidiwala actually heard the statement; and "the contingent nature of the opinion on the breach of the standard of care" rendered the causation opinions conclusory and insufficient. Id.
Dr. Bidiwala further argued that the trial court made prohibited inferences of whether or not a statement made by Melanie was actually heard. Id.
After noting that these precise arguments were not made in the trial court, the court addressed Dr. Bidiwala's complaints and affirmed the trial court's order denying his motion to dismiss.
The court concluded that the trial court did not make any inferences in reading the report.
Further, the court noted that the expert, who was not present when the statement regarding breathing was made and therefore could not state as a fact that Dr. Bidiwala was present or heard the statement, "conditioned her opinion on the breach of the standard of care based on facts contained in an affidavit by Susan Cockerell." Id.
Concluding that the expert's reliance on the mother's affidavit did not render the expert's opinions conclusory, the court explained:
"The only inference made was by the expert, who necessarily inferred that if Dr. Bidiwala was present, he heard the statement. Whether Dr. Bidiwala was actually present and actually heard the statements by Melanie is a fact that will have to be litigated later. Here, the report informs the defendant of the specific conduct called into question--failing to report Melanie's statement that she could not breach--and links that breach of the standard of care to causation." Id.