                              NUMBER 13-10-00468-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

JORGE DE LA GARZA, M.D.,                                                       Appellant,


                                             v.

GARY E. SCHRUZ,                                                                Appellee.


                    On appeal from the 275th District Court
                          of Hidalgo County, Texas.


                          MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Garza
       When a medical malpractice plaintiff files an expert report that absolves the

defendant doctor of any liability, is it even a ―report‖ at all? That is the question posed in

the instant appeal, in which appellant Jorge De La Garza, M.D., argues that the trial

court should have dismissed the claims brought against him by appellee Gary E.
Schruz. We dismiss the appeal for want of jurisdiction.

                                              I. BACKGROUND

       On October 30, 2009, Schruz sued Dr. De La Garza and Doctors Hospital at

Renaissance (―Doctors Hospital‖),1 alleging medical negligence in connection with the

care and treatment provided to Schruz during and after undergoing heart surgery. On

February 26, 2010, one day prior to the statutory deadline, Schruz filed a purported

medical expert report pursuant to chapter 74 of the civil practice and remedies code.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). The report, authored

by Mitchell Brooks, M.D., consists of an initial three-page analysis of Schruz‘s case as

well as a two-page ―Addendum,‖ also dated and served on February 26, 2010. The

initial analysis states in part:

       The clinical records currently available for review essentially document the
       admission and treatment of [Schruz] for ischemic heart disease that
       resulted in the performance of a coronary artery bypass graft x4. . . .
       Jorge De La Garza, M.D. performed the aforementioned surgery on
       November 19, 2007. The patient was transferred to the intensive care unit
       that same day at approximately 12:15 PM. What appears to be at issue in
       this case is whether or not a standard of care was violated with respect to
       the development and subsequent treatment of a decubitus ulcer. Based
       on my review and analysis of the clinical records it would appear that such
       a standard of care was violated on the part of the attending surgeon,
       Jorge De La Garza, M.D. in that he failed to address the issue of the
       stasis ulcer in a timely manner, such that further breakdown resulted in a
       surgical debridement and additional care to the ulcer site.

                  ....

       At this point in time I am unable to identify any documentation that
       indicates that Dr. De La Garza took any action with respect to actively
       treating the decubitus ulcer until November 26, 2007. This delay[,] in my
       opinion[,] probably resulted in the surgical treatment of the decubitus ulcer
       that subsequently occurred as a result of the failure to address the issue in
       a timelier manner.


       1
           Doctors Hospital is not a party to this appeal.

                                                       2
              ....

       There is additional information that has currently been made available to
       me and I am present[ly] aware of, the content of which is not included in
       this report. This information includes progress notes from multiple
       physicians during that time frame between November 20, 2007 and
       November 26, 2007. If I am able to ascertain whether or not Dr. De La
       Garza addressed the issue of the pressure ulcer then the clinical picture
       and treatment will become clearer. If the records indicate that the
       attending physician initiated no treatment then the opinion expressed
       herein will hold. . . .

The ―Addendum,‖ which directly follows the initial analysis and forms pages four and

five of Dr. Brooks‘s report, states in part:

       I have now had the opportunity to review additional documents with
       respect to the above referenced case. These include the ―Physician‘s
       Order Sheets‖ during the dates of stay at the [hospital] as well as the Daily
       Progress Notes that were created by the large number of physicians
       attending this patient.

       It would appear that a triple antibiotic ointment or cream was ordered on
       November 22, 2007 to be applied twice daily to the lesion. . . .
       Furthermore, a skin care consultation was ordered on November 24, 2007
       and after a review of the wound care consult dated November 26, 2007, it
       would appear that the patient had an air mattress prior to that date to
       address the possibility of a sacral decubitus ulcer and furthermore, the
       record also indicates that there were numerous diaper changes started on
       or about November 25, 2007, presumably to make sure the skin in the
       perineal area would not become moist. Whoever performed the wound
       care consult (I am unable to read the signature) further indicated the need
       to change the patient‘s mattress. In summation then, it would appear that
       the physician component of the care was in all probability not
       unreasonable with respect to its timing and the actual treatment
       rendered. . . .

Dr. Brooks goes on to state that it ―appear[s] that there may very well have been some

significant nursing procedures that were violated with respect to communication and the

obtaining of a wound care consultation. . . .‖ Nevertheless, according to Dr. Brooks,

―[f]rom the physician perspective, it would thus appear at this point in time that the

sequence of events and the apparent treatment does not appear to be unreasonable or

                                               3
outside the standard of care of the community in which the patient was treated.‖

       On March 12, 2010, Dr. De La Garza moved to dismiss the suit on grounds that

Dr. Brooks‘s report was insufficient. Dr. De La Garza further contended that the report

did not actually constitute a ―report‖ under the statutory definition, and that Schruz was

therefore not entitled to any extension of time to file an amended report.            See id.

§ 74.351(b), (c). Schruz responded by claiming that the report was sufficient or, in the

alternative, that the trial court should grant an extension of time to cure any deficiency in

the report. After a hearing, the trial court determined on August 3, 2010 that the report

was ―deficient‖—rather than ―no report‖—and granted Schruz‘s request for a thirty-day

extension of time to file a sufficient report. 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

       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



                                              4
Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.)

(applying abuse of discretion standard to trial court‘s denial of motion to dismiss);

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

(same); see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878

(Tex. 2001) (applying abuse of discretion standard to trial court‘s granting of motion to

dismiss). 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.

Palacios, 46 S.W.3d at 878.




                                           5
       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

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

       In the ―Addendum‖ attached to his report, Dr. Brooks stated that ―the physician

component of the care [given to Schruz] was in all probability not unreasonable‖ and

that ―[f]rom the physician perspective, . . . the apparent treatment does not appear to be

unreasonable or outside the standard of care of the community in which the patient was

treated.‖ Neither party disputes that these statements render the report insufficient to

satisfy the requirements of the expert report statute, in part because the report did not

―provide a basis for the trial court to conclude that the claims [against Dr. De La Garza]

have merit.‖ Bowie Mem’l Hosp., 79 S.W.3d at 52. The sole question for this Court,



                                            6
then, is whether Dr. Brooks‘s report was so insufficient as to constitute no report—in

other words, an ―absent report‖—such that Schruz would not be entitled to a thirty-day

extension of time to cure any deficiencies.

       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 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).



                                              7
       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 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.




                                             8
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



                                              9
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 (―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.

       Despite having reviewed several cases presenting variations on the ―no report v.

deficient report‖ theme, a majority of the high Court has not yet defined exactly when a

report constitutes no report at all.     And, although several courts of appeals have

considered whether a document purporting to be an expert report is in fact worthy of the




                                             10
name,2 no court has yet been asked, as we are here, whether a document disavowing

any liability on the part of the defendant is ―no report‖ at all. We conclude that, under

the applicable supreme court precedent, such a document must instead be considered

―merely deficient,‖ and a claimant filing such a document may be given a thirty-day

extension to cure the deficiencies under the statute.

        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




        2
            Compare Bogar v. Esparza, 257 S.W.3d 354, 364-69, 373 (Tex. App.–Austin 2008, no pet.)
(concluding that the purported expert report at issue was no report as to appellant because it failed to
identify appellant, failed to describe the applicable standard of care, failed to describe how appellant may
have breached the standard of care, and, consequently, failed to implicate any person‘s conduct),
Rivenes v. Holden, 257 S.W.3d 332, 338-39 (Tex. App.–Houston [14th Dist.] 2008, pet. denied)
(determining that a purported expert report did not implicate appellant‘s conduct and was not a statutory-
compliant expert report as to appellant because it offered no opinions concerning appellant's conduct, it
failed to discuss how the care rendered by appellant failed to meet the applicable standard of care, and it
failed to set forth how appellant‘s failure to meet the standard of care caused plaintiff to suffer injury,
harm, or damages), and Apodaca v. Russo, 228 S.W.3d 252, 255-58 (Tex. App.–Austin 2007, no pet.)
(holding that a purported expert report was no report as to appellee because it failed to mention appellee
and it failed to discuss how the care rendered by appellee did not meet the applicable standard of care or
how appellee's failure caused the patient to suffer injury, harm, or damages) with Scoresby v. Santillan,
287 S.W.3d 319 (Tex. App.–Fort Worth 2009, pet. granted) (finding that ―this is not an absent report
case . . . in which we may entertain an interlocutory appeal from the trial court‘s denial of a motion to
dismiss because no report has been served‖), Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282-83 (Tex.
App.–Austin 2007, no pet.) (concluding that a purported expert report, which did not link the doctor‘s
conduct with the expert‘s conclusions, was nevertheless a ―merely deficient‖ report, in part because of the
report‘s ―tenor‖ and the fact that there was only one physician defendant), and Cook v. Spears, 275
S.W.3d 577, 580-82 (Tex. App.–Dallas 2008, no pet.) (finding purported expert reports to be merely
deficient, and not absent, in part because ―the required elements, while deficient, were not totally absent
from the reports such that appellees could not cure the deficiencies if granted an extension‖).


                                                    11
lacking‖ as to merit immediate dismissal—but that view has not been endorsed by a

majority of the Court.3 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 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.‖)).

        Here, although Dr. Brooks‘s purported report undisputedly failed to state that Dr.

De La Garza had breached any standard of care, the document was in fact timely

served.     Because neither the supreme court nor this Court has recognized the

possibility that a timely filed report may be, in effect, no report, we have no choice but to

conclude that this is a ―deficient report‖ case, not an ―absent report‖ case.                           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). Accordingly, the trial court did not abuse its discretion in


        3
          Arguably, even if the view espoused by Justices Johnson and Willett was controlling, Dr.
Brooks‘s report would still be considered ―deficient‖ and not ―absent‖ or ―so-deficient-it‘s-absent,‖ because
the report does contain some of the elements prescribed by section 74.351. Cf. In re Watkins, 279
S.W.3d 633, 639 (Tex. 2009) (orig. proceeding) (Willett, J., concurring) (―If a document bears zero
resemblance to the statute—containing nothing that makes a report a report—it cannot receive an
extension.‖).

                                                    12
denying Dr. De La Garza‘s motion to dismiss and granting Schruz a thirty-day extension

to file a compliant report.4 We overrule Dr. De La Garza‘s issue.



                                               III. CONCLUSION

        In light of our conclusion that the trial court did not err in finding Dr. Brooks‘s

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

Dissenting Memorandum Opinion by Justice Rose Vela.

Delivered and filed the
2nd day of June, 2011.




        4
           The dissent states, without reference to authority, that ―if a report that fails to mention the
conduct of a physician is no report as to that physician, then a report that absolves the physician of
negligent conduct is also ‗no report.‘‖ But, as noted, the Texas Supreme Court has yet to acknowledge
the possibility that a report, while not absent, might be so deficient that the trial court loses its discretion to
grant a thirty-day extension under subsection 74.351(c). See Scoresby, 287 S.W.3d at 324. It is not the
function of this Court to abrogate or modify established precedent; that function lies solely with the
supreme court. Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002). We refuse, as the dissent recommends, to entertain the possibility of a report being ―so-deficient-
it‘s-absent‖ when there is no actual supreme court case law to support that position.

                                                       13
