                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00146-CV

HAROLD BRUCE HAMILTON, M.D.
AND TEXAS NEUROLOGICAL &
PAIN INSTITUTE, P.A.,
                                                            Appellants
v.

TIMOTHY DURGIN,
                                                            Appellee



                            From the 19th District Court
                             McLennan County, Texas
                            Trial Court No. 2007-3898-1


                       MEMORANDUM OPINION


      Timothy Durgin filed suit against Dr. Harold Bruce Hamilton and Texas

Neurological & Pain Institute, P.A., alleging that the defendants were negligent in the

performance of lumbar fusion surgery on him, which resulted in a post-operative

infection leading to an infection of his bones. After receiving Durgin’s expert report, the

defendants moved for a dismissal of the suit pursuant to section 74.351(b) of the Texas

Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)
(Vernon 2008). The trial court denied the motion, and the defendants appealed. Id. §

51.014(9) (Vernon 2008). Finding that the trial court did not abuse its discretion in

denying the motion to dismiss, we affirm its order.

                                       THE ISSUES

        The      defendants   argue   that   the   trial   court   abused   its   discretion

because Durgin’s expert reports: 1) with respect to claim 1, negligence in performing the

surgery, fail to link the surgery performed by defendants with any specific injury

suffered by Durgin, i.e., a “causation” question; 2) with respect to claim 2, negligence in

providing post-surgical care, do not rely on the hospital’s records and are thus

speculative concerning a breach of the standard of care and fail to link the care with any

injury Durgin suffered; and 3) with respect to claim 3, negligence in treating the post-

operative infection, do not rely on the hospital’s records so as to have an accurate

factual basis for the opinion concerning a breach of the standard of care and fail to link

the care with any injury Durgin suffered. Durgin argues that the trial judge did not

abuse his discretion because the reports were adequate to meet the requirements of

chapter 74 of the Civil Practice and Remedies Code. See id. § 74.351(r)(6) (Vernon 2008).

                              SUFFICIENCY OF THE REPORTS

        When considering a motion to dismiss under Section 74.351, the issue for the trial

court is whether the report represents a good-faith effort to comply with the statutory

definition of an expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.

2001). An “expert report” means:

Hamilton, et al v. Durgin                                                             Page 2
        A written report by an expert that provides a fair summary of the expert’s
        opinions as of the date of the report regarding 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). To constitute a "good-faith effort," the

report must discuss the standard of care, breach, and causation with sufficient

specificity to fulfill two purposes: (1) to inform the defendant of the specific conduct the

plaintiff has called into question; and (2) to provide a basis for the trial court to

conclude that the claims have merit. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

        The trial court should look no further than the report itself, because all the

information relevant to the inquiry is contained within the document's four corners.

Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The report must include the expert's

opinion on each of the three elements that the statute identifies: standard of care,

breach, and causal relationship. Id.

        Although an expert report need not marshal all the plaintiff's proof, the expert

may not merely state conclusions about the required elements of standard of care,

breach, and causation. Bowie, 79 S.W.3d at 52. Rather, an expert must explain the basis

of his opinions and link his conclusions to the facts. Id. (citing Earle v. Ratliff, 998 S.W.2d

882, 890 (Tex. 1999)).

        We review a trial court's order on a motion to dismiss a claim for failure to

comply with the expert report requirements under an abuse-of-discretion standard.

Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. When reviewing matters committed

to the trial court's discretion, we may not substitute our own judgment for the trial

Hamilton, et al v. Durgin                                                                Page 3
court's judgment. See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989),

modified on other grounds by National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993).

        The defendants essentially argue the merits of Durgin’s claim, relying on

documents and information outside of the reports. After reviewing the reports, we

agree with Durgin that the trial court was justified in finding that they discuss the

standard of care, breach, and causation with sufficient specificity to fulfill the two

required purposes: (1) inform the defendants 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, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. Thus, the trial

court did not abuse its discretion in denying the defendants’ motion to dismiss.1

        Appellants’ issues are overruled, and the trial court’s order is affirmed.




                                                     BILL VANCE
                                                     Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed November 5, 2008
[CV06]




1Our conclusion would be the same if we did a de novo review of the expert reports, as we suggested
may be proper in Wooten v. Samlowski, ___ S.W.3d ___, ___ n.1, 2008 WL 2133072 at *1 n.1 (Tex. App.—
Waco May 21, 2008, pet. filed).

Hamilton, et al v. Durgin                                                                     Page 4
