
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00037-CV


Mark D. Bogar, M.D., Appellant

v.

Dolores G. Esparza, Individually and as Administrator of the Estate of
Katherine G. Guerrero, Deceased; Fernando Guerrero; Sofia G. Butschy;
Gilberto Guerrero; Antonio Guerrero; Rosie G. Garza; Benito Guerrero;
Josey G. Selvera and Frances G. Faz, Appellees




FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY, NO. 82,917-A,
HONORABLE GUY S. HERMAN, JUDGE PRESIDING


D I S S E N T I N G   O P I N I O N

		The supreme court in Palacios enunciated two holdings:  (i) a trial court's decision
whether to dismiss a case under this statute is reviewed for abuse of discretion and (ii) to constitute
a good-faith effort to provide a fair summary of an expert's opinions, "an expert 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."  American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001) (predecessor statute).  In that case, the court found that the trial court did not abuse its
discretion in its ruling and reversed the court of appeals.  Based upon Palacios, I would hold that the
trial court did not abuse its discretion here.
		As the reviewing court, we are admonished that a trial court abuses its discretion if
it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.  See
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).  When reviewing a trial court's decision for
an abuse of discretion, we recognize that such discretionary choices are left to a court's judgment,
and its judgment is to be guided by sound legal principles.  Albemarle Paper Co. v. Moody, 422 U.S.
405, 416 (1975) (quoting United States v. Burr, 25 F.Cas. 30, 35 (CC Va. 1807) (Marshall, C.J.)). 
We may not substitute our own judgment for that of the trial court.  Bowie Mem'l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002).  While a trial court's failure to analyze and apply the law correctly
would constitute an abuse of discretion, Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), "[t]he
test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an
appropriate case for the trial court's action . . . it is a question of whether the court acted without
reference to any guiding rules and principles."  Downer v. Aquamarine Operators, Inc., 702 S.W.2d
238, 241-42 (Tex. 1985).  A trial court does not abuse its discretion merely because it decides a
discretionary matter differently than an appellate court would in a similar circumstance.  Id. at 242.
		The parties agree that Dr. Bogar was the physical medicine rehabilitation doctor in
charge of Ms. Esparza's care; he was the only doctor named in the lawsuit.  An autopsy established
that Ms. Esparza, who was admitted for post-operative hip surgery rehabilitation, died of an overdose
of Oxycodone and Vicodin.  After a hearing, the trial court expressly found the report to be sufficient
and denied the motion to dismiss. (1)
		Although the trial court's determination is not shielded from review, we may
not substitute our judgment for that of the trial court charged with a gatekeeping function in the first
instance under this statute.  Indeed, the trial court is charged not only with exercising its discretion
in affirming or denying the motion to dismiss, but the trial court may--in its discretion--grant a 30-day extension to cure any deficiency.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (West Supp.
2006).  Because the trial court here found the report to be sufficient--and not deficient or "no
report"--it did not consider whether to grant a discretionary extension to amend the report.
		Because (i) the standard of review recognizes that there is a spectrum of decisions that
are appropriate as long as the trial court does not act in an arbitrary or unreasonable manner or
without reference to guiding rules and principles, and (ii) the trial court acted in accord with the
supreme court's holdings in Palacios, (2) I would conclude that the trial court was guided by and
employed sound legal principles and did not abuse its discretion.  I would affirm the trial court's
order.
		Alternatively, because the trial court found the report to be sufficient and not deficient
or "no report," I would follow this Court's precedent in Austin Heart, P.A. v. Webb, No. 03-06-00607-CV, 2007 Tex. App. LEXIS 3600 (Tex. App.--Austin May 9, 2007) (no pet. h.), and remand
this cause for further proceedings to allow the trial court to exercise its discretion and determine
whether a 30-day extension should be granted. (3)


  
						Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed:   June 28, 2007
1.   The hospital settled and was dismissed from the lawsuit.
2.   In Palacios, the court faulted the expert report for its conclusory statement that the standard
of care required the hospital to have monitored Palacios more closely, restrain him more securely
or done something else entirely. The court stated:  "Knowing only that the expert believes that
American Transitional did not take precautions to prevent the fall might be useful if American
Transitional had an absolute duty to prevent falls from its hospital beds." Palacios, 46 S.W.3d at
880.  Here, the trial court may have concluded that the standard of care was apparent and the duty
clear from the report detailing the "toxic levels of oxycodone along with lethal levels of
propoxyphene" which caused the death.
3.   The majority opines that this alternative is inconsistent with my dissent in Austin Heart that
a remand is inappropriate where the report constitutes "no report."  It is not.  Here, the trial court
expressly found that the report was sufficient, and not "no report."  This is not a case in which the
trial court made no finding.  The majority has stepped into both shoes of the trial court: 
(i) overruling its determination that the report is sufficient and the litigation should go forward and
(ii) finding the report to be not just deficient, but "no report," thus foreclosing an opportunity to cure. 
It is the majority who engrafted this demarcation line on the statute in Austin Heart that even they
characterize as "elusive."  I am simply constrained to follow precedent.

