                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-005-CV


W ENDY COLLINI, M.D.                                                    APPELLANT

                                          V.

MARTHA PUSTEJOVSKY                                                       APPELLEE

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

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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

                           OPINION ON REMAND

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

      Appellant W endy Collini, M.D. appeals the trial court’s denial of her motion to

dismiss the health care liability claim of appellee Martha Pustejovsky. W e originally

dismissed this interlocutory appeal for want of jurisdiction. Collini v. Pustejovsky,

253 S.W .3d 292, 294 (Tex. App.—Fort W orth 2007), rev’d, 253 S.W .3d 216 (Tex.

2008). Because the Texas Supreme Court has held that we have jurisdiction, we

now consider the appeal on the merits. Collini, 253 S.W .3d at 216. In one issue,

appellant contends that the trial court abused its discretion in denying her motion to

dismiss by concluding that the expert report served upon her satisfied the
requirements of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351 (Vernon Supp. 2008). W e reverse and remand.

                                Background Facts

      In June 2006, Martha Pustejovsky asserted a health care liability claim against

W endy Collini, M.D.   Her original petition alleged that in 2002, another doctor

prescribed Reglan to her and that Dr. Collini continued this prescription for three

years. Pustejovsky claimed that the prolonged prescription and use of Reglan

caused her to develop tardive dyskinesia. 1     She asserted that Dr. Collini was

negligent and grossly negligent because Dr. Collini failed to inform her of the known

dangers associated with Reglan and failed to adequately monitor the proper

prescription of the drug and her condition while using it. Pustejovsky’s petition

sought actual and punitive damages related to her alleged physical pain, suffering,

and impairment along with further damages for mental anguish. In July 2006, Dr.

Collini filed her original answer, generally denying Pustejovsky’s allegations.

      In September 2006, in accordance with section 74.351, Pustejovsky served

on Dr. Collini an expert report prepared by Paul Haberer, D.O. Dr. Haberer’s report

indicates that he is a practicing physician, that he has been licensed in Texas since

      1
        Tardive dyskinesia is a condition that causes involuntary movement of the
limbs, face, or tongue. See State ex rel. F.H., 214 S.W .3d 780, 781 n.1 (Tex.
App.—Tyler 2007, no pet.); In re C.S., 208 S.W .3d 77, 79 n.7 (Tex. App.—Fort
W orth 2006, pet. denied). The prolonged use of Reglan may cause tardive
dyskinesia. See McNeil v. Wyeth, 462 F.3d 364, 366–67 (5th Cir. 2006) (explaining
the uses of Reglan and the potential adverse consequences from its prolonged
prescription).

                                         2
1976, and that he has been board certified in family practice since 1989. It then

recites that he has personal knowledge of the standard of care for primary care and

family medicine physicians and that he has reviewed Pustejovsky’s medical records

that he has acquired from various sources.

      The report then alleges the following facts. A physician originally prescribed

Reglan to Pustejovsky in 2002 to assist with abdominal and gastroesophageal

issues, and Dr. Collini continued the prescription for almost three years.         In

December 2004, Pustejovsky began suffering from sleep disturbances and

restlessness, and she also had tremors in her right hand. 2 Dr. Collini ended the

Reglan prescription in January 2005. As the Reglan left Pustejovsky’s system, the

effects of its overuse were unmasked, and by the next month, she was diagnosed

by Asher Imam, D.O. with “uncontrolled oral buccal dyskinesia.” Over the next

several months, two other doctors diagnosed Pustejovsky with tardive dyskinesia.

      Dr. Haberer’s report then relates that because tardive dyskinesia is a known

risk of taking Reglan, as has been disclosed by the drug’s manufacturer, the

standard of care requires that a prescription for the drug must be limited to no more

than twelve weeks and that those taking the drug should be closely monitored for

symptoms of any moving disorder. The report also asserts that when Pustejovsky’s

hand tremors began, Dr. Collini should have tapered off Reglan, sought a substitute

medication, and scheduled Pustejovsky for a neurological consultation.

      2
           The report alleged that the hand tremors began in February 2003.

                                          3
      Dr. Haberer also submitted his curriculum vitae with the report. The vitae

indicates that Dr. Haberer is currently on an emergency room staff at a hospital in

Eastland, Texas and that he has served in such a capacity at fourteen hospitals over

the last thirty years. It further relates (among other things) that he received a

bachelor’s degree in the field of pharmacy, that he attended a four-year pharmacy

specialist course in the early 1960s while he was in the air force, and that he was an

associate professor of medicine at the Texas College of Osteopathic Medicine from

1976 to 1988.

      In October 2006, Dr. Collini filed a motion to dismiss Pustejovsky’s claim with

prejudice, contending that she failed to make a good faith effort to serve an

adequate expert report as required by section 74.351. Specifically, Dr. Collini

argued that (1) Dr. Haberer did not qualify himself as an expert on liability and

causation because his report failed to explain that he had any familiarity with

prescribing Reglan or any experience in assessing the causal relationship between

Reglan and tardive dyskinesia and (2) Dr. Haberer’s report addressed causation only

through conclusory statements. 3 After Pustejovsky filed a response to Dr. Collini’s

motion, Dr. Collini filed a reply. The reply incorporated Dr. Collini’s complete medical

file on Pustejovsky, spanning more than seven hundred pages, in an attempt to



      3
         Concluding his report, Dr. Haberer expressed his opinion that “Dr. Collini’s
violations of the standard of care were a direct and proximate cause of Mrs.
Pustejovsky’s tardive dyskinesia and the worsening of her tardive dyskinesia caused
by the Reglan.”

                                           4
discredit the factual information and resulting conclusions contained in Dr. Haberer’s

report.

      On December 18, 2006, the trial court held a hearing on Dr. Collini’s motion

to dismiss. After Dr. Collini’s counsel briefly argued the motion, the trial court denied

it. Dr. Collini timely perfected this interlocutory appeal.

                     The Sufficiency of Dr. Haberer’s Report

      In her sole issue, Dr. Collini contends that the trial court abused its discretion

by refusing to dismiss Pustejovsky’s claim because Dr. Haberer’s report fails to

demonstrate his expert qualifications through experience with Reglan or the causal

relationship between that drug and tardive dyskinesia and also fails to provide a

specific factual explanation of such a causal relationship.

      Texas courts agree that review of a trial court’s denial of a motion to dismiss

under section 74.351 is subject to an abuse of discretion standard. See, e.g., Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d 873, 875 (Tex. 2001);

San Jacinto Methodist Hosp. v. Bennett, 256 S.W .3d 806, 811 (Tex. App.—Houston

[14th Dist.] 2008, no pet.); Moore v. Gatica, 269 S.W .3d 134, 139 (Tex. App.—Fort

W orth 2008, pet. filed) (op. on remand). Also, a trial court’s decision on whether a

physician is qualified to offer an expert opinion in a health care liability claim is

reviewed under an abuse of discretion standard. 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


                                           5
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). 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. Id.

A trial court does not abuse its discretion if it commits a mere error in judgment. See

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549, 558 (Tex. 1995).

      In a health care liability claim, a claimant must serve an expert report (that

addresses liability and causation) on each defendant no later than the 120th day

after the claim is filed. 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 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 it is found deficient by the trial court. Lewis v. Funderburk, 253 S.W .3d

204, 207–08 (Tex. 2008). W hen no report has been served because the report that

was served was found to be deficient, the trial court has discretion to grant one thirty-

day extension to allow the claimant to cure the deficiency. Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(c).




                                           6
       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.” Id. § 74.351(l); see Richburg v. Wolf, 48 S.W .3d 375, 377 (Tex.

App.—Eastland 2001, pet. denied) (adding that it is the defendant’s burden to

demonstrate that the good faith standard has not been satisfied). 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 or health care provider 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

875, 878.

       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. A report does

not fulfill this requirement if it merely states the expert’s conclusions or if it omits any

of the statutory requirements. Id. at 879. The information in the report “does not

have   to   meet    the   same    requirements      as   the   evidence     offered   in   a

summary-judgment proceeding or at trial.” Id. W hen reviewing the adequacy of a

report, the only information relevant to our inquiry is the information contained within

the four corners of the document. Id. at 878; see Bowie Mem’l Hosp. v. Wright, 79


                                             7
S.W .3d 48, 52 (Tex. 2002). 4 This requirement precludes a court from filling gaps in

a report by drawing inferences or guessing as to what the expert likely meant or

intended. See Austin Heart, P.A. v. Webb, 228 S.W .3d 276, 279 (Tex. App.—Austin

2007, no pet.) (citing Bowie Mem’l Hosp., 79 S.W .3d at 52).

      An expert report concerning standards of care for physicians “authored by a

person who is not qualified to testify . . . cannot constitute an adequate report.” In

re Windisch, 138 S.W .3d 507, 511 (Tex. App.—Amarillo 2004, no pet.); see Ehrlich

v. Miles, 144 S.W .3d 620, 624–25 (Tex. App.—Fort W orth 2004, pet. denied). To

be an “expert” on the departure from a physician’s standard of care (therefore

qualifying the submission of an expert report), a person must be a physician who




      4
         W e recognize that the Beaumont Court of Appeals has held that medical
records submitted by a defendant in an objection to an expert report may be
considered by the trial court in determining the adequacy of the report. See Baptist
Hosps. of Se. Tex. v. Carter, No. 09-08-00067-CV, 2008 W L 2917109, at *3 n.4
(Tex. App.—Beaumont July 31, 2008, no pet.) (mem. op.). Dr. Collini relies on
Carter to urge us to review the medical records submitted in her reply at trial, which
she claims demonstrate inconsistencies with the factual statements contained in Dr.
Haberer’s report. In essence, Dr. Collini asserts that we should consider information
outside of the expert report on her behalf while we are prohibited from doing so on
behalf of Pustejovsky. W e disagree with the reasoning expressed by our sister court
in Carter, and we rely on the language contained in Palacios and Bowie Memorial
Hospital to constrain our review of the report’s adequacy at this preliminary stage in
the proceedings to the specific information and allegations contained within it. See
Bowie Mem’l Hosp., 79 S.W .3d at 53 (limiting review of an expert report to
information contained within its four corners); Palacios, 46 S.W .3d at 878 (stating
that a court “should look no further than the report”); see also Maris v. Hendricks,
262 S.W .3d 379, 386 (Tex. App.—Fort W orth 2008, pet. denied) (prohibiting a
physician from using deposition testimony to attack the adequacy of an expert report
served upon him).

                                          8
      (1) is practicing medicine at the time such testimony is given or was
      practicing medicine at the time the claim arose; 5

      (2) has knowledge of accepted standards of medical care for the
      diagnosis, care, or treatment of the illness, injury, or condition involved
      in the claim; and
      (3) is qualified on the basis of training or experience to offer an expert
      opinion regarding those accepted standards of medical care.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(5)(A), § 74.401(a) (Vernon 2005). In

determining the third element of this standard, courts must consider whether the

physician who completed the report (1) is board certified or has other substantial

training or experience in an area of medical practice relevant to the claim and (2) is

actively practicing medicine in rendering medical care services relevant to the claim.

Id. § 74.401(c). In other words,

      there is no validity, if there ever was, to the notion that every licensed
      medical doctor should be automatically qualified to testify as an expert
      on every medical question . . . . [T]he proponent of the testimony has
      the burden to show that the expert possesses special knowledge as to
      the very matter on which he proposes to give an opinion.

Ehrlich, 144 S.W .3d at 625 (quoting Broders v. Heise, 924 S.W .2d 148, 152–53

(Tex. 1996)). For this reason, the offered report must generally demonstrate that the

expert has “knowledge, skill, experience, training, or education regarding the specific

issue before the court which would qualify the expert to give an opinion on that



      5
         Dr. Collini has not challenged that Dr. Haberer was practicing medicine at
the time he submitted his report or when Pustejovsky's claim arose. Therefore, we
will limit our analysis to the second and third statutory prongs related to expert
qualifications on the standard of care issue. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.401(a)(2)–(3).

                                          9
particular subject.” Id. (quoting Roberts v. Williamson, 111 S.W .3d 113, 121 (Tex.

2003)).

      However, there are certain standards of medical care that apply to multiple

schools of practice and any medical doctor. See McKowen v. Ragston, 263 S.W .3d

157, 165 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Blan v. Ali, 7 S.W .3d 741,

745–46 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Therefore, a physician

“who is not of the same school of medicine [as the defendant] is competent [to

submit a report] if he has practical knowledge of what is usually and customarily

done by a practitioner under circumstances similar to those confronting the

defendant.” Ehrlich, 144 S.W .3d at 625; see Marling v. Maillard, 826 S.W .2d 735,

740 (Tex. App.—Houston [14th Dist.] 1992, no writ).

Dr. Haberer’s Expert Qualifications

      Dr. Collini contends that Dr. Haberer failed to qualify himself as an expert

because his report does not demonstrate any expertise or experience in prescribing

Reglan or diagnosing or treating drug-induced tardive dyskinesia. Pustejovsky

asserts that Dr. Haberer was not required to address his experience with Reglan or

tardive dyskinesia because the specific issue in this case concerns a physician’s

duty to comply with a drug manufacturer’s expressed instructions and warnings,

which is a common standard known by all physicians.

      Was Dr. Haberer’s Report Required to Demonstrate His Knowledge of
      and Experience Related to the Accepted Standards of Medical Care
      Specifically Concerning the Prescription of Reglan?

                                        10
      Dr. Collini first contends that because Dr. Haberer’s current area of practice

is emergency medicine, he cannot address the standard of care that applies to her,

because she is an internist. However, the proper inquiry in assessing Dr. Haberer’s

qualifications to submit an expert report is not his area of practice, but his familiarity

with the issues involved in the claim before the court. See Blan, 7 S.W .3d at 745.

      Next, Dr. Collini asserts that Dr. Haberer’s report is insufficient to establish his

qualifications because it does not establish that he has any specific experience

“regarding the prescription of Reglan.” To establish his qualifications, Dr. Haberer

was required to demonstrate experience with the specific issues raised by

Pustejovsky’s claim. See Ehrlich, 144 S.W .3d at 625.

      Pustejovsky's original petition indicated that the specific factual issue she was

raising in her claim concerned the lengthy, ongoing prescription of Reglan. Dr.

Haberer's report describes that

      [t]he standard of care pertaining to Reglan is to limit the time prescribed
      to no more than 12 weeks and the lowest dose needed to provide
      therapeutic relief. For gastrointestinal problems, Reglan's manufacturer
      specifies that this drug should be prescribed for no more than 4–12
      weeks and this is the standard of care applicable to this case. Tardive
      dyskinesia (TD) is a known complication of metoclopramide, which is
      also disclosed by Reglan's manufacturer.

      There are minimum, general standards of prescribing medication that are

common to all physicians and all schools of practice. See Patel v. Williams ex rel.

Estate of Mitchell, 237 S.W .3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007, no



                                           11
pet.) (approving of an expert report’s explanation of the breach of the standard of

care for prescribing Risperdal because its use for treating dementia had not been

approved by the FDA and concluding that a “reasonable physician should not, as a

general proposition, prescribe the wrong drug for his patients”); Puempel v. Lopez,

No. 05-07-00371-CV, 2007 W L 3173405, at *3–4 (Tex. App.—Dallas Oct. 31, 2007,

no pet.) (mem. op.) (affirming the use of FDA and PDR guidelines to define the

standard of care for prescribing weight loss medication); Metot v. Danielson, 780

S.W .2d 283, 286–87 (Tex. App.—Tyler 1989, writ denied), overruled on other

grounds by Cecil v. Smith, 790 S.W .2d 709, 716 (Tex. App.—Tyler 1990) (op. on

reh’g), rev’d, 804 S.W .2d 509 (Tex. 1991) (holding that the trial court abused its

discretion when it decided that a board-certified doctor was not qualified to testify

about a neurosurgeon’s “general minimum standards” for the prescription of drugs

that are “applicable to all physicians”).     Dr. Haberer’s report indicates that he

certainly has experience with the general standards related to prescribing

medications.   For instance, it demonstrates that he is board certified in family

practice, that he has “personal knowledge of the standard of care applicable to . . .

family medicine,” that he has experience in practicing in hospitals and in family

practice, and that, as explained above, his undergraduate degree and post-graduate

employment and research activities concerned pharmaceutical matters. Based on

this experience, his report demonstrates his qualifications to opine on the duties to

follow a manufacturer’s instructions about the length of time a drug should be


                                         12
prescribed, heed warnings specifically given by the manufacturer related to that

drug, and monitor a patient’s conditions that may be connected to those warnings.

Because Dr. Haberer’s report indicates that he had knowledge of the accepted

standards of medical care related to prescribing medication and acting on such

medication’s related instructions and warnings and that he has experience and

training in doing so, we conclude that he was qualified to submit a report establishing

Dr. Collini’s standards of care in this case. 6 See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.401(a)(2), (3).

      Was Dr. Haberer’s Report Required to Demonstrate His Knowledge of
      and Experience Related to the Causal Relationship of Reglan with
      Tardive Dyskinesia?

      Next, Dr. Collini asserts that Dr. Haberer has not qualified himself as an expert

on causation because he has not recited experience or expertise in the diagnosis

and treatment of drug-induced tardive dyskinesia. Along with the standards of care

and a description of a physician’s inability to satisfy those standards, an expert report

served under section 74.351 must address the causal relationship to the damages



      6
         If Dr. Haberer had submitted no details regarding the manufacturer’s
warnings related to Reglan, he likely would have been required to demonstrate his
specific experience with the drug and its effects related to his standard of care
assertion, because he would have been assessing blame on Dr. Collini for
prescribing the drug based on his independent knowledge of it. However, Dr.
Haberer’s report relies on the manufacturer’s instructions and warnings to assert that
when presented with such instructions, a physician has a duty to follow them, and
when presented with such warnings, a physician has a duty to monitor conditions
related to them. W e conclude that these asserted duties do not require specialized
understanding. See Blan, 7 S.W .3d at 745.

                                           13
the plaintiff has claimed. Id. § 74.351(j), (r)(6). A physician is qualified to submit an

expert report on the causal relationship between a departure from a standard of care

and an injury when he would otherwise be qualified to address causation under rule

702 of the Texas rules of evidence. Id. § 74.351(r)(5)(C); see Tex. R. Evid. 702; 7

Thomas v. Alford, 230 S.W .3d 853, 857 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). The party offering the witness as an expert on causation must establish that

the witness is qualified to testify under rule 702. Mem’l Hermann Healthcare Sys.

v. Burrell, 230 S.W .3d 755, 762–63 (Tex. App.—Houston [14th Dist.] 2007, no pet.)

(deciding that a doctor was qualified to opine about causation because his report

demonstrated direct experience with treating decubitus ulcers, which was the

condition at issue). To be so qualified, “an expert must have knowledge, skill,

experience, training, or education regarding the specific issue before the court that

would qualify the expert to give an opinion on that particular subject.” Thomas, 230

S.W .3d at 857, 860 (citing Broders, 924 S.W .2d at 153) (holding that because the

doctor who submitted an expert report did not demonstrate knowledge of cancer

treatment, he was not qualified to offer an opinion that an earlier diagnosis could

have produced a better outcome for the plaintiff). Further, to justify the submission

of an opinion under the rules of evidence, the proponent of the opinion must show

      7
         Rule 702 states 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.

                                           14
that the opinion is reliable. See Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 578

(Tex. 2006).

      W hile Dr. Haberer’s curriculum vitae does establish a background in

pharmaceutical matters, his report does not indicate that he has any specific

knowledge, experience, education, or training in assessing the causal relationship

between the prolonged use of Reglan and tardive dyskinesia. In fact, his report does

not state that he has any experience or training regarding Reglan or tardive

dyskinesia at all; rather, it only generally states that he has knowledge applicable to

“primary care and family medicine.” The report does not indicate that the diagnosis

of tardive dyskinesia resulting from prolonged Reglan use is a matter that is

developed in various fields to the extent that any physician would be qualified to

report about it. Dr. Haberer, therefore, has not demonstrated his qualifications,

under the standards set forth above, to support his attempt to causally link the

alleged breach of Dr. Collini’s duty to follow manufacturer’s instructions and

warnings to Pustejovsky’s deteriorating condition starting in December 2004.

      Pustejovsky contends that Dr. Haberer’s qualifications to assess causation

may be established by the facts that Reglan’s manufacturer disclosed tardive

dyskinesia as a known complication and that the report details that three physicians

diagnosed her with dyskinesia related to her Reglan use. Courts have held that in

addressing causation, a reporting physician may rely on the opinions of other

individuals who have rendered reports or diagnoses. See Kelly v. Rendon, 255


                                          15
S.W .3d 665, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (noting that

“nothing in the health care liability statute prohibits an otherwise qualified physician

from relying on [another opinion] in the formation of the physician’s own opinion”);

Cresthaven Nursing Residence v. Freeman, 134 S.W .3d 214, 234 (Tex.

App.—Amarillo 2003, no pet.) (holding that a testifying physician properly relied, in

part, on the opinions of other doctors in establishing causation); see also Tex. R.

Evid. 703 (stating that an expert can base an opinion on reasonably reliable data).

However, in both Kelly and Freeman, the reporting physicians also demonstrated

their own qualifications related to their specific experience with conditions involved

in those claims. See Kelly, 255 S.W .3d at 673–75; Freeman, 134 S.W .3d at 232.

Also, while Dr. Haberer’s report briefly states the conclusions of the three physicians

who examined Pustejovsky, it does not provide any background on the experience

or training of those physicians that would signal to the trial court that those opinions

were reliable. See Tex. R. Evid. 703 (requiring reasonable reliance in the formation

of an expert opinion); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W .2d 713, 728

(Tex. 1998) (noting that a trial court must determine whether the analysis used to

reach an expert’s conclusions is reliable).

      Finally, Dr. Haberer’s report contains several statements regarding Reglan or

tardive dyskinesia that are unrelated to either the other physicians’ opinions or the

manufacturer’s instructions and warnings. For instance, Dr. Haberer states that

Reglan can “help mask the symptoms of dyskinesia” and that the “risk of [tardive


                                          16
dyskinesia] is greater in women, the elderly, 8 and increases with duration of use.”

As demonstrated, while Dr. Haberer may be well qualified to make these assertions,

the four corners of his report simply do not provide any details regarding such

qualifications.

      W e hold that Dr. Haberer has not adequately demonstrated his qualifications

to submit an expert report on the issue of causation; therefore, his report is deficient

and does not comply with section 74.351. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l), (r)(5)–(6); Palacios, 46 S.W .3d at 877; Windisch, 138 S.W .3d at 511

(noting that a report authored by an unqualified doctor cannot be adequate).

Therefore, Dr. Haberer’s report is insufficient; we sustain Dr. Collini’s sole issue. W e

now turn to the issue of causation to provide the trial court with guidance on the

retrial of this issue should the trial court grant Pustejovsky an extension. See

Edinburg Hosp. Auth. v. Trevino, 941 S.W .2d 76, 81 (Tex. 1997).

The Adequacy of Dr. Haberer’s Causation Explanation

      Finally, Dr. Collini asserts that apart from the issues regarding qualifications,

Dr. Haberer’s report contains an insufficient explanation of the causal relationship

between Dr. Collini’s prescriptions of Reglan and Pustejovsky’s conditions. As we

have described, an expert report must provide a fair summary of the expert’s

opinions on the causal relationship of a breach from a standard of care to the harm

claimed in the case, with enough specificity to allow the trial court to conclude that

      8
           Pustejovsky was 76 years old when Dr. Haberer filed his report.

                                           17
the plaintiff’s claims have merit. Palacios, 46 S.W .3d at 875, 878; see Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(r)(6). Applying this standard, an expert report is

insufficient when it contains only a series of repetitious, conclusory statements

regarding causation. See Jones v. King, 255 S.W .3d 156, 159 (Tex. App.—San

Antonio 2008, pet. denied) (mem. op.) (adding that an expert must “explain the basis

of his statements to link his conclusions to the facts”).

      W e hold that Dr. Haberer’s report addresses causation in a conclusory fashion

and is therefore insufficient. W hile the report adequately describes Pustejovsky’s

alleged physical harm (including her sleep disturbances, hand tremors, and leg

restlessness) and states the conclusions of four doctors (including Dr. Haberer) 9 that

such harm was related to Reglan use, it does not provide any medical detail as to

how the Reglan caused Pustejovsky’s conditions or, more importantly, how Dr.

Collini’s specific prescriptions of Reglan (beyond the taking of Reglan generally)

attributed to the harm. 10 And while the manufacturer’s warning (that Reglan should



      9
       As described above, Dr. Haberer’s opinion on causation is limited to one
conclusory sentence at the end of his report.
      10
          Dr. Haberer’s report indicates that the three physicians’ respective
conclusions were that Pustejovsky’s tardive dyskinesia was “attributed to the use of
Reglan,” “secondary to [Reglan],” and “due to Reglan.” However, as explained
above, Pustejovsky’s petition did not fault Dr. Collini with prescribing Reglan
generally; rather, it focused on “ongoing Reglan prescriptions.” Therefore, the
conclusions on causation of those three physicians, to the extent that they are
revealed in Dr. Haberer’s report, do not relate to a causal relationship with Dr.
Collini’s alleged breach of the specific standard of care at issue—the prolonged
prescription of Reglan to Pustejovsky.

                                          18
not be prescribed for more than twelve weeks) coupled with the causation opinions

of the four doctors (though conclusory) may create a reasonable inference that Dr.

Collini’s prolonged prescription of Reglan caused Pustejovsky’s condition, we are not

permitted to rely on that inference in reviewing Dr. Haberer’s report. 11 See Webb,

228 S.W .3d at 279 (noting that courts are precluded “from filling gaps in a report by

drawing inferences”); see also Castillo v. August, 248 S.W .3d 874, 883 (Tex.

App.—El Paso 2008, no pet.) (explaining that courts are not permitted to infer

causation). Because Dr. Haberer’s report does not adequately address the link

between Dr. Collini’s alleged breach of her standard of care and Pustejovsky’s

tardive dyskinesia that allegedly resulted, the report is insufficient.

                     Proper Disposition Following Reversal

      In her brief, Dr. Collini contends that upon reversal, we should render a

judgment dismissing Pustejovsky’s claims with prejudice. Pustejovsky asserts that

if we hold Dr. Haberer’s report to be insufficient, we should remand this case to the




      11
          W hile it seems to us that we should be able to determine that the
explanation on causation is adequate when three physicians’ diagnoses of tardive
dyskinesia have been expressed in the report, we simply are constrained from doing
so here because we are limited to the report’s four corners, which do not contain a
specific link of the diagnoses to Dr. Collini’s actions or those three physicians’
qualifications and the documentation they relied on to form their opinions. See
Palacios, 46 S.W .3d at 878; Jones, 255 S.W .3d at 159– 60.

                                          19
trial court to allow it to consider granting thirty additional days to cure the

deficiency. 12

        The Texas Supreme Court has held that section “74.351’s plain language

permits one thirty-day extension when the court of appeals finds deficient a report

that the trial court considered adequate.” Leland v. Brandal, 257 S.W .3d 204, 207

(Tex. 2008). Accordingly, the trial court should have an opportunity to consider

granting Pustejovsky an extension to cure the deficiencies detailed in this opinion.

                                     Conclusion

       Having sustained Dr. Collini’s only issue, we reverse the trial court’s decision

regarding the sufficiency of Dr. Haberer’s report and remand this case to that court

to consider the issue of whether to grant Pustejovsky a thirty-day extension to file an

adequate expert report.



                                               TERRIE LIVINGSTON
                                               JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

DAUPHINOT, J. filed a dissenting and concurring opinion.

DELIVERED: February 12, 2008




       12
          Pustejovsky also sought such an extension as alternative relief from the
trial court in the event that it found the expert report to be deficient.

                                          20
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                 NO. 2-07-005-CV

W ENDY COLLINI, M.D.                                                    APPELLANT

                                          V.

                                                                         APPELLEE
MARTHA PUSTEJOVSKY
                                      ------------

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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

    DISSENTING AND CONCURRING OPINION ON REMAND

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

      I concur with the result reached by the majority. But I write separately to

emphasize that this opinion should be limited to the specific facts at issue and also

to caution that we as judges must guard against the idea that it is better to toss out

legitimate medical claims than to let a frivolous claim proceed.

      An expert report under section 74.351 of the Texas Civil Practice and

Remedies Code does not need to rise to the level of proof sufficient to win at trial;




                                           1
it need only assure the trial court that the plaintiff’s claim is not frivolous. 1 The report

must, of course, demonstrate that the expert is qualified to render the opinions given

in the report. 2 As the majority points out, Dr. Haberer’s report did not demonstrate

any personal expert knowledge, gained either from experience or training, about the

effects of the overprescription of Reglan. His assertions about causation were

based on the warnings of the drug manufacturer and the diagnoses of other doctors

whose qualifications do not appear in his report.

       A layperson can determine that if a drug manufacturer warns that

overprescribing a drug could cause certain injuries—in this case tardive dyskinesia

(“TDk”)—then it is a possibility that a doctor’s overprescription of the drug could

indeed cause such injuries. But Texas law requires that, in medical malpractice

actions, a medical expert give an opinion about whether a doctor’s act in fact did

cause the alleged injuries. 3 To qualify as an expert, a person must demonstrate




       1
         Jernigan v. Langley, 195 S.W .3d 91, 93 (Tex. 2006) (stating that expert
report “need not marshal every bit of the plaintiff’s evidence” but must provide a “fair
summary” of expert’s opinion on standard of care, breach of that standard of care,
causation, and harm).
       2
        See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(5)(A) (Vernon Supp.
2008), § 74.401(a)(4) (Vernon 2005) (defining “expert” to mean someone qualified
on the basis of training or experience to offer an expert opinion).
       3
         See id. § 74.351(a), (r)(6) (requiring plaintiff alleging medical malpractice
claim to provide an expert report and defining “expert report” to mean a report by an
expert that provides, among other things, the expert’s opinion regarding causation).

                                             2
some knowledge beyond what a layperson would have. 4 Thus, in this case, the

expert must demonstrate some basis for knowledge about causation beyond stating

that if Reglan’s manufacturer warned that overprescription of the drug could cause

TDk, then ipso facto Dr. Collini’s overprescription of Reglan did cause Mrs.

Pustejovsky‘s TDk. 5

      I agree with the majority that Dr. Haberer’s report does not show that in this

specific area, he had any knowledge beyond that of a layperson. He did not, for

example, show that he had conducted research on TDk or on Reglan. 6 Although Dr.

Haberer had knowledge that failing to heed a drug manufacturer’s warning can

cause injury, nothing in his report shows the basis for his assertion that the




      4
          See id. § 74.351(r)(5)(C) (“‘expert’ means . . . a physician who is otherwise
qualified to render opinions on [causation] under the Texas Rules of Evidence”); Tex.
R. Evid. 702 (stating that a witness may be qualified as an expert “by knowledge,
skill, experience, training, or education”).
      5
          See Leland v. Brandal, 217 S.W .3d 60, 62–63 (Tex. App.—San Antonio
2006) (holding that anesthesiologist’s report showed he was qualified to render
opinion that cessation of medicines taken by plaintiff may cause stroke but did not
show his qualification to give opinion that cessation of medication did cause
plaintiff’s stroke), aff’d, 257 S.W .3d 204 (Tex. 2008).
      6
        See, e.g., Salvato v. Angelo, No. 14-07-00784-CV, 2008 W L 961772, at
*6–7 (Tex. App.—Houston [14th Dist.] Apr. 08, 2008, no pet.) (mem. op.) (holding
doctor qualified to opine on negligence of defendant in prescribing anabolic steroids
and causation of plaintiff’s injuries even though expert doctor was not an
endocrinologist when her report provided sufficient evidence of her knowledge in
connection with clinical studies prescribing and monitoring hormones in patients).

                                           3
overprescription of the drug at issue here actually caused the alleged injuries in this

case.7

         But I emphasize that the law is also clear that a medical expert is not uniformly

required to be specialized in an area to be qualified to opine on it. And an expert

need not necessarily have personal professional experience with a drug or

procedure to be qualified to give an opinion that the drug or procedure caused a

plaintiff’s alleged injuries. The expert is qualified to give an opinion on causation so

long as the expert demonstrates some “knowledge, skill, experience, training, or

education” sufficient to support the opinion. 8

         The legislature did not intend to make it impossible or unjustly burdensome

for legitimate medical malpractice claims to proceed to and succeed at trial. In this

case, for example, a doctor failed to heed warnings by Reglan’s manufacturer that

its overuse can cause TDk. Three different doctors examined Mrs. Pustejovsky and

concluded that she developed TDk because of the use of Reglan. On the face of it,

this case is an excellent example of a nonfrivolous claim. Yet we are constrained

to hold that evidence of these facts alone is not good enough to allow Mrs.

Pustejovsky her day in court.




         7
              See Leland, 217 S.W .3d at 62–63.
         8
              See Tex. R. Evid. 702.

                                             4
      Statutes such as section 74.351 must be read in light of the open courts

provision of our Texas constitution. 9        The legislature did not abrogate that

constitutional protection in passing section 74.351. W e must not with our opinions

indicate a zeal to scrutinize expert reports more closely than we are required to

under the law, nor an apathy toward whether even legitimate claims are tossed out

of court; we must always remember our obligation to preserve, protect, and defend

the constitution of this state. I believe that in fulfilling that obligation, we must

explicitly limit our holding to this case to prevent its broad misapplication in other

cases.

      Because the majority does not explicitly so limit the holding, I respectfully

dissent.



                                                LEE ANN DAUPHINOT
                                                JUSTICE

DELIVERED: February 12, 2009




      9
           Tex. Const. art. I, § 13.

                                          5
