

 
 

 
 
NUMBER 13-06-053-CV

COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
MIGUEL HERNANDEZ, M.D.,					          Appellant,
 
v. 

JULIOUS EBROM,						  		  Appellee.
 

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

 

MEMORANDUM OPINION ON REMAND


Before Chief Justice Valdez and Justices Yañez and Vela

Memorandum Opinion On Remand by Justice Vela


	This is an appeal from the denial of a motion to dismiss filed by appellant, Miguel
Hernandez, M.D., appellant, in a medical malpractice action brought by appellee, Julious
Ebrom.  On appeal, Dr. Hernandez asserts that the trial court abused its discretion in
denying his motion because Ebrom's expert report failed to comply with the requirements
of section 74.351 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351 (Vernon Supp. 2009).  We reverse and remand.
I. Background
	Ebrom filed suit against two defendants, Dr. Hernandez and McAllen Bone & Joint
Clinic, alleging medical malpractice.  He claimed that on August 2, 2002, Dr. Hernandez
performed arthroscopy with a partial medial menisectomy and valgus proximal tibial
osteotomy with bone allograft to his right knee, which included a plate with two cancellous
screws and two cortical screws.  On Ebrom's February 2, 2003 follow-up visit to Dr.
Hernandez, the doctor noted that the osteotomy was not working out, and that Ebrom
would need additional surgery.  Ebrom sought corrective surgery from another physician
and later filed suit against the two defendants.  Ebrom urged that the defendants were
negligent in failing to provide:  (1) appropriate pre-operative planning; (2) intra-operative
assessment; (3) exacting operative techniques; and (4) appropriate post-operative care. 
	Ebrom provided a letter submitted by Uwe Pontius, M.D., Ph.D., as his expert report. 
The report was originally attached to Ebrom's responses to requests for disclosure.  Dr.
Hernandez filed a motion to dismiss, alleging that Ebrom failed to timely file a proper expert 
report.  On January 19, 2005, Ebrom notified the defendants that he intended to rely upon
the letter that was filed in response to the requests for disclosure as his required statutory
expert report.   
	McAllen Bone & Joint Clinic and Dr. Hernandez later filed an amended motion to
dismiss, stating that the expert report did not identify either defendant by name and was
conclusory with respect to causation.  The trial court granted the Clinic's motion, but denied
Dr. Hernandez's motion to dismiss.  Thereafter, the trial court entered an agreed order of 
nonsuit as to Dr. Hernandez who then filed a notice of appeal.  This Court issued a
memorandum opinion dismissing the appeal as moot.  The supreme court reversed this
Court's opinion and remanded the case to this Court for a determination on the merits. (1) 
Even though Ebrom has nonsuited his claims against Dr. Hernandez, we are required to
reach the merits of Dr. Hernandez's motion to dismiss because Dr. Hernandez has sought
attorney's fees pursuant to section 74.351(b)(1), which he is only entitled to if Ebrom's
report did not comply with the statutory requirements.  See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(b)(1) (Vernon Supp. 2009).  
II.  Standard of Review and Applicable Law
	The standard of review of a trial court's order either dismissing or refusing to dismiss
a medical malpractice claim for failure to comply with the expert report provisions is abuse
of discretion.  Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).  An abuse of discretion
occurs when a trial court acts arbitrarily or unreasonably and "without reference to any
guiding rules or principles." Walker, 111 S.W.3d at 62.  A clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion.  Baylor Univ. Med.
Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.-Dallas 2007, pet. denied).
	In our review of an expert report, we are limited to the report's contents, contained
within the four corners of the report, in determining whether the report manifests a good
faith effort to comply with the statutory definition of an expert report.  Palacios, 46 S.W.3d
at 878; see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (requiring that the trial court
"grant a motion challenging the adequacy of the expert report only if appears to the court,
after hearing, that the report does not represent an objective good faith effort to comply"
with the statutory definition).  The report "need not marshal all the plaintiff's proof."
Palacios, 46 S.W.3d at 878.  If the expert report puts the defendant on notice of the
specific conduct complained of and provides the trial court a basis on which to conclude
that the claims have merit, the report represents a good-faith effort to comply with the
statute. 
	An expert report is a written report by an expert that provides a fair summary of the
expert's opinions regarding applicable standards of care, the manner in which the care
rendered failed to meet the standards, and the causal relationship between that failure and
the injury, harm, or damages claimed.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). 
The expert report  must present the causal relationship between the health care provider's
failure and the injury, harm, or damages claimed.  Id.  Causation is established when "the
negligent act or omission is shown to be a substantial factor in bringing about the harm and
without which the harm would not have occurred." Kramer v. Lewisville Mem'l Hosp., 858
S.W.2d 397, 400 (Tex. 1993).
	What is relevant for purposes of the expert report is that the report specifically
identify the person whose conduct the plaintiff is calling into question and show how that
person's conduct constituted negligence.  Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d
877, 879 (Tex. App.-Dallas 2006, no pet.).  When a defendant is not identified in some
manner within the four corners of the report, the report is deficient as to that defendant. 
Rivenes v. Holden, 257 S.W.3d 332, 338 (Tex. App.-Houston [14th Dist.] 2008, pet.
denied).  When a plaintiff sues more than one defendant, the expert report must set forth
the standard of care for each defendant and explain the causal relationship between each
defendant's individual acts and the injury, i.e., "[c]ollective assertions of negligence against
various defendants are inadequate."  Taylor v. Christus Spohn Health Sys. Corp., 169
S.W.3d 241, 244 (Tex. App.-Corpus Christi 2004, no pet.); see CHCA Mainland L.P. v.
Burkhalter, 227 S.W.3d 221, 227 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
	An opinion based upon one assumption or conclusion built upon another is also not
sufficient.  Hagedorn v. Tisdale, 73 S.W.3d 341, 351 (Tex. App.-Amarillo 2002, no pet.).
A report should explain how the defendant's action or inaction caused injury.  Bowie Mem'l
Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002).  A conclusory report does not meet the
statutory test because it does not satisfy Palacios.  Id.  A court may not fill in gaps in a
report by drawing inferences or guessing what the expert meant or intended.  Austin Heart,
P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.-Austin 2007, no pet.).  Furthermore,
causation may not be inferred.  Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.-El
Paso 2008, no pet.).
 III. Analysis
A.  Waiver Issue
	Ebrom argues for the first time in this appeal on remand that Dr. Hernandez waived
his objections to any alleged deficiencies in the expert report because he filed his expert
report on November 23, 2004, and defendants did not file their motion to dismiss until
January 12, 2005, a date more than twenty-one days after service of the expert report. 
Tex. Civ. Prac. & Rem. Code Ann. § 74.341(a). (2)  It is undisputed that Dr. Hernandez did
not file objections within twenty-one days of receiving the letter Ebrom claimed as his
expert report.  However, Dr. Hernandez has consistently argued, from the original dismissal
hearing, until now that he never received a document that was designated an expert report
under chapter 74.  Counsel for Dr. Hernandez stated that Ebrom designated a trial expert
and subsequently indicated that it was the trial expert's report was filed pursuant to section
74.351.  Ebrom argued that Dr. Pontius's letter was his statutory report.   
	Counsel for Ebrom did not argue or object previously that Dr. Hernandez waived any
deficiencies to the report or its contents by not objecting to Dr. Pontius's letter report within
twenty-one days.  In essence, Ebrom has waited five years to raise his complaint that Dr.
Hernandez waived his objections to the deficiencies in the expert report pursuant to section
74.351(a).  We do not decide, here, whether Dr. Hernandez should have objected within
twenty-one days because Ebroms's objection comes too late.  Ebrom also suggests that
the trial court might have denied Dr. Hernandez's motion to dismiss because it took into
consideration Dr. Hernandez's failure to comply with the twenty-one day deadline for filing
objections.  However, it is highly unlikely that the trial court denied Dr. Hernandez's motion
to dismiss for that reason because it granted McAllen Bone & Joint Clinic's motion to
dismiss.  It would be inconsistent for the trial court to grant McAllen Bone & Joint Clinic's
motion to dismiss and deny Dr. Hernandez's motion for failure to object to the twenty-one
day deadline.
	Dr. Hernandez was not required to object within twenty-one days if no report had
been filed.  He has continuously taken that position since the hearing on the motion to
dismiss on July 5, 2005.  Because Ebrom did not object to Dr. Hernandez's untimely
objections in the trial court at the time the court ruled on the sufficiency of the reports, and
because Ebrom did not argue waiver in the first appeal or the appeal to the supreme court,
we will not consider it now.  The objection comes too late and is waived.  See Hansen v.
Starr, 123 S.W.3d 13,18 (Tex. App.-Dallas 2003, pet. denied) (stating that in reviewing a
trial court's judgment, the appellate court can only consider what was before the trial court
at the time; waiver was not asserted in plaintiff's response to the motion to dismiss); see
also San Jacinto Methodist Hosp. v. Carr, No. 01-07-00655, 2008 WL 2186473, at *3 (Tex.
App.-Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.) (same).  
B. Adequacy of the Report 
	Dr. Hernandez urges that the report does not sufficiently identify him because he
is not named in the report.  Ebrom argues that  Dr. Hernandez is the only physician named
in his pleadings, so, presumably all criticisms are about him, and it is unnecessary to name
him.  He urges us to look outside the four corners of the report to determine its adequacy.
The entire report consists of two short paragraphs, as follows:  
	I am a board certified orthopaedic surgeon practicing in San Antonio, Texas. 
I have previously performed and continue to perform valgus opening wedge
osteotomy of the tibia using Arthrex opening wedge ostcotomy system.
 
	I have reviewed the records from the above case.  The standard of care in
the treatment of medial knee arthritis with the Arthrex opening wedge
osteotomy system is to use a trocortical pelvic bone graft to provide sufficient
strength and stability to allow bone healing in the open wedge position.  In
review of this case the use of an insufficient bone graft called the Cloward
Plug, which is weaker bicortical iliac crest bone graft rather than the
applicable standard which is tricortical iliac crest bone graft, has breached
the standard of care.  The patient's morbid obesity combined with an
insufficient bone graft in reasonable medical opinion is the cause of his
injury.  The injury is collapse of the tibia osteotomy site and thus failure to
heal in the corrected position.

	A plaintiff's allegation that a physician is negligent is not a substitute for the
requirement that an expert report be supplied demonstrating that the expert is of the same
opinion.  Here, there were two defendants named in Ebrom's pleadings--Dr. Hernandez
and McAllen Bone & Joint Clinic.  If a plaintiff sues more than one defendant, the expert
report must set forth the standard of care for each defendant and explain the causal
relationship between each defendant's individual acts and the injury.  Taylor, 169 S.W.3d
at 244.  Here, the report did not name either defendant.  It does not state who performed
the surgery.  It never states what Dr. Hernandez did or failed to do that caused Ebrom's
injuries.  While the case name is mentioned in the report, (3)  the report never mentions either
defendant in the body of the report and is, therefore, insufficient.  Baylor Univ. Med. Ctr.
v. Biggs, 237 S.W.3d at 919 (determining that the trial court abused its discretion in
denying hospital's motion to dismiss because expert reports did not refer to hospital by
name in their reports other than to say they reviewed hospital records); Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (stating
that expert report must provide specific information about what each defendant would have
done differently); Garcia v. Marichalar, 198 S.W.3d 250, 254 (Tex. App.-San Antonio
2006, no pet.) (noting that although plaintiff's allegations focus on a single incident, the
statute nevertheless requires that an expert report "explain how the care rendered by the
physician failed to meet the applicable standard of care and the causal relationship
between the failure and the injury suffered by the claimant").
	Dr. Hernandez also urges that the report was inadequate because it is insufficient
with respect to causation.  While the report states the bone graft used was insufficient, it
does not state that it was Dr. Hernandez who made the decision to use a bicortical, rather
than tricortical, bone graft.  A report must provide "specific information about what the
defendant should have done differently."  Palacios, 46 S.W.3d at 880.  The report does not
state why a bicortical graft is improper or why its use is below the standard of care.  The
purpose of the expert report requirement is to inform the defendant health care provider
of the specific conduct called into question and provide a basis for the trial court to
conclude that the plaintiff's claims have merit.  The report merely suggests that the wrong
graft was used.  It does not say why or give any specifics regarding how the bone graft that
was used caused the damages.  Although a plaintiff need not marshal all of its evidence
through the preliminary statutory reports, more is required than was set forth in Dr.
Pontious's conclusory report in this case.  Because the report did not name Dr. Hernandez
and was conclusory with respect to causation, the trial court should have granted Dr.
Hernandez's motion for dismiss.  We sustain appellant's issue.
IV.  Remand to Cure Defects
			Ebrom urges in his brief that this Court should remand the case to the trial court for
further consideration to cure the defects in the report because we have determined that his
report was deficient.  This case was appealed to this Court after the parties had agreed to
nonsuit Ebrom's claims against Dr. Hernandez.  Ordinarily, when a court of appeals rules
a report deficient, one thirty-day extension to cure the report may be granted by the trial
court upon remand.  Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex. 2006); Fulp v.
Miller, 286 S.W.3d 501, 509 (Tex. App.-Corpus Christi 2009, no pet.) (op. on rehearing). 
In Fulp, this Court held that because the plaintiff had nonsuited his claims against the
physician, the plaintiff was no longer a party and it would be impossible for him to cure the
deficient report.  Fulp, 286 S.W.3d at 509.  However, the filing of a nonsuit does not
extinguish a defendant's motion for sanctions.  Villafani v. Trejo, 252 S.W.3d 466, 470
(Tex. 2008); Fulp, 268 S.W.3d at 509.  In his motion to dismiss, Dr. Hernandez requested
dismissal of Ebrom's lawsuit and costs and attorney's fees.  Fulp, 286 S.W.3d at 510. 
Therefore, we remand to the trial court to dismiss Ebrom's claims with prejudice and to
determine reasonable attorney's fees.  
V.  Conclusion
	We reverse the order of the trial court denying Dr. Hernandez's motion to dismiss
and remand to the trial court to dismiss Ebrom's case against Dr. Hernandez with prejudice
and to assess reasonable attorney's fees.


							Rose Vela
							Justice

Delivered and filed the 6th  
day of May, 2010.
1. Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2008).
2. "Each defendant physician or health care provider whose conduct is implicated in a report must file
and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served,
failing which all objections are waived."  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).  
3. The report states "RE  Cause No. C-1292-04-H, Julious Ebrom v. Miguel Hernandez, et al; pending
in the 389th Judicial District Court, Hidalgo County, Texas".
