David Zinsmeister & Marlene Zinsmeister v. Houston Methodist Hospital

Reversed and Remanded and Memorandum Majority and Dissenting
Opinions filed May 16, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00873-CV

DAVID ZINSMEISTER & MARLENE ZINSMEISTER, Appellants
V.

HOUSTON METHODIST HOSPITAL, Appellee

On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2020-58803

MEMORANDUM DISSENTING OPINION

I agree with the majority that the expert report in this case fails to identify
what different treatment a hospitalist or internal medicine specialist would have
provided to David if the hospital had made one available sooner. I part ways with
the majority, however, because this failure amounts to an analytical gap in the
report such that the report does not sufficiently explain causation. For this reason,
I respectfully dissent.
When the defendant’s alleged breach of the standard of care is the failure to
consult with or retain another physician to treat some preexisting condition, as
here, ordinarily the report should identify the course of treatment that the specialist
would have provided and how this treatment would have led to a different
outcome. See Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454, at *4
(Tex. App.—Austin Aug. 22, 2014, no pet.) (mem. op.) (report did not “explain
what treatment or therapy a specialist would have provided had [the patient] been
referred earlier or how such treatment or therapy would have prevented [the
patient]’s injuries”); Carney v. Holder, No. 12-13-00024-CV, 2014 WL 3939915,
at *7 (Tex. App.—Tyler Aug. 13, 2014, no pet.) (mem. op.) (report was inadequate
on issue of causation based on alleged breach of standard of care by failing to refer
patient to an oncologist when “the report does not identify the course of treatments
that Appellants or an oncologist should have provided”); Tenet Hosps. Ltd. v. Love,
347 S.W.3d 743, 755 (Tex. App.—El Paso 2011, no pet.) (report was inadequate
on issue of causation when it alleged the hospital’s failure to provide a specialist
because, by opining that the patient would not have died, the report “simply
expressed an inference without stating the underlying facts upon which that
inference was based”); Ngo v. Lewis, No. 09-10-00140-CV, 2010 WL 3518225, at
*3 (Tex. App.—Beaumont Sept. 9, 2010, no pet.) (mem. op.) (“Without
explanation about what treatment would have been offered had there been an
earlier neonatology consult, [the defendant] was left to speculate how an earlier
consult might have changed [the patient]’s treatment.”); Estorque v. Schafer, 302
S.W.3d 19, 28–29 (Tex. App.—Fort Worth 2009, no pet.) (report had “gaps by not
explaining how or why the physicians’ failure to consult a urologist or
gynecologist caused worsening or progression of [the plaintiff]’s listed
conditions”); Hardy v. Marsh, 170 S.W.3d 865, 870 (Tex. App.—Texarkana 2005,

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no pet.) (report failed to “state what additional procedures or treatment would have
been provided by the surgeon”).

Here, the report does not identify when the hospital should have assigned
another physician to David’s care nor explain what steps that physician should
have taken to address the complications from his surgery more quickly. Without
such information, the report fails to provide a fair summary of how an earlier
referral to a specialist would have prevented David’s injuries.

The trial court did not abuse its discretion by granting the motion to dismiss.
I would affirm the judgment.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant. (Poissant, J., majority).

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