                  NUMBER 13-14-00756-CV

                  COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI – EDINBURG

VALLEY BAPTIST MEDICAL
CENTER-BROWNSVILLE,                                   Appellant,


                              v.


ROSALINDA BATTLES, GERALD
BATTLES, AS SURVIVING SPOUSE
OF ROSALINDA BATTLES, AMANDA
GISELLE BATTLES, AS SURVIVING
CHILD OF ROSALINDA BATTLES,
AND JEREMY BLAKE BATTLES, AS
SURVIVING CHILD OF ROSALINDA
BATTLES,                                              Appellees.



            On appeal from the 444th District Court
                 of Cameron County, Texas.
                               MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza and Longoria
                    Memorandum Opinion by Justice Longoria

       Appellant Valley Baptist Medical Center (“VBMC”) brings this interlocutory appeal

in a healthcare liability claim concerning the adequacy of an expert report. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.). By a single issue,

VBMC asserts that the trial court erred in denying its motion to dismiss. According to

VBMC, dismissal was mandatory since appellees did not file a qualifying expert report

within the statutory timeframe. We reverse and render, in part, and reverse and remand,

in part.

                                              I. BACKGROUND

       On July 24, 2013, the surviving spouse and children (collectively, “appellees”) of

Rosalinda Battles filed suit against VBMC for the wrongful death of Rosalinda, who died

after surgery there to remove her gallbladder. On November 21, 2013 appellees served

VBMC with an expert report from Nurse Erin K. O’Malley. This report listed O’Malley’s

qualifications as an expert, as well as the following: 1

       You have asked me for my opinion on the standards of care, breaches of
       said standards, and the basis of same in the case of Battles vs. Valley
       Baptist Medical Center.

       ....

       This report has been rendered in a professional, diligent manner, and is
       based on the facts obtained from the materials provided me, as well as my
       education, training and clinical expertise in general nursing care. This
       report is intended to be a fair summary of my opinions.




       1   We have excluded the qualification section since it is not in dispute on appeal.

                                                      2
      I have reviewed the following records provided by your office regarding Mr.
      Bradford [sic]:

             Autopsy Report

             Lab Reports

             Medical Records from Valley Baptist Medical Center

      Summary:

      On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center
      for a routine cholecystectomy and was admitted to a short stay unit. The
      procedure was done without incident. The patients [sic] vital signs remained
      stable throughout the procedure, and in post-operative care. That evening
      around 5:30 pm the patient started complaining of headaches, nausea, and
      vomiting. At 6:12 pm the patient exhibited seizure activity. The patient lost
      consciences [sic], and a code was called. The patient was intubated, given
      Lovenox, and transferred to the intensive care unit. The patient was taken
      to CT scan, which showed minimal edema, and no intracranial bleeding.
      The CT angiogram of the chest showed no pulmonary embolism. The CT
      scan of the abdomen showed no fluid collection. The patient developed a
      sub arachnoid and subdural hemorrhage. This caused cerebral edema,
      hemorrhage, necrosis, herniation at the brain stem area which eventually
      caused death. The family was aware of her condition and decided that Ms.
      Battles should be taken off life support.

      VBMC timely objected to the expert report on the grounds that it: 1) failed to set

out the appropriate standard of care; 2) failed to set forth how VBMC breached the

standard of care; and 3) failed to identify and explain the causal link between VBMC’s

alleged breaches of the standard of care and the plaintiff’s injuries. VBMC moved to

dismiss the case or, in the alternative, give appellees thirty days to cure the deficient

expert report if the trial court found the report deficient and if the appellees requested

such an extension. On January 8, 2014, the trial court granted appellees thirty days to

cure the deficiencies in the report. On February 7, 2014, appellees filed an updated

expert report from O’Malley. The second report was identical to the first except that it

added the following paragraph:

                                            3
       Based on information reviewed to date, I cannot fully say that the standard
       of care concerning the care of Mrs. Battles was breached nor can I say it
       was complied with. There is evidence that the nursing staff did not notify
       the operating physician of Mrs. Battles’ symptoms for nausea and
       headaches. If these symptoms were reported prior to seizure activity, then
       a diagnostic testing such as the CT scan could have been performed earlier.
       However, the CT scan done after the seizure episode did not show the
       impending sub arachnoid and subdural hemorrhage. However, I find that if
       the CT [s]can was done sooner and with more extensive views the sub
       subarachnoid and subdural hemorrhage could have been seen prior to
       seizure activity. The nursing staff disregarded Mrs. Battles’ symptoms and
       did not inform the operating physician of her condition. Had this been done,
       a neurosurgeon could have been called before Mrs. Battles’ seizure activity
       occurred and may have avoided her catatonic state and, ultimately, her
       death.

       On March 12, 2014, VBMC objected to the second expert report, again stating that

the report failed to meet the statutory requirements, and moved for dismissal.           On

December 10, 2014, the trial court denied VBMC’s motion to dismiss. VBMC brought this

appeal.

                       II. STANDARD OF REVIEW AND APPLICABLE LAW

       We review a trial court’s ruling on a motion to dismiss under section 74.351 of the

Texas Civil Practice and Remedies Code for abuse of discretion. Jernigan v. Langley,

195 S.W.3d 91, 93 (Tex. 2006).             “The trial court abuses its discretion if it acts

unreasonably or arbitrarily or without reference to any guiding rules or principles.” Walker

v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). The court of appeals cannot reverse a

decision committed to the trial court’s discretion if the court of appeals simply disagrees

with the trial court’s judgment. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42

(Tex. 1989) (orig. proceeding). The trial court’s decision must result in a “clear and

prejudicial error” to be reversible. Id.




                                                4
       The Texas Medical Liability Act, codified in Chapter 74 of the Civil Practice and

Remedies Code, governs the process of serving expert reports in health care liability

suits. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2015

R.S.). Section 74.351(a) states that the plaintiff in a medical liability suit has 120 days to

serve each defendant with an expert report. Id. § 74.351(a). Chapter 74 defines an

expert report as:

       a written report by an expert that provides 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). Section 74.351(a) states that defendants have twenty-one days upon

receipt of the report to object to any deficiencies; failure to object results in waiver of all

objections to the expert report. Id. § 74.351(a)(1). Under section 74.351(b), if no report

is filed, the trial court shall enter an order dismissing the suit and awarding the affected

physician or health care defendant with attorney’s fees and costs.           Id. § 74.351(b).

However, “if an expert report has not been served within the period specified by

Subsection (a) because elements of the report are found deficient,” the court may grant

a thirty-day extension for the plaintiff to cure the deficiencies. Id. § 74.351(c). As the

Supreme Court of Texas has noted, the Act’s purpose is to strike a delicate balance

between deterring frivolous law suits without needlessly disposing of meritorious claims.

Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008). In general, trial courts should “err

on the side of granting claimants' extensions.” Samlowski v. Wooten, 332 S.W.3d 404,

411 (Tex. 2011). This way, meritorious suits will have a chance to be heard on the merits

before being dismissed; only frivolous suits should be dismissed from the outset. Id.



                                              5
       However, a string of Texas Supreme Court cases have clarified what constitutes

an adequate expert report. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013);

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011); Samlowski, 332 S.W.3d at 411;

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010); Ogletree v. Matthews, 262 S.W.3d 316

(Tex. 2007). In Ogletree, the Texas Supreme Court rejected the argument that a deficient

report is the same as no report under the Act. 262 S.W.3d at 320. The Court recognized

that the Act differentiates between a nonexistent report and a report that is filed in good

faith but ultimately falls short of the statutory requirements such as by failing to state the

applicable standard of care. Id. Nonexistent reports lead to dismissal whereas merely

deficient reports should lead to a thirty-day extension to allow an opportunity for

deficiencies to be cured. Id. The Court in Scoresby addressed the specific question of

whether an expert report can be “so lacking in substance that it does not qualify as an

expert report.” 346 S.W.3d at 555. The Court affirmed its previous decision in Ogletree

but with a caveat: “[t]o stretch the meaning of deficient to include a sheet of paper with

the two words, ‘expert report’, written on it would mock the Act's requirements.” Id. at

556. Looking to past decisions, the Court noted that 74.351 requires “an objective good

faith effort to comply” with the statutory requirements. Id.

       Based on this understanding of the Act, the Court created a three-prong test to

determine whether an expert report is adequate: the report must 1) “be served by the

statutory deadline”; 2) “inform the defendant of the specific conduct the plaintiff has called

into question”; and 3) “provide a basis for the trial court to conclude that the claims have

merit.” Id. at 555-57 (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 879 (Tex. 2001)). To determine if the three elements are present, the trial



                                              6
court must look no further than the four corners of the expert report; any “omissions may

not be supplied by inference.” Id. (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002)). If any element is missing, then no expert report has been filed and the case

should be dismissed regardless of when the defendant objects. See id.; see also Haskell

v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 759 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (holding that if a report is so deficient as to constitute

no report at all, the twenty-one day deadline to object is never triggered and the trial court

is “required to dismiss”); Velandia v. Contreras, 359 S.W.3d 674, 679 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (stating that dismissal is automatic, regardless of when

the defendant objects, if the report filed constitutes no report at all); see also San Antonio

Extended Med. Care, Inc. v. Vasquez, 358 S.W.3d 685, 691 (Tex. App.—San Antonio

2011, pet. dism'd w.o.j.) (holding that the trial court “did not have a basis” to deny

defendant’s motion to dismiss because the underlying expert report was not an expert

report as defined in Scoresby). The court further elaborated in a later opinion that as long

as there is “at least one viable liability theory, as evidenced by an expert report,” the claim

is not frivolous and should proceed forward. Potts, 392 S.W.3d at 631.

                                       III. DISCUSSION

       VBMC contends in a single issue that the trial court had no discretion to deny its

motion to dismiss because O’Malley’s report did not meet the statutory minimum

requirements to qualify as an expert report. We agree. We conclude that under the test

set forth in Scoresby, O’Malley’s second expert report failed to comply with the statutory

requirements of section 74.351. Thus, it was an abuse of the trial court’s discretion to

deny VBMC’s second motion to dismiss.



                                              7
       In order to meet the statutory requirements, Scoresby requires that the report: 1)

be filed in the statutory deadline; 2) implicate the defendant's conduct; and 3) contain the

opinion of an individual with expertise that the claim has merit. 346 S.W.3d at 557. The

second report was filed within the statutory thirty-day deadline for filing an amended

report. Appellee’s second report, however, is wholly deficient under the second and third

prongs of the Scoresby test. O’Malley never indicates her opinion regarding whether or

not the claim has any merit nor does she ever implicate VBMC’s conduct. Id. at 555.

       The language of the report implies that O’Malley will offer her opinion on the merit

of the claim and on the applicable standards of care but ultimately mentions neither. As

discussed earlier, the court may not make any inferences in regard to the expert report.

See Wright, 79 S.W.3d at 52. Without making inferences, we find nothing in the four

corners of this report to suggest that O’Malley believes that appellees’ claims have any

merit. To the contrary, O’Malley’s language strongly implies that this case has no merit:

“I cannot fully say that the standard of care of Mrs. Battles was breached nor can I say it

was complied with.” That language specifically contradicts the requirement that the report

must assert that the claim has merit. See Scoresby, 346 S.W.3d at 557.

       Furthermore, O’Malley’s second report never affirmatively accused VBMC of doing

anything wrong. The report never addressed the issue of whether or not VBMC’s actions

caused harm to Rosalinda, never cited an instance where VBMC’s actions fell below the

standard of care, and never even indicated what the standard of care in this situation

would be.    Instead of affirmatively claiming that the suit has merit, O’Malley uses

speculative language that never truly implicates VBMC’s actions in a way to make them

liable. The amended report speculates as to what might have happened if certain steps



                                             8
were taken (what “could” have happened or what “may” have happened) but it never

asserts that VBMC’s actions actually fell below the standard of care. O’Malley asserts

that the subdural hemorrhage might have been identified if CT scans were performed

earlier, but O’Malley never claims that VBMC fell below the applicable standard of care

by performing the scans when it did. O’Malley comments that the CT scan could have

been performed earlier if the nurses reported Battles’s symptoms earlier but once again

fails to state whether failing to report symptoms earlier was breaching a standard of care.

The report does not establish any theory of liability that would allow appellees to prevail.

See Potts, 392 S.W.3d at 631. A report like the second one in this case is no report under

section 74.351. See Scoresby, 346 S.W.3d at 555. As such, VBMC’s obligation to object

was never even triggered and it was entitled to automatic dismissal. See Velandia, 359

S.W.3d at 679; Haskell, 363 S.W.3d at 759; Vasquez, 358 S.W.3d at 691.

       Even though it may be “impossible to draw precisely” the lines between an

adequate report, a deficient report, and no report at all, in the present case we conclude

that it was an abuse of discretion to find that O’Malley’s second report satisifed the

statutory threshold. See Jelinek, 328 S.W.3d at 542. We therefore conclude that the trial

court erred in denying VBMC’s motion to dismiss. We sustain VBMC’s sole issue.

                                     IV. CONCLUSION

       We reverse the order of the trial court order denying VBMC’s motion to dismiss;

render judgment dismissing Battles’s suit against VBMC with prejudice; and remand for




                                             9
a determination of attorney’s fees and costs owed to VBMC, as required by section

74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West, Westlaw through 2015

R.S.).


                                             NORA L. LONGORIA
                                             Justice



Delivered and filed the
25th day of June, 2015.




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