                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-401-CV


ANGELO L. OTERO, M.D.                                                   APPELLANT

                                          V.

MARY RICHARDSON                                                           APPELLEE

                                      ------------

         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                                     OPINION

                                      ------------

                 I. INTRODUCTION AND P ROCEDURAL B ACKGROUND

      This is the second interlocutory, expert-report appeal filed in this litigation.

Appellee Mary Richardson filed a health care liability claim against Daniel L. Foster,

D.O. and Appellant Angelo L. Otero, M.D. Richardson timely filed and served the

expert report and curriculum vitae of Bryan S. Drazner, M.D. Both Dr. Otero and Dr.

Foster filed motions to dismiss pursuant to chapter 74 of the civil practice and

remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2005).

The trial court sustained some of Otero’s objections to the report relating to knee
surgery performed by Dr. Otero, granted Richardson a thirty-day extension of time

to allow her to cure these defects in Dr. Drazner’s report as to Dr. Otero, and did not

rule on Dr. Otero’s motion to dismiss. The trial court denied Dr. Foster’s motion to

dismiss. Both Dr. Otero and Dr. Foster perfected an appeal.

      W e affirmed in part and reversed in part the trial court’s denial of Dr. Foster’s

motion to dismiss. See Foster v. Richardson, 303 S.W .3d 833, 845–46 (Tex.

App.—Fort W orth 2009, no pet.).       W e dismissed, on Dr. Otero’s motion, his

attempted appeal from the trial court’s order granting Richardson a thirty-day

extension of time to file an amended report concerning the sustained objections

relating to knee surgery performed by Dr. Otero.

      After Dr. Otero’s appeal was dismissed, Richardson did not file an amended

report in the trial court; she decided to proceed against Dr. Otero only on her claims

on which Dr. Otero’s objections had been overruled. Thirty days expired, and Dr.

Otero filed a second motion to dismiss in the trial court. The trial court conducted

a hearing and granted Dr. Otero’s motion to dismiss in part, ruling,

      This Court had previously sustained Defendant Angelo L. Otero, M.D.’s
      Objections relating to knee surgery performed, including his objections
      to qualifications for Dr. Drazner to opine on same in the Report of Byran
      S. Drazner, M.D. This Court finds that Plaintiff was given an
      opportunity to cure the deficiencies as related to these objections and
      failed to do so. Accordingly, Defendant Angelo L. Otero, M.D.’s Second
      Motion to Dismiss is GRANTED IN PART as follows all of Plaintiff’s
      claims related to the performance of knee surgery are hereby
      DISMISSED W ITH PREJUDICE.




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Dr. Otero perfected this appeal, challenging the trial court’s failure to dismiss the

entirety of Richardson’s claims against him. In his sole issue on appeal, Dr. Otero

queries, “Did the trial court abuse its discretion in overruling [Dr.] Otero’s objections

to the report of Bryan Drazner, M.D. regarding the allegation of failure to properly

diagnose and treat a fractured leg, and err in denying in part [Dr.] Otero’s Motion to

Dismiss?”

                              II. F ACTUAL B ACKGROUND

      The following is the factual background as set forth in our prior opinion:

               Appellee Mary Richardson injured her left leg while working for
      an airline in December 2006. Hospital personnel immobilized her knee,
      initially told her that she had sustained a knee sprain, and instructed
      her to see her primary physician for treatment. Richardson’s primary
      physician referred her to Dr. Angelo Otero for an orthopedic
      consultation. On January 22, 2007, Dr. Otero diagnosed Richardson
      with tears of her anterior cruciate ligament (ACL) and lateral meniscus
      in her left knee. On February 15, Dr. Otero surgically reconstructed
      that knee; he then released her for light duty at work on February 26
      and for full duty on May 14.

             On June 21, because she was still experiencing pain in her leg,
      Richardson saw Dr. Foster, who diagnosed her as having complex
      regional pain syndrome in her left leg and recommended that she
      participate in physical therapy. However, on July 27, Richardson saw
      an orthopedic surgeon whose diagnostic tests revealed that Richardson
      had a partially-healed ankle fracture. To treat the fracture, the surgeon
      had to rebreak Richardson’s ankle and insert metal hardware into it.
      Richardson asserts that her leg is disfigured and that her ankle will
      never function normally because of Dr. Otero’s and Dr. Foster’s failures
      to timely diagnose and treat the fracture.

Foster, 303 S.W .3d at 836.




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                               III. S TANDARD OF R EVIEW

       W e likewise utilize the same standard of review as that set forth in our prior

opinion.

               W e review a trial court’s denial of a motion to dismiss under
       section 74.351 for an abuse of discretion. See Am. Transitional Care
       Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d 873, 875 (Tex. 2001); Collini
       v. Pustejovsky, 280 S.W .3d 456, 461 (Tex. App.—Fort W orth 2009, no
       pet.) (op. on remand); Moore v. Gatica, 269 S.W .3d 134, 139 (Tex.
       App.—Fort W orth 2008, pet. denied) (op. on remand). W e also review
       a trial court’s decision on whether a physician is qualified to offer an
       expert opinion in a health care liability claim under an abuse of
       discretion standard. Collini, 280 S.W .3d at 461; Moore, 269 S.W .3d at
       139.

              To determine whether a trial court abused its discretion, we must
       decide whether the trial court acted without reference to any guiding
       rules or principles; in other words, we must decide whether the act was
       arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701
       S.W .2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986);
       see Collini, 280 S.W .3d at 461. Merely because a trial court may
       decide a matter within its discretion in a different manner than an
       appellate court would in a similar circumstance does not demonstrate
       that an abuse of discretion has occurred. Downer, 701 S.W .2d at 242;
       Collini, 280 S.W .3d at 461.

Foster, 303 S.W .3d at 837.

               IV. T HE S TATUTORY R EQUIREMENTS OF E XPERT R EPORTS

       W e recite the statutory requirements of expert reports as set forth in our pior

opinion in this litigation.

               A plaintiff must serve an expert report that addresses liability and
       causation on each defendant no later than the 120th day after the
       plaintiff files a health care liability claim. Tex. Civ. Prac. & Rem. Code
       Ann. § 74.351(a), (j). If an expert report has not been served on a
       defendant within the 120-day period, then on the motion of the affected


                                            4
      defendant, the trial court must dismiss the claim with prejudice and
      award the defendant reasonable attorney’s fees and costs. Id.
      § 74.351(b). A report “has not been served” under the statute when it
      has physically been served but a court finds it deficient. See id.
      § 74.351(c); Leland v. Brandal, 257 S.W .3d 204, 207 (Tex. 2008);
      Lewis, 253 S.W .3d at 207–08.

             A report is deficient (therefore subjecting a claim to dismissal)
      when it “does not represent an objective good faith effort to comply with
      the [statute’s] definition of an expert report.” Tex. Civ. Prac. & Rem.
      Code Ann. § 74.351(l); Collini, 280 S.W .3d at 461–62. W hile the expert
      report “need not marshal all the plaintiff's proof,” it must provide a fair
      summary of the expert's opinions as to the applicable standards of
      care, the manner in which the care rendered by the physician 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); Palacios, 46 S.W .3d at 878; Collini, 280
      S.W .3d at 462.

               To qualify as a good faith effort, the report must “discuss the
      standard of care, breach, and causation with sufficient specificity to
      inform the defendant of the conduct the plaintiff has called into question
      and to provide a basis for the trial court to conclude that the claims
      have merit.” Palacios, 46 S.W .3d at 875; Benish v. Grottie, 281 S.W .3d
      184, 194 (Tex. App.—Fort W orth 2009, pet. denied). A report does not
      fulfill this requirement if it merely states the expert’s conclusions or if it
      omits any of the statutory requirements. Palacios, 46 S.W .3d at 879;
      Benish, 281 S.W .3d at 194.

Foster, 303 S.W .3d at 837.

                 V. T HE F ACTS ALLEGED IN D R. D RAZNER’S R EPORT

      Richardson did not file an amended report to cure the deficiencies in Dr.

Drazner’s report concerning the knee surgery performed by Dr. Otero; Richardson

does not challenge the trial court’s dismissal of her claims against Dr. Otero based

on or relating to her knee surgery.       Thus, the issue before us is whether Dr.



                                            5
Drazner’s report is sufficient to satisfy the statutory elements of an expert report

concerning Richardson’s claim that Dr. Otero failed to timely diagnose and treat her

ankle fracture.

      The report we review now for adequacy as to Dr. Otero, an orthopedic

surgeon, is the exact same report we previously reviewed for adequacy as to Dr.

Foster, also an orthopedic surgeon. According to his report, Dr. Drazner physically

evaluated Richardson on July 26, 2007, and he became concerned about aspects

of her prior care at that time. Richardson made it clear to Dr. Drazner “that she [had]

complained to Dr. Otero about pain and swelling in the left lower leg and ankle,

which far exceeded any minor knee discomfort and that her complaint went ignored

and unaddressed.” Dr. Otero failed to diagnose Richardson’s leg fracture and

instead performed knee surgery. The report continues,

      The Standard of Care Applicable to both Dr. Otero and Dr. Foster:

            It is the standard of care for a physician who is examining a
      patient’s leg injury to perform a thorough [orthopedic] examination in
      order to determine the nature and extent of the injury. It is also the
      standard of care when examining a leg injury, to perform full range of
      motion testing regarding the injured leg, including the knee, the ankle,
      and the foot, and to detail the findings of the examination. . . .

      Breach of Standard of Care:

              From their records, neither Dr. Otero nor Dr. Foster performed a
      thorough examination of Ms. Richardson’s left leg, including her ankle
      and foot. . . . W ithout a complete [orthopedic] examination, including
      full range of motion testing, and the obtainment of appropriate objective
      diagnostic tests on Ms. Richardson’s ankle and foot, an accurate
      diagnosis was not possible. Dr. Otero apparently assumed Ms.


                                          6
      Richardson’s injury was to her left knee because she had undergone
      left knee surgery approximately five years earlier. Dr. Otero’s
      assumption was not supported by his examination nor by objective
      diagnostic tests. Although Ms. Richardson may have sprained her
      knee, it was later discovered (not by Dr. Otero or Dr. Foster) that Ms.
      Richardson had fractured her left distal fibula.

      Results of Defendants’ Breach of the Standard of Care:

             . . . If Dr. Otero and Dr. Foster had performed a complete
      examination of Ms. Richardson’s left leg, including her tibula/fibula,
      ankle and foot, and/or if they had referred Ms. Richardson for a second
      opinion, while treating her conservatively to determine the true nature
      of her injury, an unnecessary knee surgery would not have been
      performed. Moreover, due to the physicians’ failure to correctly
      diagnose Ms. Richardson’s injury, her fracture went completely
      undetected for over seven months and the patient was subjected to a
      surgery for open reduction and initial fixation of the lateral mellolus, left
      pelvic iliac crest bone graft, a prolonged period of pain and requirement
      for exhaustive narcotic enalyens, usage of a bone growth stimulator
      and another surgery to remove painful surgical hardware, a prolonged
      period of disability, and . . . loss of hind foot motion, . . . as well as
      moderate chronic pain. As a result, it is my opinion that Ms.
      Richardson will suffer from impairments that could have been
      prevented had her injury been properly and timely diagnosed and
      treated before the fracture had healed incorrectly failed to heal, moved
      to non-union, and required further exhaustive care.[1]

                      VI. D R. O TERO’S APPELLATE C OMPLAINTS

                  A. Dr. Drazner’s Report Includes Adequate
                    Standard of Care and Breach Opinions

      Dr. Otero raises several arguments challenging the adequacy of Dr. Drazner’s

report “as to the allegation of failure to properly diagnose and treat a fractured leg.”




      1
      The portion of the report following the stricken phrase, “had healed correctly,”
was handwritten.

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Dr. Otero claims that “[t]here is no standard of care or alleged breach stated as to

[Dr.] Otero and the remaining allegation of failure to properly diagnose and treat a

fractured leg” and that Dr. Drazner’s report “fails to adequately state a standard of

care applicable to [Dr.] Otero or an alleged breach of such standard by [Dr.] Otero

with regard to the allegation of failure to properly diagnose and treat a fractured leg.”

      An expert report’s statements concerning the standard of care and breach

need only identify what care was expected and not given with such specificity that

inferences need not be indulged to discern them. Benish, 281 S.W .3d at 198. A

“fair summary” of the standard of care and how it was breached is all that is required.

Palacios, 46 S.W .3d at 880 (explaining that “a ‘fair summary’ is something less than

a full statement of the applicable standard of care and how it was breached”). Dr.

Drazner’s report, as quoted above, contains a specific section titled, “Standard of

Care Applicable to Dr. Otero,” and another section titled, “Breach of Standard of

Care.” These sections explain that the standard of care required Dr. Otero to

conduct a thorough examination when he examined Richardson “in order to

determine the nature and extent of the injury,” including “full range of motion testing

regarding the injured leg, including the knee, the ankle, and the foot, and to detail the

findings of the examination.”      The section on breach explains that Dr. Otero

breached the standard of care by not conducting the thorough examination dictated

by the standard of care. These allegations constitute a fair summary of the standard

of care applicable to Dr. Otero and how he breached that standard; the allegations


                                            8
are sufficient to identify the care that was expected but not given by Dr. Otero and

to permit the trial court to conclude that the claim has merit. See, e.g., Baylor Coll.

of Med. v. Pokluda, 283 S.W .3d 110, 121–23 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (rejecting argument that expert report failed to adequately set forth standard

of care and breach); Palafox v. Silvey, 247 S.W .3d 310, 318–19 (Tex. App.—El

Paso 2007, no pet.) (same); Patel v. Williams, 237 S.W .3d 901, 905 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (same). The trial court did not abuse its

discretion by determining that Dr. Drazner’s report adequately set forth the standard

of care applicable to Dr. Otero in his examination of Richardson’s injured leg and

adequately set forth how Dr. Otero breached that standard.

  B. Dr. Drazner’s Report Not Inadequate for Including Standard of Care,
       Breach, and Causation Opinions for Dr. Foster and Dr. Otero
             (Both Orthopedic Surgeons) in Same Sentences

      Next, Dr. Otero contends that Dr. Drazner’s report is inadequate because it

“fails to address the conduct of [Dr. Otero and Dr. Foster, both of whom are

orthopedic surgeons] individually and thus is conclusory” as to standard of care,

breach, and causation. Dr. Foster made this exact argument in his appeal. See

Foster, 303 S.W .3d at 843 (holding that “Dr. Drazner’s report is not deficient merely

because it contains some collective statements regarding actions that both [Dr.

Foster and Dr. Otero] should have taken while they independently cared for

Richardson”). Dr. Otero argues that our holding above does not apply to him

because, unlike Dr. Drazner’s report concerning Dr. Foster, Dr. Drazner’s report


                                          9
concerning him does not contain “any independent explanation as to why [Dr.] Otero

should have performed a range of motion test.” But Dr. Drazner’s report does

explain why Dr. Otero should have performed a range of motion test; he explains

that the standard of care when a physician examines a patient for a leg injury is to

perform a thorough orthopedic examination and to perform full range of motion

testing regarding the injured leg, including the knee, ankle, and foot, and he explains

that Dr. Otero is a physician who examined Richardson for a leg injury but did not

perform full range of motion testing. For this reason, as well as because both Dr.

Otero and Dr. Foster are orthopedic surgeons, and for the reasons set forth in our

prior opinion, we hold that the trial court did not abuse its discretion by failing to find

Dr. Drazner’s report inadequate or conclusory on the statutory elements of standard

of care, breach, and causation simply because the report contains some collective

statements concerning Dr. Foster and Dr. Otero regarding standard of care, breach,

and causation. See id.

       C. Dr. Drazner’s Report Includes Adequate Causation Opinions

       Next, Dr. Otero contends that Dr. Drazner’s report “fails to explain the basis

of his causation opinions and such opinions are factually unsupported.” Dr. Otero

alleges that Dr. Drazner’s report “never explains how or why Richardson’s injuries

resulted from the alleged negligent acts.” But Dr. Drazner’s report expressly states

under the heading, “Results of Defendants’ Breach of the Standard of Care,” that




                                            10
      [b]y failing to perform a complete examination of Ms. Richardson’s left
      leg which was injured, both Dr. Otero and Dr. Foster failed to diagnose
      Ms. Richardson’s left fibula fracture. . . . [D]ue to the physicians’ failure
      to correctly diagnose Ms. Richardson’s injury, her fracture went
      completely undetected for over seven months and the patient was
      subjected to a surgery for open reduction and initial fixation of the
      lateral mellolus, left pelvic iliac crest bone graft, a prolonged period of
      pain and requirement for exhaustive narcotic enalyens, usage of a bone
      growth stimulator and another surgery to remove painful surgical
      hardware, a prolonged period of disability, and . . . loss of hind foot
      motion . . . and chronic pain.

These opinions by Dr. Drazner are amply sufficient to satisfy the statutory causation

element required to be included in expert reports. See, e.g., In re Barker, 110

S.W .3d 486, 489–91 (Tex. App.—Amarillo 2003, orig. proceeding) (holding expert

report adequately addressed causal connection between defendant’s delay in

diagnosis and plaintiff’s damages), mand. denied, 141 S.W .3d 144 (Tex. 2004); see

also Sides v. Guevara, 247 S.W .3d 293, 301–02 (Tex. App.—El Paso 2007, no pet.).

            D. Dr. Drazner is Qualified to Offer Opinions in Report

      Finally, Dr. Otero claims that Dr. Drazner’s report fails to show that he is

qualified as an expert on the standard of care and causation applicable to

Richardson’s health care liability claim.         The determination of a doctor’s

qualifications to provide an expert report must be made on the basis of the contents

of the report and his curriculum vitae. Bowie Mem’l Hosp. v. Wright, 79 S.W .3d 48,

52 (Tex. 2002). W ith respect to a person giving opinion testimony regarding whether

a physician departed from accepted standards of medical care, an expert must (1)

be practicing medicine at the time of the testimony or at the time the claim arose;


                                           11
(2) have knowledge of accepted standards of medical care for the diagnosis, care,

or treatment of the condition involved in the claim; and (3) be qualified on the basis

of training or experience to offer an expert opinion regarding the standard of care.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon

2005).   A physician is “qualified on the basis of training or experience” if the

physician is board certified or has other substantial training or experience in an area

of medical practice relevant to the claim and is actively practicing medicine in

rendering medical care services relevant to the claim. Id. § 74.401(c).

      An expert is qualified to give opinion testimony about the causal relationship

between the injury claimed and the alleged departure from the applicable standard

of care if he is “otherwise qualified to render opinions on such causal relationship

under the Texas Rules of Evidence.” Id. § 74.351(r)(5)(C), § 74.403(a) (Vernon

2005). The Texas Rules of Evidence provide that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion or

otherwise.” Tex. R. Evid. 702; see also Roberts v. Williamson, 111 S.W .3d 113,

121–22 (Tex. 2003) (recognizing that while medical license does not automatically

qualify holder to testify as expert on every medical question, test is not whether

expert practices in a particular field of medicine but rather whether offering party has

established that expert has knowledge, skill, experience, training, or education


                                          12
regarding specific issue before court that would qualify expert to give opinion on

particular subject, and holding that based on qualifications and experience,

pediatrician was qualified to opine on cause and effect of neurological injuries).

      W e review a trial court’s determination that an expert is qualified under an

abuse of discretion standard. Benish, 281 S.W .3d at 198–99; Mem’l Hermann

Healthcare Sys. v. Burrell, 230 S.W .3d 755, 757 (Tex. App.—Houston [14th Dist.]

2007, no pet.) (citing Broders v. Heise, 924 S.W .2d 148, 151–52 (Tex. 1996)).

      Concerning Dr. Drazner’s qualifications, his report states, in part:

              I have been a practicing physician in Texas for 18 years. My
      practice specialty is Physical Medicine and Rehabilitation with a
      secondary speciality in Occupational Medicine. My practice consists of
      examining, evaluating, diagnosing and treating injured patients,
      primarily those who have suffered ortho[pedic] injuries. Consequently,
      I have treated approximately 20,000 patients with ortho[pedic] injuries
      and performed several hundred thousand ortho[pedic] examinations,
      and I am well familiar with the standard of care that must be followed
      by any physician who is examining a patient who has sustained an
      injury.

Dr. Drazner’s curriculum vitae indicates that he currently practices medicine in

Dallas, Texas specializing in Physical Medicine and Rehabilitation, and Pain

Management.

      Thus, Dr. Drazner’s report and curriculum vitae establish that he was

practicing medicine at the time Richardson was treated by Dr. Otero and at the time

he provided his report; that he possesses knowledge of accepted standards of

medical care for the diagnosis, care, or treatment of a person with a leg injury; and



                                         13
that based on his eighteen years of experience, he is qualified to offer an expert

opinion regarding the standard of care applicable to a physician examining a patient

with a leg injury. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(r)(5)(A), .401(a).

Thus, Dr. Drazner’s report and curriculum vitae establish that he met the statutory

requirements to be qualified to offer an opinion on the applicable standard of care

and its breach. See id. §§ 74.351(r)(5)(A), .401(a)(2)–(3). The trial court did not

abuse its discretion by finding Dr. Drazner qualified to do so.

       Dr. Drazner’s report and curriculum vitae also establish that he was qualified

to opine on the issue of causation because he is qualified to render such an opinion

under the Texas Rules of Evidence. See id. §§ 74.351(r)(5)(C), .403(a); Tex. R.

Evid. 702. Dr. Drazner is a medical doctor who practices physical medicine and

rehabilitation.    He has performed several hundred thousand orthopedic

examinations, and he has treated approximately 20,000 patients with orthopedic

injuries. These credentials and this experience, set forth within the four corners of

Dr. Drazner’s report and curriculum vitae, sufficiently establish that he is qualified to

render an opinion on causation in this case. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702; see, e.g., Mosely v. Mundine, 249

S.W .3d 775, 779–80 (Tex. App.—Dallas 2008, no pet.) (concluding that expert had

the knowledge, skill, experience, training, or education regarding specific emergency

room physician’s scope of practice and holding that expert was therefore qualified

to render an opinion on causation under section 74.351(r)(5)).


                                           14
      Dr. Otero does not point out any specific defect concerning Dr. Drazner’s

qualifications. Instead, he argues that “[i]t is difficult to assess what [Dr.] Drazner’s

qualifications are with respect to the remaining claim [that is, Richardson’s claim that

Dr. Otero failed to properly diagnose and treat her fractured leg] against [Dr.] Otero

because [Dr.] Drazner does not state a standard of care or breach by [Dr.] Otero on

which [Dr.] Drazner may be judged to be qualified.” W e have already addressed Dr.

Otero’s contention that Dr. Drazner’s report contains no standard of care or breach

opinions as to Dr. Otero. W e do not rehash that issue here. For the reasons set

forth above, the trial court did not abuse its discretion by concluding that Dr. Drazner

was qualified to render opinions on the standard of care, its breach, and on

causation concerning Dr. Otero’s alleged negligence in failing to properly diagnose

and treat Richardson’s leg fracture.

      Having addressed the arguments presented by Dr. Otero in connection with

his sole issue presented, we overrule Dr. Otero’s sole issue.

                                   VII. C ONCLUSION

      Having overruled Dr. Otero’s sole issue, we affirm the trial court’s order

denying in part Dr. Otero’s second motion to dismiss.



                                                      SUE W ALKER
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.

DELIVERED: September 30, 2010




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