                             NUMBER 13-06-053-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MIGUEL HERNANDEZ, M.D.,                                                    Appellant,

                                          v.

JULIOUS EBROM,                                                              Appellee.


                  On appeal from the 389th District Court
                        of Hidalgo County, Texas.


              MEMORANDUM OPINION ON REMAND

        Before Chief Justice Valdez and Justices Yañez and Vela
           Memorandum Opinion On Remand by Justice Vela

      This is an appeal from the denial of a motion to dismiss filed by appellant, Miguel

Hernandez, M.D., appellant, in a medical malpractice action brought by appellee, Julious

Ebrom. On appeal, Dr. Hernandez asserts that the trial court abused its discretion in

denying his motion because Ebrom’s expert report failed to comply with the requirements
of section 74.351 of the Texas Civil Practice and Remedies Code. See TEX . CIV. PRAC . &

REM . CODE ANN . § 74.351 (Vernon Supp. 2009). We reverse and remand.

                                      I. BACKGROUND

       Ebrom filed suit against two defendants, Dr. Hernandez and McAllen Bone & Joint

Clinic, alleging medical malpractice. He claimed that on August 2, 2002, Dr. Hernandez

performed arthroscopy with a partial medial menisectomy and valgus proximal tibial

osteotomy with bone allograft to his right knee, which included a plate with two cancellous

screws and two cortical screws. On Ebrom’s February 2, 2003 follow-up visit to Dr.

Hernandez, the doctor noted that the osteotomy was not working out, and that Ebrom

would need additional surgery. Ebrom sought corrective surgery from another physician

and later filed suit against the two defendants. Ebrom urged that the defendants were

negligent in failing to provide: (1) appropriate pre-operative planning; (2) intra-operative

assessment; (3) exacting operative techniques; and (4) appropriate post-operative care.

       Ebrom provided a letter submitted by Uwe Pontius, M.D., Ph.D., as his expert report.

The report was originally attached to Ebrom’s responses to requests for disclosure. Dr.

Hernandez filed a motion to dismiss, alleging that Ebrom failed to timely file a proper expert

report. On January 19, 2005, Ebrom notified the defendants that he intended to rely upon

the letter that was filed in response to the requests for disclosure as his required statutory

expert report.

       McAllen Bone & Joint Clinic and Dr. Hernandez later filed an amended motion to

dismiss, stating that the expert report did not identify either defendant by name and was

conclusory with respect to causation. The trial court granted the Clinic’s motion, but denied

Dr. Hernandez’s motion to dismiss. Thereafter, the trial court entered an agreed order of

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nonsuit as to Dr. Hernandez who then filed a notice of appeal. This Court issued a

memorandum opinion dismissing the appeal as moot. The supreme court reversed this

Court’s opinion and remanded the case to this Court for a determination on the merits.1

Even though Ebrom has nonsuited his claims against Dr. Hernandez, we are required to

reach the merits of Dr. Hernandez’s motion to dismiss because Dr. Hernandez has sought

attorney’s fees pursuant to section 74.351(b)(1), which he is only entitled to if Ebrom’s

report did not comply with the statutory requirements. See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351(b)(1) (Vernon Supp. 2009).

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

       The standard of review of a trial court's order either dismissing or refusing to dismiss

a medical malpractice claim for failure to comply with the expert report provisions is abuse

of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Am. Transitional Care

Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). An abuse of discretion

occurs when a trial court acts arbitrarily or unreasonably and “without reference to any

guiding rules or principles.” Walker, 111 S.W.3d at 62. A clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion. Baylor Univ. Med.

Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.–Dallas 2007, pet. denied).

       In our review of an expert report, we are limited to the report’s contents, contained

within the four corners of the report, in determining whether the report manifests a good

faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d

at 878; see TEX . CIV . PRAC . & REM . CODE ANN . § 74.351(l) (requiring that the trial court



       1
           Hernandez v. Ebrom, 289 S.W .3d 316 (Tex. 2008).

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“grant a motion challenging the adequacy of the expert report only if appears to the court,

after hearing, that the report does not represent an objective good faith effort to comply”

with the statutory definition). The report “need not marshal all the plaintiff's proof.”

Palacios, 46 S.W.3d at 878. If the expert report puts the defendant on notice of the

specific conduct complained of and provides the trial court a basis on which to conclude

that the claims have merit, the report represents a good-faith effort to comply with the

statute.

       An expert report is a written report by an expert that provides a fair summary of the

expert's opinions regarding applicable standards of care, the manner in which the care

rendered failed to meet the standards, and the causal relationship between that failure and

the injury, harm, or damages claimed. TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(r)(6).

The expert report must present the causal relationship between the health care provider’s

failure and the injury, harm, or damages claimed. Id. Causation is established when “the

negligent act or omission is shown to be a substantial factor in bringing about the harm and

without which the harm would not have occurred.” Kramer v. Lewisville Mem'l Hosp., 858

S.W.2d 397, 400 (Tex. 1993).

       What is relevant for purposes of the expert report is that the report specifically

identify the person whose conduct the plaintiff is calling into question and show how that

person's conduct constituted negligence. Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d

877, 879 (Tex. App.–Dallas 2006, no pet.). When a defendant is not identified in some

manner within the four corners of the report, the report is deficient as to that defendant.

Rivenes v. Holden, 257 S.W.3d 332, 338 (Tex. App.–Houston [14th Dist.] 2008, pet.



                                             4
denied). When a plaintiff sues more than one defendant, the expert report must set forth

the standard of care for each defendant and explain the causal relationship between each

defendant's individual acts and the injury, i.e., “[c]ollective assertions of negligence against

various defendants are inadequate.” Taylor v. Christus Spohn Health Sys. Corp., 169

S.W.3d 241, 244 (Tex. App.–Corpus Christi 2004, no pet.); see CHCA Mainland L.P. v.

Burkhalter, 227 S.W.3d 221, 227 (Tex. App.–Houston [1st Dist.] 2007, no pet.).

       An opinion based upon one assumption or conclusion built upon another is also not

sufficient. Hagedorn v. Tisdale, 73 S.W.3d 341, 351 (Tex. App.–Amarillo 2002, no pet.).

A report should explain how the defendant's action or inaction caused injury. Bowie Mem'l

Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). A conclusory report does not meet the

statutory test because it does not satisfy Palacios. Id. A court may not fill in gaps in a

report by drawing inferences or guessing what the expert meant or intended. Austin Heart,

P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.–Austin 2007, no pet.). Furthermore,

causation may not be inferred. Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.–El

Paso 2008, no pet.).

                                    III. ANALYSIS

A. Waiver Issue

       Ebrom argues for the first time in this appeal on remand that Dr. Hernandez waived

his objections to any alleged deficiencies in the expert report because he filed his expert

report on November 23, 2004, and defendants did not file their motion to dismiss until

January 12, 2005, a date more than twenty-one days after service of the expert report.




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TEX . CIV. PRAC . & REM . CODE ANN . § 74.341(a).2 It is undisputed that Dr. Hernandez did

not file objections within twenty-one days of receiving the letter Ebrom claimed as his

expert report. However, Dr. Hernandez has consistently argued, from the original dismissal

hearing, until now that he never received a document that was designated an expert report

under chapter 74. Counsel for Dr. Hernandez stated that Ebrom designated a trial expert

and subsequently indicated that it was the trial expert’s report was filed pursuant to section

74.351. Ebrom argued that Dr. Pontius’s letter was his statutory report.

        Counsel for Ebrom did not argue or object previously that Dr. Hernandez waived any

deficiencies to the report or its contents by not objecting to Dr. Pontius’s letter report within

twenty-one days. In essence, Ebrom has waited five years to raise his complaint that Dr.

Hernandez waived his objections to the deficiencies in the expert report pursuant to section

74.351(a). We do not decide, here, whether Dr. Hernandez should have objected within

twenty-one days because Ebroms’s objection comes too late. Ebrom also suggests that

the trial court might have denied Dr. Hernandez’s motion to dismiss because it took into

consideration Dr. Hernandez’s failure to comply with the twenty-one day deadline for filing

objections. However, it is highly unlikely that the trial court denied Dr. Hernandez’s motion

to dismiss for that reason because it granted McAllen Bone & Joint Clinic’s motion to

dismiss. It would be inconsistent for the trial court to grant McAllen Bone & Joint Clinic’s

motion to dismiss and deny Dr. Hernandez’s motion for failure to object to the twenty-one

day deadline.



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          “Each defendant physician or health care provider whose conduct is im plicated in a report m ust file
and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served,
failing which all objections are waived.” T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(a).

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       Dr. Hernandez was not required to object within twenty-one days if no report had

been filed. He has continuously taken that position since the hearing on the motion to

dismiss on July 5, 2005. Because Ebrom did not object to Dr. Hernandez’s untimely

objections in the trial court at the time the court ruled on the sufficiency of the reports, and

because Ebrom did not argue waiver in the first appeal or the appeal to the supreme court,

we will not consider it now. The objection comes too late and is waived. See Hansen v.

Starr, 123 S.W.3d 13,18 (Tex. App.–Dallas 2003, pet. denied) (stating that in reviewing a

trial court’s judgment, the appellate court can only consider what was before the trial court

at the time; waiver was not asserted in plaintiff’s response to the motion to dismiss); see

also San Jacinto Methodist Hosp. v. Carr, No. 01-07-00655, 2008 WL 2186473, at *3 (Tex.

App.–Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.) (same).

B. ADEQUACY OF THE REPORT

       Dr. Hernandez urges that the report does not sufficiently identify him because he

is not named in the report. Ebrom argues that Dr. Hernandez is the only physician named

in his pleadings, so, presumably all criticisms are about him, and it is unnecessary to name

him. He urges us to look outside the four corners of the report to determine its adequacy.

The entire report consists of two short paragraphs, as follows:

       I am a board certified orthopaedic surgeon practicing in San Antonio, Texas.
       I have previously performed and continue to perform valgus opening wedge
       osteotomy of the tibia using Arthrex opening wedge ostcotomy system.

       I have reviewed the records from the above case. The standard of care in
       the treatment of medial knee arthritis with the Arthrex opening wedge
       osteotomy system is to use a trocortical pelvic bone graft to provide sufficient
       strength and stability to allow bone healing in the open wedge position. In
       review of this case the use of an insufficient bone graft called the Cloward
       Plug, which is weaker bicortical iliac crest bone graft rather than the


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       applicable standard which is tricortical iliac crest bone graft, has breached
       the standard of care. The patient’s morbid obesity combined with an
       insufficient bone graft in reasonable medical opinion is the cause of his
       injury. The injury is collapse of the tibia osteotomy site and thus failure to
       heal in the corrected position.

       A plaintiff’s allegation that a physician is negligent is not a substitute for the

requirement that an expert report be supplied demonstrating that the expert is of the same

opinion. Here, there were two defendants named in Ebrom’s pleadings—Dr. Hernandez

and McAllen Bone & Joint Clinic. If a plaintiff sues more than one defendant, the expert

report must set forth the standard of care for each defendant and explain the causal

relationship between each defendant's individual acts and the injury. Taylor, 169 S.W.3d

at 244. Here, the report did not name either defendant. It does not state who performed

the surgery. It never states what Dr. Hernandez did or failed to do that caused Ebrom’s

injuries. While the case name is mentioned in the report,3 the report never mentions either

defendant in the body of the report and is, therefore, insufficient. Baylor Univ. Med. Ctr.

v. Biggs, 237 S.W.3d at 919 (determining that the trial court abused its discretion in

denying hospital’s motion to dismiss because expert reports did not refer to hospital by

name in their reports other than to say they reviewed hospital records); Gray v. CHCA

Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.–Houston [1st Dist.] 2006, no pet.) (stating

that expert report must provide specific information about what each defendant would have

done differently); Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex. App.–San Antonio

2006, no pet.) (noting that although plaintiff’s allegations focus on a single incident, the

statute nevertheless requires that an expert report “explain how the care rendered by the


       3
         The report states “RE Cause No. C-1292-04-H, Julious Ebrom v. Miguel Hernandez, et al; pending
in the 389th Judicial District Court, Hidalgo County, Texas”.

                                                  8
physician failed to meet the applicable standard of care and the causal relationship

between the failure and the injury suffered by the claimant”).

       Dr. Hernandez also urges that the report was inadequate because it is insufficient

with respect to causation. While the report states the bone graft used was insufficient, it

does not state that it was Dr. Hernandez who made the decision to use a bicortical, rather

than tricortical, bone graft. A report must provide “specific information about what the

defendant should have done differently.” Palacios, 46 S.W.3d at 880. The report does not

state why a bicortical graft is improper or why its use is below the standard of care. The

purpose of the expert report requirement is to inform the defendant health care provider

of the specific conduct called into question and provide a basis for the trial court to

conclude that the plaintiff’s claims have merit. The report merely suggests that the wrong

graft was used. It does not say why or give any specifics regarding how the bone graft that

was used caused the damages. Although a plaintiff need not marshal all of its evidence

through the preliminary statutory reports, more is required than was set forth in Dr.

Pontious’s conclusory report in this case. Because the report did not name Dr. Hernandez

and was conclusory with respect to causation, the trial court should have granted Dr.

Hernandez’s motion for dismiss. We sustain appellant’s issue.

                              IV. REMAND TO CURE DEFECTS

       Ebrom urges in his brief that this Court should remand the case to the trial court for

further consideration to cure the defects in the report because we have determined that his

report was deficient. This case was appealed to this Court after the parties had agreed to

nonsuit Ebrom’s claims against Dr. Hernandez. Ordinarily, when a court of appeals rules

a report deficient, one thirty-day extension to cure the report may be granted by the trial

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court upon remand. Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex. 2006); Fulp v.

Miller, 286 S.W.3d 501, 509 (Tex. App.–Corpus Christi 2009, no pet.) (op. on rehearing).

In Fulp, this Court held that because the plaintiff had nonsuited his claims against the

physician, the plaintiff was no longer a party and it would be impossible for him to cure the

deficient report. Fulp, 286 S.W.3d at 509. However, the filing of a nonsuit does not

extinguish a defendant’s motion for sanctions. Villafani v. Trejo, 252 S.W.3d 466, 470

(Tex. 2008); Fulp, 268 S.W.3d at 509. In his motion to dismiss, Dr. Hernandez requested

dismissal of Ebrom’s lawsuit and costs and attorney’s fees. Fulp, 286 S.W.3d at 510.

Therefore, we remand to the trial court to dismiss Ebrom’s claims with prejudice and to

determine reasonable attorney’s fees.

                                      V. CONCLUSION

       We reverse the order of the trial court denying Dr. Hernandez’s motion to dismiss

and remand to the trial court to dismiss Ebrom’s case against Dr. Hernandez with prejudice

and to assess reasonable attorney’s fees.




                                                  Rose Vela
                                                  Justice

Delivered and filed the 6th
day of May, 2010.




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