                            NUMBER 13-10-00532-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOSE L. VILLARREAL, D.D.S.,                                                  Appellant,

                                           v.

MARIANELA HERNANDEZ,                                                          Appellee.


               On appeal from the County Court at Law No. 5
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      In this interlocutory appeal, appellant Jose L. Villarreal, D.D.S., contends that the

trial court erred in denying his motion to dismiss the dental malpractice suit brought by

appellee Marianela Hernandez. Dr. Villarreal argues by a single issue that the suit

should have been dismissed because Hernandez failed to comply with the medical

expert report requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West
2011). We dismiss the appeal for want of jurisdiction.

                                              I. BACKGROUND

       In her original petition filed on February 23, 2010, Hernandez asserted that Dr.

Villarreal provided negligent dental care by ―[r]epresenting that a Root Canal [was]

necessary when it was not‖ and by ―[p]erforming a Root Canal that was not necessary.‖

On April 5, 2010, Hernandez served upon defense counsel two letters authored by Julio

C. de la Fuente, D.D.S., purporting to be expert medical reports. See id. The first letter

stated, in its entirety, as follows:

       Mrs. Marianela Hernandez was examined by me on September 17, 2009.
       At the time of examination, she was found to be missing several molars on
       upper and lower, [and to] have several amalgam fillings and recurrent
       caries[1] on premolars. She also has root canal treatments on #10 and 11
       with a post and build up on both and recurrent caries on both.

       Tooth #10 (maxillary left lateral) is fractured at the gumline and has no
       clinical crown remaining. The tooth has a short root and restoring it in this
       condition would cause the root to fracture and the tooth to fail.

       Tooth #11 (maxillary left canine) has recurrent caries on clinical crown and
       no visible periapical[2] lesion.

       Tooth #11 would need to have a core build up completed to remove any
       existing caries and a porcelain crown placed to restore tooth. Tooth #10
       would need to be removed and replaced with an implant, and later
       restored with a porcelain crown.

The second letter was exactly the same as the first, except that it also included the

following paragraph:

       Mrs. Hernandez explained that she did not have any root canal treatments
       on teeth #10 or 11 before she went to see Dr. Villarreal. She also
       explained that the root canal was needed on tooth #11 and Dr. Villarreal
       did it on the wrong tooth and did it on 10. He later did the root canal on

       1
           ―Caries‖ is defined as ―[t]he localized, gradual destruction of teeth by inorganic acids and
bacteria . . . .‖ IDA G. DOX, ET AL., ATTORNEY‘S ILLUSTRATED MEDICAL DICTIONARY C14 (1997).
       2
           ―Periapical‖ is defined as ―[a]round a dental root, including the alveolar bone.‖ Id. at P21.

                                                       2
        #11. Based on what the patient has explained and the clinical findings, it
        is my opinion that tooth #10 would not have any problems were it not for
        the root canal treatment that was mistakenly done on it.

        Dr. Villarreal subsequently objected to the purported reports and moved to

dismiss the case. Dr. Villarreal specifically argued that Dr. de la Fuente‘s letters do not

actually constitute ―reports‖ at all because they ―utterly ignore[d] the statutory

requirements of addressing the required standard of care of this Defendant, how the

‗expert‘ is knowledgeable factually in that standard of care, and . . . proximate cause.‖3

        The trial court found the reports insufficient, but denied Dr. Villarreal‘s motion to

dismiss and instead granted Hernandez a thirty-day extension of time to cure the

reports. See id. § 74.351(c). This interlocutory appeal followed. See id. § 51.014(a)(9)

(West 2008) (permitting appeal of interlocutory order denying all or part of a motion to

dismiss for failure to serve an expert report in a health care liability claim); Badiga v.

Lopez, 274 S.W.3d 681, 685 (Tex. 2009) (―A provider may pursue an interlocutory

appeal of the denial of a motion to dismiss when no expert report has been timely

served, whether or not the trial court grants an extension of time.‖ (Emphasis added.));

cf. Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007) (holding that, if a deficient

report is served and the trial court grants a thirty-day extension, that decision, even if

coupled with a denial of a motion to dismiss, is not subject to interlocutory appeal).

                                            II. DISCUSSION

A.      Standard of Review




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           Dr. Villarreal also argued in his motion to dismiss that Dr. de la Fuente‘s letters did not
constitute ―reports‖ because they did not ―indicate that [they are] report[s] generated to comply with the
statutory requirements of Chapter 74.351‖ and because they were not accompanied by Dr. de la Fuente‘s
curriculum vitae. However, he does not advance these assertions on appeal.

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      We review a trial court‘s order denying a motion to dismiss for failure to comply

with the expert report requirement under an abuse of discretion standard.            NCED

Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.);

Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied). A

trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or

without reference to any guiding rules or principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). However, a trial court has no discretion in

determining what the law is or in applying the law to the facts. Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916

(Tex. App.–Dallas 2007, pet. denied).

B.    Applicable Law

      Under chapter 74, a plaintiff asserting a health care liability claim must serve a

medical expert report upon each party's attorney no later than the 120th day after the

date the original petition was filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The

report must

      provide[] a fair summary of the expert‘s opinions as of the date of the
      report 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 and the injury,
      harm, or damages claimed.

Id. § 74.351(r)(6). Although a report need not marshal all of a claimant‘s proof, it must

include the expert‘s opinion on each of the elements identified in section 74.351. Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

      When a defendant files a motion challenging the adequacy of a report, the trial

court will grant the motion only if, after a hearing, it appears that the report does not



                                            4
represent an ―objective good faith effort to comply with the definition of an expert report

in Subsection (r)(6).‖ TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To constitute a

―good faith effort,‖ the report must provide enough information to (1) inform the

defendant of the specific conduct the plaintiff has called into question, and (2) provide a

basis for the trial court to conclude that the claims have merit. Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Palacios, 46 S.W.3d at 879.

       If an expert report has been served within the 120-day period but elements of the

report are found deficient, the court may grant one thirty-day extension to the claimant

in order to cure the deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). On the

other hand, if no expert report at all is filed within the 120-day period, no extension is

permitted, and the trial court must dismiss the claim against the defendant and award

reasonable attorney‘s fees. Id. § 74.351(b).

C.     Analysis

       On appeal, Dr. Villarreal argues that Dr. de la Fuente‘s letters, taken together,

constitute an ―‗absent report‘ because it wholly fails to address any of the elements

required to meet the definition of an ‗expert report.‘‖ According to Dr. Villarreal, because

―no report‖ was served, Hernandez was not entitled to a thirty-day extension of time to

cure any deficiencies. See id. § 74.351(c).

       As we recently noted in De La Garza v. Schruz, No. 13-10-00468-CV, 2011 Tex.

App. LEXIS 4238, at *9 (Tex. App.–Corpus Christi June 2, 2011, no pet. h.) (mem. op.),

the Texas Supreme Court has not yet squarely addressed this issue. However, several

recent cases presented similar fact patterns:

       In Ogletree v. Matthews, the defendant urologist argued that the plaintiff‘s
       expert reports were so deficient as to be ―nonexistent‖ because they were

                                              5
authored by nurses and a radiologist. 262 S.W.3d 316, 318 (Tex. 2007).
The Court noted that a ―deficient‖ report differs from an ―absent‖ report in
one ―important respect‖: when the former is served by a health care
liability plaintiff, the trial court retains its discretion to grant a thirty-day
extension to cure the report; whereas when the latter is served, no
extension is permitted. Id. In that case, the Court concluded that the
expert reports were ―deficient,‖ and not ―absent.‖ Id. at 321. In a
concurring opinion, Justice Willett observed that, in addition to ―deficient‖
and ―absent‖ reports, ―there exists a third, albeit rare, category: a
document so utterly lacking that, no matter how charitably viewed, it
simply cannot be deemed an ‗expert report‘ at all, even a deficient one.‖
Id. at 323 (Willett, J., concurring). Such a document

       may not purport to be a report at all, and its author may not
       have intended it as such. For example, it may (by its own
       terms) be provider correspondence or perhaps ―medical or
       hospital records or other documents‖ or other health-related
       paperwork that, while related to the patient‘s care and
       condition, neglects altogether to address the rudimentary
       elements of an expert report; indeed, it may never and
       nowhere accuse anyone of doing anything wrong. Such
       information certainly constitutes discoverable and highly
       relevant information in a lawsuit, but any claimant passing off
       such material as an expert report, and any court treating it as
       such, evinces a complete disregard for Chapter 74‘s
       unambiguous statutory criteria.

Id. (footnotes omitted).

        Several months after Ogletree, in Lewis v. Funderburk, 253 S.W.3d
204 (Tex. 2008), the supreme court enjoyed an ―actual sighting of this rare
bird.‖ Id. at 210 (Willett, J., concurring). In Lewis, the defendant doctor
moved to dismiss the plaintiff‘s case against him for failure to file an expert
report. Id. at 206. In response, the plaintiff pointed to a ―thank-you-for-
your-referral letter‖ in the medical records. Id. The trial court denied the
defendant‘s motion to dismiss and granted the plaintiff a thirty-day
extension, during which the plaintiff filed a second report. Id. The
defendant again moved to dismiss, the trial court again denied the motion,
and the defendant appealed. Id. at 206-07. The appellate court
dismissed the appeal for lack of jurisdiction, but the supreme court
reversed, noting that subsection 74.351(c) ―defines a timely but deficient
report as one that ‗has not been served,‘‖ and therefore, an interlocutory
appeal was permitted in that case under subsection 74.351(b). Id. at 207-
08; see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (permitting appeal of
interlocutory order dismissing case under subsection 74.351(b)); id. §
74.351(b) (requiring dismissal when report ―has not been served‖ within

                                       6
120 days). In another concurring opinion, Justice Willett argued that the
defendant in Lewis was entitled to appeal the trial court‘s initial denial of
his motion to dismiss for failure to file an expert report, because the initial
report was, in effect, no report at all. Lewis, 253 S.W.3d at 210 (Willett, J.,
concurring). ―This doctor-signed letter is no more a report than a doctor-
signed prescription or Christmas card would be.‖ Id. at 211. In contrast to
the report at issue in Ogletree, the initial report in Lewis ―totally omits the
required statutory elements, . . . makes no colorable attempt to
demonstrate liability,‖ and ―never once accuse[s] anyone of doing anything
wrong.‖ Id. at 211-12 (internal quotations omitted). Therefore, according
to Justice Willett, the trial court had no choice but to grant the defendant‘s
initial motion to dismiss. Id. at 212.

        Similarly, in In re Watkins, a health care liability plaintiff filed a
purported expert report that ―was merely a narrative of treatment, and
failed to address the standard of care, breach, or causation.‖ 279 S.W.3d
633, 633 (Tex. 2009) (orig. proceeding). After the trial court granted a
thirty-day extension, the plaintiff filed a new report, which the defendant
did not challenge. Id. at 633-34. On appeal and by a petition for writ of
mandamus, the defendant sought review of the trial court‘s granting of the
thirty-day extension. Id. at 634. In a majority opinion, this Court found
that, because the trial court implicitly found the report to be merely
deficient—and not so woefully inadequate as to constitute no report at
all—it did not abuse its discretion in granting the extension. Watkins v.
Jones, 192 S.W.3d 672, 675 (Tex. App.–Corpus Christi 2006, no pet.)
(combined appeal & orig. proceeding). Without determining whether the
report was absent or merely deficient, a majority of the supreme court
agreed that mandamus was unwarranted. In re Watkins, 279 S.W.3d at
634. The Court reasoned that ―[i]f no report was served, an interlocutory
appeal was available, so mandamus is unnecessary. If the report was
merely deficient, than an interlocutory appeal was prohibited, and granting
mandamus to review it would subvert the Legislature‘s limit on such
review.‖ Id. (footnotes omitted).

       In concurring with the judgment, Justices Johnson and Willett
opined that the purported expert report in Watkins was not, in fact, an
expert report at all, because it ―does not purport to have any relationship
to a health care liability or malpractice case.‖ Id. at 635 (Johnson, J.,
concurring); id. at 637 (Willett, J., concurring) (noting that the purported
expert report ―omits all three (four if you count the missing curriculum
vitae; five if you count the absence of any expert opinion)‖ statutory
requirements and stating that ―[t]his is no more an expert report than my
son‘s tricycle is a Harley‖). According to Justices Johnson and Willett,
because this case involved an absent report rather than a deficient report,
the defendant had the right to appeal the trial court‘s interlocutory order
denying dismissal. Id. at 635-36, 639-40; see Badiga, 274 S.W.3d at 685

                                      7
(―A provider may pursue an interlocutory appeal of the denial of a motion
to dismiss when no expert report has been timely served, whether or not
the trial court grants an extension of time.‖). Having found that the
defendant had an adequate remedy by appeal, Justices Johnson and
Willett concurred in the majority‘s judgment that mandamus was
inappropriate. In re Watkins, 279 S.W.3d at 636 (Johnson, J., concurring);
id. at 639-40 (Willett, J., concurring). In his concurrence in Watkins,
Justice Willett summed up his views on this issue as previously expressed
in Ogletree and Lewis:

       I concede that courts, this one included, cannot decree with
       micrometer-like precision when something falls from
       deficient to so-deficient-it‘s-absent. Each case has its own
       distinct facts, but judges are not incapable of applying
       indistinct lines, or at a minimum prescribing the outer ones.
       One bright-line marker seems beyond reasonable objection:
       when a ―report‖ contains none of the statutorily prescribed
       contents. . . . If a document bears zero resemblance to the
       statute—containing nothing that makes a report a report—it
       cannot receive an extension.

In re Watkins, 279 S.W.3d at 639.

       ....

        In Ogletree, the majority of the supreme court implicitly limited ―the
universe of possible reports‖ to ―two (and only two) types: absent reports,
which have not been filed at all and require dismissal of the case, and
deficient reports, which have been timely filed and may receive an
extension.‖ 262 S.W.3d at 323 (Willett, J., concurring). Justices Johnson
and Willett have argued in concurring opinions that there is in fact a third
category of purported reports—those that have been filed but are ―so
utterly lacking‖ as to merit immediate dismissal—but that view has not
been endorsed by a majority of the Court. As our colleagues in Fort Worth
stated in 2009:

       At present, neither Ogletree nor any other supreme court
       opinion holds that a timely served expert report containing a
       narrative that fails to include any expert opinion on the
       standard of care, breach, or causation is tantamount to no
       report at all and thus ineligible for any section 74.351(c)
       extension. Until a majority of the supreme court so holds,
       such a determination by this court would necessarily
       constitute a modification to Ogletree‘s absent or deficient
       expert report limitation, which would be improper because



                                      8
             we are bound as an intermediate appellate court by supreme
             court precedent.

      Scoresby v. Santillan, 287 S.W.3d 319, 324 (Tex. App.–Fort Worth 2009,
      pet. granted) (citing City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21
      (Tex. App.–Corpus Christi 2002, no pet.) (―As an intermediate appellate
      court, we are bound to follow the expression of the law as stated by the
      Texas Supreme Court and leave changes in the law to that court or the
      legislature.‖)).

De La Garza, 2011 Tex. App. LEXIS 4238, at *9-19 (footnote omitted).

      In De La Garza, the plaintiff‘s purported expert report actually exonerated the

defendant of any wrongdoing. See id. at *4. Nevertheless, we found that the purported

report was merely ―deficient,‖ and not ―absent,‖ because, although it ―undisputedly failed

to state that [the defendant] had breached any standard of care, the document was in

fact timely served.‖ Id. at *20. ―Because neither the supreme court nor this Court has

recognized the possibility that a timely filed report may be, in effect, no report,‖ we had

―no choice but to conclude that this is a ‗deficient report‘ case, not an ‗absent report‘

case.‖ Id.

      Though insufficient to satisfy chapter 74, Dr. de la Fuente‘s second letter is

stronger than the report we considered in De La Garza. The letter stated that Dr.

Villarreal initially performed Hernandez‘s root canal ―on the wrong tooth.‖ Dr. de la

Fuente further stated that, in his opinion, ―tooth #10 would not have any problems were

it not for the root canal treatment that was mistakenly done on it.‖ Although these

statements are not explicitly labeled as descriptions of the standard of care, breach, and

causation elements, they do clearly suggest that Dr. Villarreal breached the applicable

standard of care by performing a root canal on the wrong tooth, and that the tooth would

not have had ―any problems‖ but for the erroneous procedure.



                                            9
       Even if we were to adopt the position of Justices Johnson and Willett—that a

report, though timely filed, may be so woefully inadequate as to be considered ―no

report‖—we would likely conclude that Dr. de la Fuente‘s second letter was not ―so

utterly lacking‖ as to constitute ―no report‖ at all. Cf. In re Watkins, 279 S.W.3d at 639

(Willett, J., concurring) (arguing that a purported report is actually ―no report‖ when it

―contains none of the statutorily prescribed contents‖); Ogletree, 262 S.W.3d at 323

(Willett, J., concurring) (arguing that a timely filed report should be considered absent if

it ―neglects altogether to address the rudimentary elements of an expert report‖ or

―never and nowhere accuse[s] anyone of doing anything wrong‖); Lewis, 253 S.W.3d at

211-12 (Willett, J., concurring) (urging that a purported report be considered absent

when it ―totally omits the required statutory elements and makes no colorable attempt to

demonstrate liability‖). But, as we noted in De La Garza, the position articulated by

Justices Johnson and Willett has not been endorsed by a majority of the supreme court.

In fact, neither the supreme court nor this Court has recognized the possibility that a

timely filed report may be, in effect, no report.     See Scoresby, 287 S.W.3d at 325

(concluding that, regardless of whether the purported expert report was ―utterly lacking,‖

it was timely served and so cannot be considered ―absent‖ under Ogletree); see also De

La Garza, 2011 Tex. App. LEXIS 4238, at *20. Accordingly, we have no choice but to

conclude that Dr. de la Fuente‘s second letter is ―deficient,‖ not ―absent.‖

       The trial court did not abuse its discretion in denying Dr. Villarreal‘s motion to

dismiss and granting Hernandez a thirty-day extension to file a compliant report. We

overrule Dr. Villarreal‘s issue.

                                     III. CONCLUSION



                                             10
       In light of our conclusion that the trial court did not err in finding Dr. de la

Fuente‘s purported report to be merely deficient, rather than no report at all, we dismiss

the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f); Ogletree, 262 S.W.3d at

321 (holding that, if a deficient report is served and the trial court grants a thirty-day

extension, that decision, even if coupled with a denial of a motion to dismiss, is not

subject to interlocutory appeal).



                                                DORI CONTRERAS GARZA
                                                Justice

Delivered and filed the
9th day of June, 2011.




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