                                                                                ACCEPTED
                                                                           13-14-00756-CV
                                                             THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                       3/2/2015 4:08:08 PM
                                                                         DORIAN RAMIREZ
                                                                                    CLERK

                    CAUSE NO. 13-14-00756-CV

                 IN THE COURT OF APPEALS         FILED IN
                                         13th COURT OF APPEALS
           FOR THE THIRTEENTH JUDICIAL   DISTRICT
                                      CORPUS  CHRISTI/EDINBURG, TEXAS
        SITTING AT CORPUS CHRISTI - EDINBURG,
                                          3/2/2015TEXAS
                                                   4:08:08 PM
                                               DORIAN E. RAMIREZ
                                                    Clerk

VALLEY BAPTIST MEDICAL CENTER                           APPELLANT

                                VS.

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


                      APPELLANT’S BRIEF

          ON APPEAL FROM CAUSE NO. 2013-DCL-04983
           IN THE 444TH JUDICIAL DISTRICT COURT
                OF CAMERON COUNTY, TEXAS


     SCOTT T. CLARK
     ROGER W. HUGHES
     WILL HUGHES
     ADAMS & GRAHAM, L.L.P.
     P.O. Drawer 1429
     Harlingen, TX 78551-1429
     Phone: (956) 428-7495        ORAL ARGUMENT IS
     Fax: (956) 428-2954          REQUESTED

Attorneys for Appellant VALLEY BAPTIST MEDICAL CENTER
               IDENTITY OF THE PARTIES AND COUNSEL


1.   Appellant:


               Defendant                                    Attorney
 Valley Baptist Medical Center-               Scott T. Clark
 Brownsville                                  sclark@adamsgraham.com
                                              Roger W. Hughes
                                              rhughes@adamsgraham.com
                                              Will Hughes
                                              willhughes@adamsgraham.com
                                              ADAMS & GRAHAM, L.L.P.
                                              P. O. Drawer 1429
                                              Harlingen, TX 78551-1429
                                              Phone (956) 428-7495
                                              Fax (956) 428-3954

2.   Appellees


                 Plaintiffs                                Attorneys
 Rosalinda Battles, Gerald Battles, as        Robert Garza
 Surviving Spouse of Rosalinda                jrobert@rgarzalaw.com
 Battles, Amanda Giselle Battles, as          Myles R. Garza
 Surviving Child of Rosalinda Battles         myles@rgarzalaw.com
 and Jeremy Blake Battles, as                 Law Office of Robert Garza, P.C.
 Surviving Child of Rosalinda Battles         1200 E. Harrison St.
                                              Brownsville, TX 78520
                                              Phone (956) 544-1111
                                              Fax (956) 544-1108




                                         ii
                                        TABLE OF CONTENTS

                                                                                                              Page:

IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         A.       When the purported report is “no report,” no extension
                  is permitted and the trial court must dismiss. . . . . . . . . . . . . . . . . . . . 1

         B.       Nurse O’Malley’s first report stated no opinions
                  and was “no report.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         C.       Caselaw demonstrates the trial court was obligated
                  to grant VBMC’s first motion to dismiss. . . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                         iii
                                   TABLE OF AUTHORITIES

                                                                                                         Page:
Cases:
Avila v. Jimenez, No. 13-13-00101-CV, 2013 WL 1500328
       (Tex. App.–Corpus Christi 2013, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 3

Badiga v. Lopez, 253 S.W.3d 204 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fung v. Fischer, 365 S.W.3d 507
      (Tex. App.–Austin 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Haskell v. Seven Acres Jewish Senior Care Servs., Inc.,
     363 S.W.3d 754 (Tex. App.–Houston
     [1st Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5-7

Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255
     (Tex. App.–San Antonio 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9

Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 2

Reddy v. Hebner, 435 S.W.3d 323
     (Tex. App.–Austin 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685
     (Tex. App.–San Antonio 2011, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) . . . . . . . . . . . . . . . . . . 1, 2, 5, 9

Sinha v. Thurston, 373 S.W.3d 795
      (Tex. App.–Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 3

Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston
      [14th Dist.] 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                       iv
                            STATEMENT OF THE CASE

      This is an expert report appeal in a healthcare liability claim. Appellees

asserted medical negligence claims against appellant Valley Baptist Medical Center

(VBMC) and provided an expert report from a nurse, Erin K. O’Malley. C.R. 5-15,

40-48; R.R. IV, X-1. App. 1. VBMC challenged the report and moved to dismiss.

C.R. 35-38. The trial court granted a thirty day extension, and Nurse O’Malley

provided a revised report. C.R. 51-52, 63-66; R.R. IV, X-2. App. 2. VBMC again

moved to dismiss, and that motion was denied. C.R. 53-59, 75. App. 3.

                               ISSUES PRESENTED

1.    Was the first report from plaintiffs’ expert, Nurse Erin K. O’Malley, “no

      report” because it:

      a)    failed to say anything about the standard of care for VBMC;

      b)    failed to say anything about how VBMC violated any standard of care;

      c)    failed to say anything about how any breach of a standard of care by

            VBMC caused the death of Ms. Battles; and

      d)    failed to offer any opinion opinion that appellees’ claims have merit?

2.    If the first report was “no report,” did the trial court have discretion to grant an

      extension to cure deficiencies in the report, or was the trial court obligated to

      grant VBMC’s motion to dismiss?




                                           v
                            STATEMENT OF FACTS

      On July 24, 2013, appellees sued Valley Baptist Medical Center (VBMC),

alleging that insufficient post-surgery monitoring of Rosalinda Battles caused

Battles’s death. C.R. 5. On November 21, 2013, VBMC received appellees’

purported expert report and C.V. from Nurse Erin K. O’Malley. C.R. 40. App. 1.

Nurse O’Malley wrote that she had reviewed an autopsy report, lab reports, and

medical records “regarding Mr. Bradford” (sic). C.R. 42; R.R. IV, X-1.

      The remainder of Nurse O’Malley’s report stated:

      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. C.R. 42; R.R. IV, X-1; App. 1.

Nurse O’Malley’s report made no other comment about the care provided to Ms.

Battles. C.R. 42; R.R. IV, X-1; App. 1.

      VBMC filed objections to Nurse O’Malley’s report and a motion to dismiss.

                                          vi
C.R. 35. Appellees filed no response to VBMC’s motion to dismiss. The trial court

found that the report was deficient and granted a thirty day extension to cure the

deficiencies. C.R. 51-52; App. 2.

      On February 7, 2014, appellees provided another report from Nurse O’Malley.

C.R. 65; R.R. IV, X-2. This second report added a section titled “Findings,” but even

this second report conceded “I cannot fully say that the standard of care concerning

the care of Mrs. Battles was breached.” C.R. 65; R.R. IV, X-2.

      On March 12, 2014, VBMC filed objections to this second report and again

urged a motion to dismiss. C.R. 53. Appellees responded by arguing that VBMC’s

objections to the second report were untimely. C.R. 67.

      As of December 3, 2014, the trial court had not yet ruled, and a status hearing

was held on the motion to dismiss. R.R. III, 5. At that hearing, the court invited

further arguments on the motion to dismiss. R.R. III, 7. VBMC argued that Nurse

O’Malley’s first report was “no report,” and the case should be dismissed on that

basis. R.R. III, 8-11. On December 10, 2014, the trial court denied VBMC’s second

objections and motion to dismiss. C.R. 75; App. 3.




                                         vii
                       SUMMARY OF THE ARGUMENT

      This appeal concerns the trial court’s abuse of discretion with regard to Nurse

O’Malley’s first report and VBMC’s first motion to dismiss.            Because Nurse

O’Malley’s first report was “no report,” the trial court had no discretion to grant an

extension of time to cure the report, but rather was obligated to grant the first motion

to dismiss. The court’s erroneous extension does not cure this abuse of discretion, and

the timeliness of VBMC’s second motion to dismiss is a moot issue.

      Texas law distinguishes between deficient expert reports and purported reports

that are really no report at all. A thirty day extension may be granted to cure a

deficient report, but when the purported report is “no report,” then no extension is

permitted and the trial court has no option but to grant a motion to dismiss. Because

Nurse O’Malley’s first report never asserted VBMC did anything wrong, did not

implicate the conduct of any agent of VBMC, and gave no indication that appellees’

claim had merit, it was “no report” and the trial court was required to grant the motion

to dismiss rather than allow a thirty day extension.

                                    ARGUMENT

A.    When the purported report is “no report,” no extension is permitted and
      the trial court must dismiss.

      A document qualifies as an expert report only if it contains a statement of

opinion by an individual with expertise indicating that the claim asserted by the

plaintiff against the defendant has merit. Scoresby v. Santillan, 346 S.W.3d 546, 549

                                           1
(Tex. 2011), App. 4. An extension to cure deficiencies in a report may only be

granted if the report contains the opinion of an individual with expertise that the claim

has merit, and if the defendant’s conduct is implicated. Id. at 557, App. 4. A

document that fails to address the statutorily mandated elements set forth in Chapter

74 constitutes no expert report at all. Ogletree v. Matthews, 262 S.W.3d 316, 323

(Tex. 2007) (Willett, J., concurring).

      If no expert report is timely served, the denial of a motion to dismiss is

appealable, even if the court grants an extension. Scoresby, 346 S.W.3d at 555; citing

Badiga v. Lopez, 253 S.W.3d 204, 207-08 (Tex. 2008). The Medical Liability Act

does not authorize an extension if no report is timely served. Scoresby, 346 S.W.3d

at 555; Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 761

(Tex. App.–Houston [1st Dist.] 2012, no pet.). Granting an extension not authorized

by section 74.351 does not preclude an appeal. Scoresby, 346 S.W.3d at 555, App.

4.

      If the document never asserts that anyone did anything wrong, it cannot receive

an extension. Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255, 258 (Tex.

App.–San Antonio 2012, no pet.) quoting Scoresby, 346 S.W.3d at 558 (Willet, J.,

concurring). If the trial court responds to a motion to dismiss by erroneously granting

an extension, the defendant may appeal after the denial of a second motion to dismiss.

See Laredo Tex. Hosp., 363 S.W.3d at 258-59 (erroneous extension was not



                                           2
immediately appealable, but appellate court ordered dismissal on appeal after denial

of second motion to dismiss because initial report was “no report”); cf. Avila v.

Jimenez, No. 13-13-00101-CV, 2013 WL 1500328 at *2-3 (Tex. App.–Corpus Christi

2013, pet. denied) (extension was granted, second motion dismiss was denied and

appeal then taken; court considered contention that pre-extension report was “no

report”).

      A report that does not implicate the conduct of a defendant does not constitute

an expert report as to that defendant. Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex.

App.–Austin 2014, pet. filed); Sinha v. Thurston, 373 S.W.3d 795, 800 (Tex.

App.–Houston [14th Dist.] 2012, no pet.). When the purported report does not

constitute an expert report as to a defendant, the trial court does not have any

discretion to deny the defendant’s motion to dismiss. Id.

      The 21-day deadline for objecting to the sufficiency of an expert report is only

triggered if the report implicates the defendant. Reddy, 435 S.W.3d at 328. If what

the plaintiff provides is “no report,” then the defendant’s obligation to object to the

report is never triggered. Haskell, 363 S.W.3d at 761.

B.    Nurse O’Malley’s first report stated no opinions and was “no report.”

      Nurse O’Malley’s first report was the kind of document that is “no report.” The

report simply described events during Ms. Battles’s stay at VBMC, without comment

on what should or should not have been done during the course of her care. C.R. 42;



                                          3
R.R. IV, X-1; App. 1.

      The only portion of the report that addresses Ms. Battles’s care, the

“Summary,” begins by noting that a cholecystectomy was performed without incident,

and the patient’s vital signs remained stable throughout the procedure and in post-

operative care. C.R. 42; R.R. IV, X-1; App. 1.

      It then notes that around 5:30 pm the patient started complaining of headaches,

nausea, and vomiting. C.R. 42; R.R. IV, X-1; App. 1. The report does not say that

any misconduct by VBMC was responsible for the headaches, nausea, and vomiting,

nor does it say what VBMC should have done, or should not have done, in response

to these symptoms. C.R. 42; R.R. IV, X-1; App. 1.

      Next the report says at 6:12 pm the patient exhibited seizure activity, but,

again, the report does not say that any misconduct by VBMC was responsible for the

seizure activity, nor does it say what VBMC should have done, or should not have

done, in response to this seizure activity. C.R. 42; R.R. IV, X-1; App. 1.

      Next the report says the patient was taken for CT scans, but the CT scans

showed no problems. C.R. 42; R.R. IV, X-1; App. 1. The report makes no comment

about whether it was appropriate to conduct the CT scans, or what, if anything, should

have been done in response to the results of the CT scans.

      The report concludes by saying the patient developed a sub arachnoid and

subdural hemorrhage, which caused cerebral edema, hemorrhage, necrosis, herniation



                                          4
at the brain stem and, eventually death. C.R. 42; R.R. IV, X-1; App. 1. Again the

report does not say any acts or omissions by VBMC were responsible for any of these

conditions, nor does it fault anything VBMC did or failed to do in response to these

conditions. C.R. 42; R.R. IV, X-1; App. 1.

       At no point does the report offer any commentary or opinions about the

appropriateness of the care provided by VBMC. Indeed, the report does not even

identify any care that was (or should have been) provided by VBMC’s agents rather

than by others whom VBMC does not control and for whom VBMC does not have

vicarious liability, such as physicians. C.R. 42; R.R. IV, X-1; App. 1. Nowhere does

the report state, directly or indirectly, that appellees’ claims have merit.

C.     Caselaw demonstrates the trial court was obligated to grant VBMC’s first
       motion to dismiss.

       The Medical Liability Act does not suggest that a document utterly devoid of

substantive content will qualify as an expert report. Scoresby v. Santillan, 346 S.W.3d

at 549, App. 4. Nurse O’Malley’s first report is the kind of document that is “no

report” because it does not contain a statement of opinion indicating that the claim

asserted by the plaintiff against the defendant has merit. Id. If the purported report

is this kind of “no report,” then the trial court has no discretion to grant an extension

of time to cure deficiencies in the report, but rather, the trial court is obligated to grant

the initial motion to dismiss. Id. at 557; Haskell, 363 S.W.3d at 761.

       Several cases have held that reports like Nurse O’Malley’s first report are “no

                                             5
report,” and the trial court cannot grant an extension but must grant a motion to

dismiss such a report.

      In Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston [14th Dist.]

2011, no pet.) the purported report failed to include any opinion that the claim had

merit. Id. at 678. Nor did the report offer the applicable standard of care or an

explanation of how the defendant failed to meet any standard of care. Id. at 678-79.

The report also failed to identify a causal relationship between any failure by the

defendant and the plaintiff’s injury, harm, or damages. Id. at 679. The court

concluded the purported report was not an expert report, and the trial court had abused

its discretion in denying the motion to dismiss. Id. In our case, Nurse O’Malley’s

report has the same problems - it does not describe the standard of care applicable to

VBMC, does not identify any breach of any such standard, does not explain how any

such breach caused the injuries complained of, and does not include an opinion that

the claim has merit. C.R. 42; R.R. IV, X-1.

      Also instructive is Haskell v. Seven Acres Jewish Senior Care Services, Inc.,

363 S.W.3d 754, (Tex. App.–Houston [1st Dist.] 2012, no pet.). In that case, the

plaintiff provided letters from three doctors which “describe actions taken by Seven

Acres that form the basis of Haskell’s suit.” 363 S.W.3d at 760. However, “none

claims that those actions were malpractice that caused Haskell an injury.” Id.

Furthermore, while each doctor described harm suffered by Haskell, “none of them



                                          6
ties this alleged injury to any wrongful action by Seven Acres.” Id. The court added

“[m]ost significantly, there is nothing in Haskell’s report regarding any failure by

Seven Acres to meet the applicable standard of care.” Id.

      Similarly in our case, Nurse O’Malley’s report describes some actions taken at

VBMC, but does not claim those actions were malpractice that caused Battles an

injury. C.R. 42; R.R. IV, X-1. Although O’Malley’s report notes that Battles died,

the report does not in any way tie this injury to any wrongful action by VBMC. C.R.

42; R.R. IV, X-1. Also, as in Haskell, O’Malley’s report says nothing about VBMC

failing to meet the applicable standard of care. C.R. 42; R.R. IV, X-1.

      In Laredo Tex. Hospital Co., L.P. v. Gonzalez, 363 S.W.3d 255 (Tex. App.–San

Antonio 2012, no pet.) the plaintiff obtained a report from a doctor stating that

insertion of an intravenous catheter led to the patient’s injuries, but the report does not

identify who performed this procedure. Id. at 258. Furthermore, the report “never

attempts to state the applicable standard of care, how any defendant failed to meet that

standard, or even if a failure in the standard of care occurred.” Id. at 258. The court

held this report was “no report” and therefore extension of time to cure deficiencies

was improper and dismissal was mandatory. Id. at 258-59.

      In San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685, 690

(Tex. App.–San Antonio 2011, pet. denied) the purported report identified defendant

Med Mart as a party that was to deliver medical supplies but otherwise did not identify



                                            7
the standard of care, and was silent on how Med Mart failed to meet the standard of

care or how that shortcoming caused Vasquez’s death. Id. at 690. Also, the purported

report did not provide an opinion regarding whether Vasquez’s claims had merit. Id.

The court concluded the purported report did not meet the standard for an “expert

report” and dismissal was mandatory. Id. at 691.

      Finally, in Fung v. Fischer, 365 S.W.3d 507, 530, 536 (Tex. App.–Austin

2012, no pet.) the court noted that the purported report does provide information about

Fung’s standard of care as a primary care physician, does not allege any breach of the

standard of care by Fung, nor any causal link between an alleged breach by Fung and

plaintiff’s injury. Id. at 536. The court concluded the purported report “simply fails

to assert that Fung did anything wrong” and was “no report” as to Fung. Id.

Therefore, the report was ineligible for the statutory extension and Fung was entitled

to dismissal. Id.

      Nurse O’Malley’s report contains the same glaring flaws - no statement of the

standard of care as to VBMC, no statement of how any such standard was breached,

no statement of how any such breach caused Ms. Battles’ death, and, fundamentally,

no statement that VBMC did anything wrong or that appellees’ claims against VBMC

have any merit. C.R. 42; R.R. IV, X-1.

                         CONCLUSION AND PRAYER

      Because Nurse O’Malley’s report was “no report,” the trial court had no



                                          8
discretion to take any action but dismissal. The trial court was not authorized to grant

the thirty day extension that it did, and the timeliness of VBMC’s second motion to

dismiss is irrelevant, because the trial court was obligated to grant the first motion to

dismiss, and VBMC is entitled to take an appeal from the trial court’s abuse of

discretion with regard to the first motion to dismiss. Scoresby, 346 S.W.3d at 555;

Laredo Tex. Hosp., 363 S.W.3d at 258-259.

       WHEREFORE, appellant Valley Baptist Medical Center prays that this Court

render judgment dismissing appellees’ claims with prejudice, and for all other relief

to which it is entitled.

                                         Respectfully submitted,

                                         ADAMS & GRAHAM, L.L.P.
                                         P.O. Drawer 1429
                                         Harlingen, Texas 78551-1429
                                         Telephone: (956) 428-7495
                                         Facsimile: (956) 428-2954


                                         By: /s/ Scott T. Clark
                                              Scott T. Clark
                                              State Bar No. 00795896
                                              sclark@adamsgraham.com
                                              Roger W. Hughes
                                              State Bar No. 10229500
                                              rhughes@adamsgraham.com
                                              Will Hughes
                                              State Bar No. 10240100
                                              willhughes@adamsgraham.com

                                         COUNSEL FOR APPELLANT, VALLEY
                                         BAPTIST MEDICAL CENTER

                                           9
                         CERTIFICATE OF COMPLIANCE


Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Appellant’s Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D).

Exclusive of the exempted portions in Tex. R. App. P. 9(i)(1), Appellant’s Brief
contains 2,191 words. Appellant’s Brief has been prepared in proportionally spaced
typeface using:

Software Name and Version: WordPerfect X5 for Windows

in (Typeface Name and Font Size): New Times Roman 14 point .

ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
956/428-7495; FAX: 956/428-2954
sclark@adamsgraham.com



By:     /s/ Scott T. Clark
      SCOTT T. CLARK
      State Bar No. 00795896

Attorney for Appellant




                                          10
                        CERTIFICATE OF SERVICE


      I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to the following counsel of record on this the 2nd day of
March, 2015:

Attorneys of record for Appellees BATTLES, ET AL.:

Mr. Robert Garza                                                     Via e-service
Myles R. Garza                                                           & e-mail
LAW OFFICE OF ROBERT GARZA, P.C.
1200 E. Harrison Street
Brownsville, Texas 78520


                                      /s/ Scott T. Clark
                                     SCOTT T. CLARK




                                       11
                               APPENDICES



1.   Erin K. O’Malley, RN, BSN, MHSA, INC-CSp.’s report dated November 11,
     2013.

2.   Order Granting Defendant Valley Baptist Medical Center’s Objections to
     Plaintiffs’ Expert Report of Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and
     Granting Plaintiffs A CPRC§74.351(c) Extension to Furnish Compliant Report
     signed January 8, 2014.

3.   Order on VBMC’s Objections to Plaintiff’s Second Deficient Expert Report of
     Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and Motion to Dismiss signed
     December 10, 2014.

4.   Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011)




                                      12
  Cause No. 13-14-00756-CV


APPENDIX 1
    TO APPELLANT’S BRIEF
NOV/21/2013/THU 05:36 PM         Robert Garza P.C.                   FAX No. 956-544-1108                 P.003




                                                         EKO Consulting
                                         Erin K.O'MaUeY,RN,BSN,MHSA, urc-cse.
                                                        2907 Ashwood St
                                                      Houston, TX 77025


         November 11Ib, .2013

         Law Offices of Robert Garza. PC
                                                                      DEFENDANT'S
                                                                          EX~Jr~
         Retired State District Judge
         2320 Central Blvd
                                                                             ::::....
         Brownsville, Texas 78520


         Re: Battles vs, Valley BaptistMedical Center


        Dear Mr. Garza:


        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 Batt;Ies vsValley BaptistMedica1 Ceolrr.


        I am a registered nurse in the state of Texas since December 1991, and have over twenty-two years of
        clinical experience, which include: emergency medicine. critical care, wound care, hyperbaric
        medicine, outpatient clinical management. and hospitaladministration. 1 have over fifteen years
        experience in wound care practice and clinical management. I obtained a Bachelors Degree in Nursing
        from Texas Woman'a University in 1991, a Masters Degree in Health Services Administration from
        Southwest University in 2001. and a Masters in Business Administration from Texas Women's
        University in 2008. I have cared for numerous patients requiring intensive care treatment. My
        experience includes the following;


        1991-1993        Staff Nurse Emergency Room at Memorial Hermann-TlvfC.              Houston TX.

        1993-1996        Relief Charge Nurse Shock Trauma leU at Memorial Hermann-TM'C. Houston
        TIC
NOV/ZI/Z013/THU 05:36 PM    Robert   Garza p.e.            FAX No. 956-544-1108                     P. 004




         1996-1999    Clinical Nurse Coordinator for Department of Hyperbarics, Wound Care and
                      Lymphedema at Memorial Hermann Hospital, Houston, TX.


         1999-2000    Clinical Manager of the University of Texas Outpatient Clinic at Memorial
                      Hermann Hospital, Houston, TX


        2000-2001     Curative Healthcare Services - contract wound care management and
                      pharmaceutical company which manages wound care operations in acute care
                      hospitals.


        2001·2003     ChiefNursing Officer III of 110 bed long term acute care facility with Kindred
                      Healthcare, Inc. in Houston, TX.


        2003-2004     Associate Administrator at Cornerstone Hospitals of Austin, a long term acute
                      care hospital in Austin, TX.


        2005-2006    Director of Education for Spring Branch Medical Center responsible for all
                     training, educational and orientation programs of acute medical and surgical
                     patients.


        2006·2008    Clinical Operations Manager of Hyperbaric, Wound Care and Lymphedema unit
                     at Memorial Hermann Hospital in Houston. TX.


        2008-2010    Director of Outpatient Services and Neurosciences at Memorial Hermann
                     Hospital in Houston, TX


        2010-2012    Chief Clinical Officer of Kindred Hospital North. long term acute care hospital
                     including nursing, wound care, outpatient services.


       2012- Present Clinical Practice Manger and Head Research Nurse, Baylor College of Medic      me.
NOV/21/2013/THU 05:36 PM        Robert Garza P.C.                FAX No. 956-544-1108                       P. 005



         This report has been rendered in a professional.diligent manner, and is based on the facts obtained
         from the materials provided to 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.


         I have reviewed the following records provided by your office regarding Mr. Bradford:



            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 shortstay unit. The procedure was done without incidence. The patients vital
        signs remainedstable throughout the procedure, and in post-operative care, That evening around 5:30 pm
        the parlent started complaining of headaches, nausea, and vomiting. At 6:12 pm the patient exhibited
        seizure activity. The patient lost consciences, and a code was called. The patient was intubated, given
        Lovenox, and transferred to the intensive care unit. The patient was taken to cr scan, which showed
        minimal edema, and no intracranial bleeding. The   cr 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 ofher condition and decided that
        Ms. Battles should be taken off life support.
  Cause No. 13-14-00756-CV


APPENDIX 2
    TO APPELLANT’S BRIEF
   ...   '
             .;.....




                                                             CAUSE NO. 2013-DCL-04983-H

              ROSALINDA BATILES. GERALD                                                   IN THE DISTRlcr COURT
              BATTLES, AS SURVIVING SPOUSE
              OF ROSALINDA BATILES, AMANDA
              GISELLE BATTLES, AS SURVIVING
              CHILD OF ROSAUNDA BATILES
              AND JEREMY BLAKE BATTLES.AS
              SURVIVING CHILD OF ROSALINDA
              BAITLES

               VS.                                                                        444 fh JUDICIAL DISTRICT

              VALLEY BAPTIST MEDICAL CENTER                                        OF CAMERON COUNTY. TEXAS




                       ORDER GRANTING DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
                        BROWNSVILLE'S OBJECTIONS TO PLAINTIFFS' EXPERT REPORT OF
                           ERIN K. O'MALLEY, RN, BSN, MHSA, INC-CSP AND GRANTING
                                    PLAINTIFFS A CPRC§74.351(c) EXTENSION
                                       TO FURNISH COMPLIANT REPORT


                           CAME ON FORCONSIDERATION, defendantValleyBaptistMedical Center-Brownsville's
               Objections to Plaintiffs'ExpertReportof Erin K. O'Malley, RN,BSN,MHSA, INC-CSpand the Court
               having heardtheevidencesubmitted inconnection with theObjections oftheopinionthatsaidObjections
               should be sustainedbecausetheCourtfindsthatelementsof the report aredeficient andthat the plaintiffs
               should have one 30-day extension to cure such deficiencies; and accordingly;
                           IT ISTHEREFOREORDEREDthat defendant Valley Baptist Medical Center-Brownsville's
               Objections to Plaintiffs' Expert Reportof Erin K. O'Malley, RN, BSN,MHSA, INC-CSp are hereby
               sustained; and
                           IT ISFURTHER ORDERED that plaintiffs aregranted a 3O-day extension tocure the deficiencies
               in their expert report.




               :, >t. ,O"\FILESW -928\orCfef,\Granting.Q01                                                      Pag" "




                                                                                                                 51
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                       SIGNED FOR ENTRY thiS,+- day            of---tr.r-_~~_




            Rober! Garza. LAW OFFICE OF ROBERT GARZA, P.C., 2320 Central Blvd., Brownsville, TX 78520: Fax No. 956·544·1108;
            email:jroberl@rgarzalaw.com
            Will Hughes, ADAMS & GRAHAM, LLP.. P.O. Drawer 1429, Harlingen, TX 78551.1429; Fax No. 956-428-2954;
            e-mail:willhughes@adaltll;grllham.com




            (12~ C:\FILE~W'928\orClerS\Granling'OOl                                                                    Page 2




                                                                                                                       52
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  Cause No. 13-14-00756-CV


APPENDIX 3
    TO APPELLANT’S BRIEF
                                           CAUSE NO. 2013-DCL-4983-H

            ROSALINDA BATTLES, GERALD                      §   IN THE DISTRICT COURT
            BATTLES, AS SURVIVING SPOUSE                   §
            OF ROSALINDA BATTLES, AMANDA                   §
            GISELLE BATTLES, AS SURVIVING                  §
            CHILD OF ROSALINDA BATILES                     §
            AND JEREMY BLAKE BATTLES, AS                   §
            SURVIVING CHILD OF ROSALINDA                   §
            BATTLES                                        §
            Plaintiffs,                                    §
                                                           §
            V.                                             §   444TH JUDICIAL DISTRICT
                                                           §
            VALLEY BAPTIST MEDICAL                         §
            CENTER                                         §
            Defendant.                                     §   OF CAMERON COUNTY, TEXAS


                  ORDER ON DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
             BROWNSVILLE'S OBJECTIONS TO PLAINTIFF'S SECOND DEFICIENT EXPERT
              REPORT OF ERIN K. O'MALLEY, RN. BSN, MHSA. INC-CSP AND MOTION TO
                                          DISMISS

                   On                    , a hearing was held on the Defendant Valley Baptist Medical

            Center - Brownsville's Objections to Plaintiff's Second Deficient Expert Report of Erin K.

            O'Malley. RN, BSN, MHSA, lNC-CSP and Motion to Dismiss in the above-styled and

            nwnbered cause. After considering the arguments of the parties, the court is of the opinion that

            said.motion should be DENIED.

                   IT IS THEREFORE ORDERED that Defendant Valley Baptist Medical Center -

            Brownsville's Objections to Plaintiffs Second Deficient Expert Report of Erin K. O'Malley,

            RN, BSN, MHSA, INC-CSP and Motion to Dismiss is hereby DENIED.

                   SIGNED on thisULday of J       t.Cet.~2014.

             FILEDJl-0'CLOCKLM
            AURORA DE LAGARZA, CLERK
                                                     ~-)        -"j ----- {
                                                        JUDGE PRESIDING
                                                                                 IL\:::0=

                                                                                                       75
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  Cause No. 13-14-00756-CV


APPENDIX 4
    TO APPELLANT’S BRIEF
546 Tex.           3-16 SOUTH WESTERN REPORTER, 3d SERIES

We reverse the court of appeals' judgment           with expertise indicating that claim as-
and render judgment for BIC.                        serted by plaintiff has merit;
                                                (3) 30 day extension to cure deficiencies in
  Justice GREEN did not participate in              expert report may be granted if report
the decision.                                       is served by statutory deadline and
                                                    contains opinion of individual with ex-
                                                    pertise that claim has merit;
                                                (4) doctor's expert report was deficient be-
                                                    cause it did not state standard of care;
                                                    and
  Tyler SCORESBY, M.D., Petitioner,
                                                (5) doctor's expert report, although defi-
                     v.
                                                    cient, was not the legal equivalent of
Catarino SANTILLAN, Individually and                "no report" at all under Act.
 As Next Friend of Samuel Santillan,            Affirmed,
        A Minor, Respondent.
                                                Willett, J., filed concurring opinion.
               No. 09-0497.
                                                Johnson, J., dissented and filed opinion in
         Supreme Court of Texas.                which Wainwright, J., joined.
           Argued Nov. 9, 2010.
           Decided July 1, 2011.                1. Health e=>804
     Rehearing Denied Sept. 30, 2011.                Medical Liability Act entitles a defen-
Background: Patient brought action              dant to dismissal of a health care liability
against physicians under Medical Liability      claim if, within 120 days of the date suit
Act. The 96th District Court, Tarrant           was filed, he is not served with an expert
County, Jeff Walker, J., denied physicians'     report showing that the claim against him
motions to dismiss for failure to file com-     has merit. V.T.CA, Civil Practice &
pliant health care expert report, and           Remedies Code §§ 74.001-74.507.
granted patient 30-day extension to cure
                                                2. Appeal and Error e=>70(3)
deficiencies in report. Both physicians ap-
pealed. On consolidated appeal, the Fort             Trial court's refusal to dismiss health
Worth Court of Appeals, Bill Meier, J., 287     care liability claim when defendant is not
S.W.3d 319, dismissed the appeals. Physi-       served with an expert report within 120
cians appealed.                                 days of the date suit was filed is immedi-
                                                ately appealable. V.T.C.A., Civil Practice
Holdings: The Supreme Court, Hecht, J.,
                                                & Remedies Code §§ 74.001-74.507.
held that:
(1) trial court should err on side of grant-    3. Appeal and Error e=>70(3)
    ing plaintiff additional 30 days in which      Health e=>804
    to cure deficiency in expert report, and         Medical Liability Act sets specific re-
    defendant cannot seek review of this        quirements for an adequate expert report
    ruling or appeal court's concomitant        and mandates that objective good faith
    refusal to dismiss claim before 30 day      effort be made to comply with them, but it
    period has expired;                         also authorizes the trial court 'to give a
(2) document qualifies as "expert report"       plaintiff who meets the 12O-day deadline
    under Medical Liability Act if it con-      for serving expert report an additional
    tains statement of opinion by individual    thirty days in which to cure a "deficiency"
                               SCORESBY v, SAl"ITILLAN                              Tex. 547
                                Cite as 346 S.W.3d 546 (Tex. 2011)

in the elements of the report, and trial          care more available and less expensive by
court should err on the side of granting          reducing the cost of health care liability
the additional time and must grant it if the      claims, and eliciting an expert's opinions
deficiencies are curable, and defendant           early in the litigation is an obvious place to
cannot seek review of this ruling or appeal       start in attempting to reduce frivolous law-
the court's concomitant refusal to dismiss        suits and thereby reduce the costs of
the claim before the thirty-day period has        claims. V.T.CA, Civil Practice & Reme-
expired. V.T.C.A., Civil Practice & Reme-         dies Code §§ 74.001-74.507; Vernon's
dies Code §§ 51.014(a)(9), 74.351(a-c, 1),        Ann.Texas Civ.St. art. 4590i (Repealed).
(1')(6).
4. Health lS='804                                 8. Health lS='804
     While Medical Liability Act contem-               Purpose of Medical Liability Act's ex-
plates that a document can be considered           pert report requirement is to deter frivo-
an expert report despite its deficiencies,         lous claims, not to dispose of claims re-
the Act does not suggest that a document           gardless of their merits. V.T.CA, Civil
utterly devoid of substantive content will         Practice & Remedies Code § 74.351(1')(6).
qualify as an expert report. V.T.CA, Civ-
il    Practice    &     Remedies     Code          9. Health lS='804
§ 74.351(1')(6).
                                                        Failing to timely file an expert report,
5. Health lS='804                                  or filing a report that does not evidence a
     Document qualifies as an "expert re-          good-faith effort to comply with the defini-
port" under Medical Liability Act if it con-       tion of an expert report under Medical
tains a statement of opinion by an individu-       Liability Act, means that the claim is ei-
al with expertise indicating that the claim
                                                   ther frivolous, or at best has been brought
asserted by the plaintiff against the defen-
                                                   prematurely. V.T.CA, Civil Practice &
dant has merit. V.T.CA, Civil Practice &
                                                   Remedies Code § 74.35l(c), (1')(6).
Remedies Code § 74.351(1')(6).
     See publication Words and Phrases
   for other judicial constructions and
                                                   10. Pretrial Procedure lS='46
   definitions.                                         There are constitutional limitations
6. Health lS='804                                  upon the power of courts to dismiss an
     Under Medical Liability Act, expert's         action for discovery violations without af-
lack of relevant qualifications and his opin-      fording a party the opportunity for a hear-
ion's inadequacies are deficiencies the            ing on the merits of his cause, and those
plaintiff should be given an opportunity to        limitations constrain the legislature no less
cure if it is possible to do so, and this          in requiring dismissaL
lenient standard avoids the expense and
delay of multiple interlocutory appeals and        11. Health lS='804
assures plaintiff a fair opportunity to dem-            No particular words or formality are
onstrate that his claim is not frivolous.          required in expert report under Medical
V.T.e.A., Civil Practice & Remedies Code           Liability Act, but bare conclusions will not
§ 74.351(1')(6).
                                                   suffice, and the report must address all the
7. Health lS='603                                  elements set forth in Act, and omissions
    Goal of the Medical Liability and In-          may not be supplied by inference.
surance Improvement Act (MLIIA) and                V.T.CA, Civil Practice & Remedies Code
the Medical Liability Act is to make health        § 74.351(1')(6).
548 Tex.           346 SOUTH WESTERN REPORTER, 3d SERIES

12. Health e=>804                               conduct. V.T.C.A., Civil Practice & Reme-
     Medical Liability Act allows a claim-      dies Code § 74.35l(r)(6).
ant a thirty-day period to cure deficiencies    18. Health e=>804
before the trial court finally determines
                                                      Doctor's expert report, although defi-
that the report is inadequate and the claim
                                                cient because it did not state the standard
must be dismissed. V.T.CA, Civil Prac-
                                                of care, was not the legal equivalent of "no
tice & Remedies Code § 74.35l(c), (r)(6).
                                                report" at all under Medical Liability Act,
13. Health e=>603                               given that there was no question that, in
     Medical Liability Act's principal pur-     doctor's expert opinion, patient's health
pose is to reduce the expense of health         care liability claim against defendant phy-
care liability claims. V.T.CA, Civil Prac-      sicians had merit, and since the report was
tice & Remedies Code §§ 74.001-74.507.          served within the statutory 120 day dead-
14. Health e=>804                               line, trial court had authority under Act to
    Goal of the Medical Liability Act's         grant patient an additional 30 days to cure
expert report requirement is to deter friv-     deficiencies in the expert report.
olous claims, and inadequate expert report      V.T.C.A., Civil Practice & Remedies Code
does not indicate a frivolous claim if the      § 74.351(a-c).
report's deficiencies are readily curable.      19. Appeal and Error e=>70(3)
V.T.C.A., Civil Practice & Remedies Code             Health e=>804
§ 74.35l(c), (r)(6).                                  Although doctor's expert report was
15. Health e=>804                               deficient, because it did not state the stan-
     Medical Liability Act's thirty-day ex-     dard of care, it was possible to cure defi-
tension to cure deficiencies in an expert       ciencies in the expert report, and thus,
report may be granted if the report is          trial court granted patient an additional 30
served by the statutory deadline, if it con-    days to cure deficiencies in the expert
tains the opinion of an individual with ex-     report, and trial court's decision granting
pertise that the claim has merit, and if the    patient an additional 30 days to cure defi-
defendant's      conduct   is    implicated.    ciencies, and denying the defendant physi-
V.T.C.A., Civil Practice & Remedies Code        cians' motions to dismiss patient's health
§ 74.35l(c), (r)(6).                            care liability claim, were not appealable
                                                before the 30 day period had expired.
16. Appeal and Error e=>70(3)
                                                V.T.C.A., Civil Practice & Remedies Code
     Under Medical Liability Act, all defi-
                                                § 74.351(a-c), (r)(6).
ciencies in expert report, whether in the
expert's opinions or qualifications, are sub-   20. Health e=>804
ject to being cured before an appeal may             Medical Liability Act requires that ex-
be taken from the trial court's refusal to      pert's knowledge, training or experience,
dismiss the case. V.T.C.A., Civil Practice      and practice be relevant to patient's claim.
& Remedies Code § 74.35l(c), (r)(6).            V.T.C.A., Civil Practice & Remedies Code
                                                § 74.351(r)(6).
17. Health e=>804
     Doctor's expert report was deficient,
and thus did not satisfy standards for ex-
pert report under Medical Liability Act,
because it did not state the standard of          Eric Rene Reyes, Jason C.N. Smith, Art
care, but, rather, only implied that it was     Brender, Fort Worth, for Catarino Santil-
inconsistent with the defendant physicians'     lan.
                                         SCORESBY v, SANTILLAN                                             Tex. 549
                                          Cite   all   346 S.W.3d 546 (Tex. 2011)

  Michael Alan Yanof, Philipa Remington,                          ruling 9 or appeal the court's concomitant
Dallas, for Tyler Scoresby, M.D.                                  refusal to dismiss the claim before the
  Randy J. Hall, David Leon Pratt II,                             thirty-day period has expired."
Fort Worth, for Yadranko Ducic, M.D.                                 [4-6) While the Act thus contemplates
                                                                  that a document can be considered an ex-
   Justice HECHT delivered the opinion of                         pert report despite its deficiencies, the Act
the Court, in which Chief Justice                                 does not suggest that a document utterly
JEFFERSON, Justice MEDINA, Justice                                devoid of substantive content will qualify
GREEN, Justice WILLETT, Justice                                   as an expert report. Based on the Act's
GUZMAN, and Justice LEHRMANN                                      text and stated purposes, we hold that a
joined.                                                           document qualifies as an expert report if it
   [1-3] The Medical Liability Act 1 enti-                        contains a statement of opinion by an indi-
tles a defendant to dismissal of a health                         vidual with expertise indicating that the
care liability claim if, within 120 days of                       claim asserted by the plaintiff against the
the date suit was filed, he is not served                         defendant has merit. An individual's lack
with an expert report showing that the                            of relevant qualifications and an opinion's
claim against him has merit," The trial                           inadequacies are deficiencies the plaintiff
court's refusal to dismiss is immediately                         should be given an opportunity to cure if it
appealable." The Act sets specific require-                       is possible to do so. This lenient standard
ments for an adequate report 4 and man-                           avoids the expense and delay of multiple
dates that "an objective good faith effort                        interlocutory appeals and assures a claim-
[be made) to comply" with them,' but it                           ant a fair opportunity to demonstrate that
also authorizes the trial court to give a                         his claim is not frivolous. The expert re-
plaintiff who meets the 12O-day deadline                          port before us meets this test, and there-
an additional thirty days in which to cure a                      fore the trial court's order allowing thirty
"deficiency" in the elements of the report,"                      days to cure deficiencies and denying the
The trial court should err on the side of                         defendants' motions to dismiss were not
granting the additional time 7 and must                           appealable. Accordingly, we affirm the
grant it if the deficiencies are curable."                        court of appeals' judgment dismissing the
The defendant cannot seek review of this                          appeal for want of jurisdiction."

1.     TEX. CIV PRAC. & REM. CODE §§ 74.001-.507.                      their claims.''' (quoting id. at 416 (Guzman.
     All references to the Act are to these provi-                     J.. joined by Lehrrnann.r J.. concurring in the
     sions.                                                            judgrnentll).

2.    /d. § 74.35I(bl.                                            8.     Id. at 411 (plurality op. of Medina, J., joined
                                                                       by Jefferson. C.J .. and Hecht, J.); id. at 416
3.      Id. § 51.014(a)(9); Badiga v. Lopez, 274                       (Guzman. J., joined by Lehrmann. J.. concur-
     S. W.3d 681, 685 (Tex.2009).                                      ring in the judgment).
4.    TEX. CIV. PRAC.   &   REM CODE § 74.35I(r)(6).
                                                                  9.     TEX. CIY PRAC. & REM. CODE § 51.014(a)(9) (no
                                                                       interlocutory appeal); /11 re Watkil1s. 279
5.    /d. § 74.351(l).
                                                                       S.W.3d 633, 634 (Tex.2009l (orig.proceeding)
6.     /d. § 74.35I(c).                                                (no review by mandamus).

7.     Samlowski v. Wootel1. 332 S.W.3d 404. 411                   10. Ogletree v. Matthews. 262 S.W.3d 316, 321
     (Tex.201\) (plurality op. of Medina, J., joined                 (Tex.2007).
     by Jefferson. C.J.. and Hecht. J.) (" '[Tjrial
     courts should err on the side of granting                     II. 287      S.W.3d 319     <Tex.App.-Fort Worth
     claimants' extensions to show the merits of                     2009).
550 Tex.           :~46   SOUTH WESTERN REPORTER, ad SERIES


                      I                         on awakening he did not have a normal
   On behalf of Samuel Santillan, a minor,      neurologic exam, in fact, had a right-
Catarino Santillan sued Dr. Tyler Scores-       sided hemiparesis, and due to the pro-
by and Dr. Yadranko Ducic, two otolaryn-        gression of his neurological deficit, in-
gology (ENT) surgeons (collectively, "the       creasing intercerebral hemorrhage was
Physicians"), alleging that they negligently    noted by CT scanning.
performed a medial maxillectomy to re-          He was taken back to the operating
move growths from Samuel's sinus cavity.        suite on 1/18/06 by Dr. Gregory Smith,
Santillan asserts that an incision made too     D.O., a neurosurgeon. Dr. Smith's pre-
far into Samuel's brain lacerated a blood       operative diagnosis was that of expand-
vessel and required surgery to stop the         ing inter-cerebral hematoma, status post
bleeding, resulting in brain damage and         split thickness skull harvesting, with
partial paralysis.                              postoperative diagnosis of expanding in-
   To satisfy the Act's expert report re-       tercerebral hematoma and intercerebral
quirement, Santillan timely served the          hematoma skull perforation. Procedure
Physicians with a letter from Dr. Charles       performed was that of a left parietal
D. Marable to Santillan's attorney. The         craniotomy with evacuation of intercere-
letter did not attach Marable's curriculum      bral hematoma, repair and hemostasis.
vitae or describe his credentials or experi-    Dr. Smith's operative report states there
ence other than to state that he is "a          was cortical laceration with active bleed-
Board-Certified neurologist". From hav-         ing from several medium-sized vessels in
ing examined Samuel and reviewed his            the left parietal area, which were then
medical records, Marable explained his          cauterized with bipolar cautery for he-
condition as follows:                           mostatis. An underlying intercerebral
   The patient was initially seen on 8/3/07.    hematoma was entered and eventually
   He is now a 17-year-old Latin-Ameri-         evacuated successfully with suction.
   can male who was taken to John Peter                      *      *      *
   Smith on 1/17/06 for a preoperative diag-    It appears he was in the hospital until
   nosis of maxillary sinus neoplasm under      2/11/06, and at that time was transferred
   the care of Dr. Yadro Ducic, M.D., an        to HealthSouth Rehabilitation Hospital,
   ENT physician, and another surgeon,          Cityview, admitted on 2/11/06, date of
   Dr. Tyler Scorsby [sic], with procedures     discharge 2/21/06. He was discharged
   of left mediomaxillectomy [sic], excision    with the diagnosis of left parietal hemor-
   of neoplasm of the maxilla, calvarial        rhage, maxillary sinus tumor resection,
   bone growth and reconstruction of max-       right hemiparesis, persistent pain, apra-
   illa and excision of tumor of pterygopa-     xia, seizure prophylaxis, peptic ulcer
   latin [sic] structures. During the proce-    prophylaxis and right hemisensory defi-
   dure, an incision was made in the right      cit. During his stay at HealthSouth
   parietal region in a coronal fashion and     Hospital he progressed in all areas of
   carried down the pericranium. As a           mobilization and self-care. He was am-
   result of this, there was cortical lacera-   bulating greater than 400', but still had
   tion with active bleeding from several       significant right upper extremity weak-
   medium size vessels in the area.             ness and spasticity. It was then deemed
   According to Dr. Scorsby's [sic] note,       necessary to transfer him to an' outpa-
   the patient awoke in the operating room      tient brain injury program and work on
   without complications and was taken to       his strength, cognition and overall mobi-
   the post anesthesia care unit. However,      lization....
                                    SCORESBY        v,   SANTILLAN                        Tex. 551
                                     Cite as 346 S.W.3d 546 (Tex. 2011)

 He was seen on 8/3/07. He still has                        After the 12o-day deadline, Santillan
 weakness of his right arm and leg.                      served the Physicians with Marable's cur-
 Walking seems to still be a problem ....                riculum vitae and his amended report, in
 He is still having headaches in the occi-               which he added that "the applicable stan-
 pital region.                                           dard of care would have been to perform
Marable's letter concluded:                              the procedure of a calvaria bone transplant
    As a Board-Certified neurologist, my                 without nicking or lacerating the parietal
                                                         cortex [and] to get the appropriate sur-
 opinion is that Dr. Ducic violated the
                                                         geon, such as a neurosurgeon, instead of
 standards of care, as well as Dr. Scorsby
                                                         an ENT physician to do a calvaria bone
 [sic], and as a result his damages are
                                                         grafting procedure", and that "Dr. Ducic
 that of a light-sided hemiparesis with
                                                         and Dr. Scorsby [sic] ... failed to perform
 possibility of seizure foci in the future.
                                                         a careful and well-planned surgery, caus-
 Although he has not had any seizures,
                                                         ing a laceration of the cortical hemisphere,
 he certainly does meet the criteria for a
                                                         causing substantial bleeding". At the
 seizure disorder. Had it not been for
                                                         hearing on the Physicians' objections and
 Dr. Ducic and Dr. Seorsby's [sic] negli-
                                                         motions, the trial court refused to consider
 gent activity in causing cortical lacera-
                                                         Marable's post-deadline amended report.
 tion of this patient's left parietal lobe, he
                                                         The Physicians complained that Marable's
 would not have needed further hospital-
                                                         original letter did not show that he had
 ization at John Peter Smith or the leU                  sufficient qualifications and experience to
 therapy, or going to HealthSouth Rehab,                 render an opinion regarding the surgery,
 and is now left with a right hemiparesis                and did not define the standard of care,
 at a young age.                                         state how it was breached, or explain how
   The Physicians each timely objected                   a breach resulted in Samuel's injuries.
that the letter was inadequate as an expert              The Physicians acknowledged that Samuel
report, asserting that: (i) a neurologist is             suffered a lacerated artery but argued that
not qualified to testify regarding the stan-             such things are inevitable in surgery, no
dard of care for an ENT surgeon in per-                  matter how carefully it is performed, and
forming the procedures the Physicians                    do not necessarily indicate a breach of the
performed on Samuel; (ii) Marable's opin-                standard of care. The trial court denied
ions regarding the Physicians' standard of               the motions to dismiss and granted Santil-
care, breach, and causal relationship to                 lan a thirty-day extension to cure deficien-
Samuel's injuries were conclusory and di-                cies in the report.
rected to Scoresby and Ducic collectively                  The Physicians appealed, persisting in
rather than individually; and (iii) Mara-                their contention that Marable's letter was
ble's curriculum vitae was not included, as              too inadequate to qualify as an expert re-
the Act requires.'! The Physicians argued                port; therefore, Santillan had not met the
Marable's letter was so woefully deficient,              12o-day deadline; and consequently, the
it did not even qualify as an expert report              Act did not permit an additional thirty
under the Act to meet the 12o-day dead-                  days to cure the deficiencies but instead
line. They moved the court to dismiss the                required that the case be dismissed.P The
case with prejudice and award them their                 court of appeals construed our analysis in
reasonable attorney fees and costs.                      Ogletree v. Mouheioe" to mean that defi-

12.   TEX. CIV PRAC & REM. CODE   § 74.351(a).           14.   262 S.W.3d 316.

13.   287   s.w.sa   at 320.
552 Tex.            ;346 SOUTH WESTERN REPORTER, 3d SERIES

ciencies in a document tendered as an             Legislature's purpose in the MLIIA, ex-
expert report will not preclude it from           pressly stated, was to
qualifying as SUCh. 15 The court concluded          reduce excessive frequency and severity
that an interlocutory appeal in these cir-          of health care liability claimsl.]    de-
cumstances was not permitted."                      crease the cost of those claims[,]     do
  We granted the Physicians' petitions for          so in a manner that will not unduly
review."                                            restrict a claimant's rights any more
                                                    than necessary to deal with the crisis],
   While this appeal has been pending, the
                                                    and thereby] ... make affordable medi-
Physicians have lodged essentially the
                                                    cal and health care more accessible and
same objections to Santillan's amended re-
                                                    available to the citizens of Texas .... 22
port as they made to the original report.
They have also moved again for dismissal,         In 2003, the Legislature replaced the MLI-
attorney fees, and costs. The trial court         IA with the Medical Liability Act, repeat-
has not ruled on those objections and mo-         ing its 1977 findings and statements of
                                                  purpose.f
tions.
                                                    [7] Fundamentally, the goal of the
                      II                          MLIIA and the Medical Liability Act has
   The Legislature enacted the Medical Li-        been to make health care in Texas more
ability and Insurance Improvement Act             available and less expensive by reducing
("MLIIA") in 1977 18 in response to "a            the cost of health care liability claims. To
medical malpractice insurance crisis in the       that end, both statutes have sought to
State of Texas" that was having "a materi-        deter frivolous lawsuits by requiring a
al adverse effect on the delivery of medical      claimant early in litigation to produce the
and health care in Texas, including signifi-      opinion of a suitable expert that his claim
cant reductions of availability of medical        has merit. "[E]liciting an expert's opin-
and health care services to the people of         ions early in the litigation [is] an obvious
Texas and a likelihood of further reduc-          place to start in attempting to reduce friv-
tions in the future"." The Legislature            olous lawsuits" 24 and thereby reduce the
found that the crisis had been created by         costs of claims.
an "inordinate] J" increase in the volume           The Legislature first added an expert
and expense of health care liability              report requirement to the MLIIA in 1993,
claims." Concerned that "the direct cost          then strengthened it over the next ten
of medical care to the patient and public of      years, finally allowing interlocutory ap-
Texas hard] materially increased"," the           peals to ensure uniform enforcement. We

15.   287 S.W.3d at 324.                          19.   1977 Act, § 1.02(a)(5H6).

16.   Id.at325.                                   20.   1977 Act, § 1.02(a)(lH5).

17. 53 Tex.Sup.Ct.J. 1061 (Aug. 27. 2010). We     21.   1977 Act, § 1.02(a)(8).
  have jurisdiction to determine whether the
  court of appeals had jurisdiction. Tex. Dep't   22.   1977 Act, § 1.02(b)(lH3), (5).
  of Criminal Justice v. Simons, 140 S.W.3d
  338, 343 (Tex.2004).                            23. Act of June 2, 2003, 78th Leg., RS., ch.
                                                    204, §§ 10.01, 10.09, 10.11. 2003 tex. Gen.
18. Act of May 30, 1977, 65th Leg., R.S., ch.       Laws 847, 864-882, 884-885.
  817,1977 Tex. Gen. Laws 2039, formerly
  TEXREVCIV STAT. ANN. art. 4590i [hereinafter    24. Am. Transitional Care Ctrs. oiTex., Inc. v.
  1977 Act].                                        Palacios, 46 S.W.3d 873,877 (Tex.2001).
                                  SCORESBY v. SANTILLAN                                      Tex.      553
                                    Cite as 346 S.W.3d 546 (Tex. 2011)

look first at the requirement, then the               care provider failed to meet the standards,
appeal, and finally at their proper opera-            and the causal relationship between that
tion together.                                        failure and the injury, harm, or damages
                                                      claimed." 31 The failure to make "a good
                        A                             faith effort" to comply :l2 could result in
   The 1993 amendment to the MLIIA re-                dismissal with prejudice and liability for
quired a plaintiff, within ninety days of             attorney fees as well as costs." But if the
filing suit, either to file an affidavit that he      failure-s-even missing the deadline com-
had obtained a suitable expert's opinion              pletely 34-was "not intentional or the re-
that his claim had merit or to post a $2,000          sult of conscious indifference but was the
bond or cash deposit," The trial court                result of an accident or mistake," the trial
could extend the deadline for up to ninety            court was required to grant "a grace peri-
days "for good cause shown"." A plaintiff             od of 30 days to permit the claimant to
who failed to comply risked dismissal with-           comply"."
out prejudice and liability for costs, again,
except for "good cause ... shown".27                      The Medical Liability Act, adopted in
                                                       2003 and now in effect, eliminates the
   In 1995, the Legislature required that              bond/deposit alternative, shortens the
the expert report itself be filed and raised           deadline for the expert report and curricu-
the amount of the bond or deposit posted               lum vitae to 120 days (unless extended by
in lieu of a report to $5,000. 28 The amend-
                                                       agreement), and requires service rather
ment retained the ninety-day initial dead-
                                                       than filing." The Act retains the defini-
line but added that even if a bond or
                                                       tion of an expert report 37 but is more
deposit were posted, an expert report and
                                                       specific about an expert's qualifications."
curriculum vitae must be filed within 180
days of initiating suit." The amendment                  The Act now distinguishes between
specified the qualifications the expert was            missing a deadline altogether and serving
required to have 30 and defmed the report              an inadequate report. Section 74.35l(b)
as one "provid[ing] a fair summary of the              provides that
expert's opinions ... regarding applicable               [i]f, as to a defendant ... , an expert
standards of care, the manner in which the               report has not been served [by the dead-
care rendered by the physician or health                 line], the court, on the motion of the

25. Act of May 25, 1993. 73rd Leg .. RS., ch.          32.   1995 AC1, former art. 4590i, § 13.0W).
  625, § 3. 1993 Tex. Gen. Laws 2347. 2347,
  formerly TEX.REV.CIV. STAT ANN. art. 4590i,          33.   1995 Act, former art. 4590i, § 13.0I(el.
  § 13.0HaHb) [hereinafter 1993 Act].
                                                       34. Stockton v. Offenbach, 336 S.W.3d 610,
26.   1993 Act, former art. 4590i, § 13.01(d).
                                                         616 (Tex.201 J) ("Under article 4590i, a plain-
27.   1993 Act, former art. 4590i, § 13.0l(c).           tiff could obtain an extension, even when no
                                                         report was provided by the deadline, if the
28. Act of May 5, 1995, 74th Leg., RS., ch.              plaintiff could show an 'accident or mistake'
  140, § J. 1995 Tex. Gen. Laws 985, 986,                in failing to furnish a timely report. ").
  formerly TEX.REV.CIV STAT ANN. art. 4590i,
  § 13.0l(a) [hereinafter 1995 Act].                   35.   1995 Act, former art. 4590i, § 13.0I(g).

29.   1995 Act, former art. 4590i, § 13.01(d).         36.   TEX. CIV PRAC & REM. CODE   § 74.35Ha).
30.   1995 Act, former art. 4590i, §§ 13.0l(r)(5l
  & 14.01.                                             37. Id. § 74.351(r)(6).

31.   1995 Act, former art. 4590i, § 13.01(r)(6l.      38.   Id. §§ 74.35I(r)(5), 74.401-.403.
554 Tex.                   :H6 SOUTH WESTERN REPORTER, 3d SERIES

   [defendant], shall, subject to Subsection          purpose of the expert report requirement
   (c), enter an order that:                          is to deter frivolous claims," not to dispose
      (1) awards [the defendant] reasonable           of claims regardless of their merits. "The
   attorney's fees and costs of court ... ;           Legislature has determined that failing to
   and                                                timely file' an expert report, or filing a
      (2) dismisses the claim with respect to         report that does not evidence a good-faith
   the [defendant] with prejudice to the              effort to comply with the definition of an
   refiling of the claim."                            expert report, means that the claim is
Under section 74.351([), the same conse-              either frivolous, or at best has been
quences attend serving an inadequate re-              brought prematurely." U But the Legisla-
port that "does not represent an objective            ture has likewise recognized that when an
good faith effort" to comply with the Act's           expert report can be cured in thirty days,
requirements." But before those conse-                the claim is not frivolous. It must be
quences are imposed, the Act provides an              remembered that "'[t]here are constitu-
opportunity for deficiencies to be cured.             tional limitations upon the power of courts
Section 74.351(a) requires that any objec-             . .. to dismiss an action without affording
tion to the sufficiency of a report be lodged         a party the opportunity for a hearing on
within twenty-one days of service," and               the merits of his cause' ",45 and those limi-
section 74.351(c) provides:                           tations constrain the Legislature no less in
   If an expert report has not been served            requiring dismissal.
   [by the deadline] because elements of                 For these reasons, we have held that
   the report are found deficient, the court          trial courts should be lenient in granting
   may grant one 3O-day extension to the              thirty-day extensions and must do so if
   claimant in order to cure the deficien-            deficiencies in an expert report can be
   cy." ~2                                            cured within the thirty-day period. This
   [8-10] The Act's thirty-day extension              "minimal delay before a report's sufficien-
to cure deficiencies replaces the 1995 law's          cy may again be challenged and the case
thirty-day "grace period" for "accident or            dismissed, if warranted" 46 does not impair
mistake", shifting the focus from the claim-          the purpose of the Act.
ant's conduct to the report's contents. But
the importance of an appropriate delay in                                   B
finally dismissing a claim for want of an               Under the MLIIA, there was no inter-
adequate report is undiminished. The                  locutory appeal from the denial of a motion

39.   Id. § 74.35 l tb).                               209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255
                                                       (1958). citing Hammond Packing Co. v. Arkan-
40.   Id. § 74.351(/).
                                                       sas. 212 U.S. 322. 350-351. 29 S.Ct. 370. 53
41.   Id.§ 74.351(a).                                  L.Ed. 530 (1909), and Hovey v. Elliott, 167
                                                       U.S. 409, 17 S.Ct. 841. 42 L.Ed. 215 (1897);
42.   TEX. CIV PRAC.   &. REM. CODE   § 74.351 (c).    accord Ins. Corp. of Ir., Ltd. v. Compagnie des
                                                       Bauxites de Guinee, 456 U.S. 694. 705-706,
43. Am. Transitional Care Ctrs. of Tex., Inc. v.
                                                       102 S.Ct. 2099. 72 L.Ed.2d 492 (1982»; see
  Palacios, 46 S.W.3d 873, 878 (Tex.2001)
                                                       also Walker v. Gutierrez, 111 S.W.3d 56. 66
  C'And one purpose of the expert-report re-
  quirement is to deter frivolous claims. ").          (Tex.2003).

44.   Id.                                             46. Ogletree v. Matthews, 262 S.W.3d 316.321
                                                        (Tex.2007).
45. TransAmerican Natural Gas Corp. v. Pow-
  ell. 811 S.W.2d 913. 918 (Tex.1991) (quoting
  Societe lnternationale v. Rogers, 357 U.S. 197,
                                 SCORESBY          v,   SANTILLA.N"                             Tex.   555
                                  Cite as 346 S.W.3d    ~46   (Tex. 2011)

to dismiss a health care liability claim for               If no expert report is timely served, we
failure to comply with the expert report                held in Badiga v. Lopez that the denial of
requirement, and we did not make clear                  a motion to dismiss is appealable, even if
until 2008 that review by mandamus was                  the court grants an extension.P The Med-
available." In adopting the Medical Lia-                ical Liability Act, unlike the MLIIA, does
bility Act in 2003, the Legislature permit-             not authorize an extension if no report is
ted an interlocutory appeal from an order               timely served. Granting an extension not
denying "all or part of the relief sought by            authorized by section 74.351 does not pre-
a motion under Section 74.35l(b), except                clude appeaL But because an appeal is
that an appeal may not be taken from an                 available, we held in In re Watkins that
order granting an extension under Section               review by mandamus is not available."
74.351".48 In a series of cases, we have
                                                          The present case requires us to deter-
explained the limits of this review mecha-
                                                        mine whether a document served on a
nism.
                                                        defendant can be so lacking in substance
   If an expert report is timely served,                that it does not qualify as an expert report,
even without a curriculum vitae, we held in             and therefore an immediate appeal from
Ogletree v. Matthews that the trial court's             the denial of a motion to dismiss is avail-
denial of a motion to dismiss, asserting the
                                                        able under Badiga.
report's inadequacy, cannot be appealed if
the court also grants a thirty-day exten-                                    C
sion to cure deficiencies." "This prohibi-
                                                          [11] The Act defines an expert report
tion," we said, "is both logical and prac-
                                                        to be
tical." 50 Otherwise,
                                                          a written report by an expert that pro-
   the court of appeals would address the
   report's sufficiency while its deficiencies            vides a fair summary of the expert's
   were presumably being cured at the trial               opinions as of the date of the report
   court level, an illogical and wasteful re-              regarding applicable standards of care,
   sult. Moreover, because the Legislature                 the manner in which the care rendered
   authorized a single, thirty day extension               by the physician or health care provider
   for deficient reports, health care provid-             failed to meet the standards, and the
   ers face only a minimal delay before a                 causal relationship between that failure
   report's sufficiency may again be chal-                 and the injury, harm, or damages
   lenged and the case dismissed, if war-                 claimed."
   ranted."                                             The qualifications and experience neces-
If after an extension has been granted, the             sary for an expert are prescribed in great
defendant again moves to dismiss, we held               detail.56 The adequacy of a report is de-
in Lewis v. Funderincrk that a denial of                termined by whether it "represent[s] an
the motion is appealable."                              objective good faith effort to comply" with

47. In re McAllen Med. Ctr., Inc., 275 S.W.3d           52.     253 S.W.3d 204, 207-208 (Tex.2008).
  458, 461-462 (Tex.2008).
                                                        53.     274 S.W.3d 681,685 (Tex.2009).
48. TEX. CIY. PRAC. & REM.CODE § 51.014(a)(9);
  Act of June 2, 2003, 78th Leg., R.S., ch. 204,
  § 1.03, 2003 Tex. Gen. Laws 847,849.                  54.     279 S.W.3d 633, 634 (Tex.2009).

49.   262 S.W-3d at 321.                                55.    TEX CIY PRAC   &   REM.CODE § 74.35I(r)(6).

50.   u.                                                56.     Id. §§ 74.35l(r)(5). 74.401-.403.
51.   u.
556 Tex.                 346 SOUTH WESTERN REPORTER, 3d SERIES

the statutory definition." As we have ex-           comings, it "implicated Dr. Ogletree's con-
plained:                                            duct", so that the trial court was author-
   In setting out the expert's opimons on           ized to grant a thirty-day extension, and
   each of those elements, the report must          an appeal was prohibited'"
   provide enough information to fulfill two           [13,14] Ogletree's holding, though
   purposes if it is to constitute a good-          sound, can be extended only so far. To
   faith effort. First, the report must in-         stretch the meaning of deficient to include
   form the defendant of the specific con-          a sheet of paper with the two words, "ex-
   duct the plaintiff has called into ques-         pert report", written on it would mock the
   tion. Second, and equally important,             Act's requirements. The expert report in
   the report must provide a basis for the          Lewis was substantively no more than
   trial court to conclude that the claims          that-one physician's thank-you letter to
   have merit."                                     another for referring the patient," In de-
No particular words 59 or formality 60 are          termining where to draw the line, we are
required, but bare conclusions will not suf-        guided by two considerations. One is that
fice." The report must address all the              the Act's principal purpose is to reduce the
elements," and omissions may not be sup-            expense of health care liability claims.
plied by inference."                                The Legislature could reasonably have de-
   [12] But as we have seen, the Act al-            termined that that purpose is served by an
lows a claimant a thirty-day period to cure         interlocutory appeal from the denial of a
deficiencies before the trial court finally         motion to dismiss for want of an adequate
determines that the report is inadequate            expert report, but as we observed in Ogle-
and the claim must be dismissed. In Ogle-           tree, permitting two such appeals-one be-
tree, we rejected the argument that a defi-         fore the thirty-day cure period and one
cient report is no report." There, the              after-is simply wasteful. The other con-
claimant provided the opinion of a radiolo-         sideration is the goal of the Act's expert
gist, without a curriculum vitae, on a urolo-       report requirement: to deter frivolous
gist's standard of care." Dr. Ogletree ar-          claims. An inadequate expert report does
gued that the report was really no report           not indicate a frivolous claim if the report's
at all, but we held that despite its short-         deficiencies are readily curable.

57.   Id. § 74.351(1).                              62. Id. ("Nor can a report meet these purposes
                                                      and thus constitute a good-faith effort if it
58.  Am. Transitional Care Ctrs. of Tex., Inc. v.     omits any of the statutory requirements.").
  Palacios, 46 S,W.3d 873.879 (Tex.200t).

59.  Bowie Mem'l Hosp. v, Wright, 79 S.W.3d         63. See Bowie Mem'l Hosp., 79 S.W.3d at 53
  48, 53 (Tex.2002) (per curiam) ("[A) report's       ("[T]he report must include the required in-
  adequacy does not depend on whether the             formation within its four corners.").
  expert uses any particular 'magical words.' "),
                                                    64. Ogletree v. Matthews, 262 S.W.3d 316,
60.  Palacios, 46 S.W.3d at 879 ("The report          320-321 (Tex.2007).
  can be informal in that the information in the
  report does not have to meet the same re-         65.   Id.at318.
  quirements as the evidence offered in a sum-
  mary-judgment proceeding or at trial.").
                                                    66.   [d. at 321.
61. Id. ("A report that merely states the ex-
  pert's conclusions about the standard of care,    67. Lewis v. Funderburk, 191 S.W.3d 756,762-
  breach, and causation does not fulfill these        763 (Tex.App.-Waco 2006) (Gray, Ci.L, dis-
  two purposes.").                                    senting). rev'd, 253 S.W.3d 204 (Tex.2008).
                                      SCORESBY v, SANTILLAJ."l                              Tex.   557
                                       Clte as 346 S.W.3d 546 (Tex. 2011)

   [15.16] We conclude that a thirty-day                  press no view on the adequacy of Dr.
extension to cure deficiencies in an expert               Marable's qualifications; the trial court did
report may be granted if the report is                    not specifically address the matter, and it
served by the statutory deadline, if it con-              is premature for us to consider it. But the
tains the opinion of an individual with ex-               dissent's arguments, we believe, show the
pertise that the claim has merit, and if the              wisdom of our approach in determining
defendant's conduct is implicated. We                     what qualifies as an expert report.
recognize that this is a minimal standard,
                                                             The dissent acknowledges that, as in
but 'we think it is necessary if multiple
                                                          Ogletree, a radiologist is qualified to opine
interlocutory appeals are to be avoided,
                                                          on "whether the urologist should have in-
and appropriate to give a claimant the
                                                          volved radiology-related devices and tech-
opportunity provided by the Act's thirty-
                                                          niques (the specialty in which the expert
day extension to show that a claim has
                                                          was qualified) in treating the patient and
merit. All deficiencies, whether in the ex-
                                                          whether the failure to do so resulted in
pert's opinions or qualifications, are sub-
                                                          injury." 69 In that instance, the dissent
ject to being cured before an appeal may
                                                          contends, there is an "apparent closely-
be taken from the trial court's refusal to
                                                          related connection" between radiology and
dismiss the case.
                                                          neurology." The dissent sees no such con-
                       III                                nection between neurology and ENT sur-
   [17-19] Dr. Marable's letter in this                   gery that damages the brain." But surely
case easily meets this standard. Claiming                 a neurologist's expertise is relevant in ex-
expertise as a neurologist, he described                  plaining the connection between the Physi-
the injury to Samuel's brain, ascribed it to              cians' injury to blood vessels during sur-
the Physicians' breach of the standards of                gery and the hemiparesis and weakness
care, and stated that their breach caused                 Simon suffered. What further relevance
Samuel's partial paralysis and other linger-              that expertise has to Santillan's claim
ing debilities. As an expert report, Dr.                  should first be addressed by the trial
Marable's letter was deficient. For exam-                 court. In no event, however, do we think
ple, it did not state the standard of care                a claimant's opportunity to cure and a
but only implied that it was inconsistent                 defendant's immediate right to appeal
with the Physicians' conduct. But there is                should turn on such fine distinctions, ei-
no question that in his opinion, Santillan's              ther in an expert's qualifications or in his
claim against the Physicians has merit.                   opinions.
   [20] The dissent argues that Dr. Mara-                    This case also demonstrates the difficul-
ble was not qualified to give an opinion                  ty with any more stringent standard. The
about the Physicians' conduct because he                  trial court denied the Physicians' motions
is only a neurologist, not a surgeon, and                 to dismiss and ordered that Santillan have
therefore his letter is so deficient it does              a thirty-day extension to cure deficiencies
not qualify as an expert report. The Act                  in Dr. Marable's report nearly three years
requires that Dr. Marable's knowledge,                    ago. Santillan had already served an
training or experience, and practice be                   amended report, in response to which the
"relevant" to Santillan's claim." We ex-                  Physicians had filed renewed objections

68. See    TEX     CIV.   PRAC.       &    REM. CODE      70.   ld.
  § § 74.3SI(r)(S), 74.40\(a), (c).
                                                          71.   Id.
69.   Post at - .
558       Tex.          346 SOUTH WESTERN REPORTER, 3d SERIES

and again moved to dismiss the case.                    ly it is squarely presented, and I am confi-
Now that we have dismissed this appeal                  dent today's decision will brighten the line
for want of jurisdiction, the trial court will          between deficient-report cases (where an
rule on the objections to the. amended re-              extension is discretionary) and no-report
port and the motions to dismiss. Whatev-                cases (where dismissal is mandatory).
er the ruling, another appeal will undoubt-                                 *      *       *
edly follow. Our holding today will all but
                                                           In a trio of concurrences in 2007,2 2008.;)
eliminate the first, wasteful appeal. Just
                                                        and 2009,4 I focused on this nagging ques-
as importantly, it will help assure that a
                                                        tion: Is there a legal difference between
claimant, after being apprised of a defen-
                                                        filing nothing and filing something that
dant's objections to an expert report, and
                                                        amounts to nothing? That is, can a filing
having had an opportunity to discuss those
                                                        be so utterly lacking in the required statu-
objections at a hearing before the trial
                                                        tory elements as to be no report at all,
court, will have a fair opportunity to cure
                                                        thus requiring dismissal? I join today's
any deficiencies and demonstrate that his
                                                        decision, which I read to confirm my con-
claim is not frivolous and should be deter-
mined on the merits.                                    sistently stated view: If a document bears
                                                        zero resemblance to what the statute envi-
                   *       *       *                    sions-more to the point, if it never as-
   Accordingly, the judgment of the court               serts that anyone did anything wrong-it
of appeals dismissing this appeal for want              cannot receive an extension.
of jurisdiction is
                                                           In Ogletree v. Matthews, I described
     Affi:nned.                                         what I naively hoped would be "a rare bird
                                                        in Texas legal practice" 5_a plaintiff pass-
  Justice WILLETT filed a concurring
opinion.                                                ing off as a bona fide report a document so
                                                        facially absurd that, "no matter how chari-
   Justice JOHNSON filed a dissenting                   tably viewed, it simply cannot be deemed
opinion, in which Justice WAINWRIGHT                    an 'expert report' at all, even a deficient
joined.                                                 one." 6 The deficient-or-no-report issue
     Justice WILLETT, concurring.                       was not present in Ogletree, but I noticed
   Since 2006 we have circled an issue both             it in another then-pending case, Lewis v.
recurring and elusive: whether any docu-                Funderburk, filed one week before Ogle-
ment, even one that never accuses anyone                tree.1
of committing malpractice, suffices to war-               In Funderburk, the Court confronted
rant an unreviewable thirty-day extension               "an actual sighting of this rare bird, a
under Section 74.351(c).1 Until today, the              species that in my view merits extinction,
issue was procedurally (and frustratingly)              not conservation." 8 The "report" in Fun-
unreachable and thus unresolvable. Final-               derburk was a thank-you letter from one

I.    See TEX.   CIV. PRAC & REM.CODE    § 74.35I(c).   5.    262 S.W.3d at 324 (Willett, J., concurring),

2.     Ogletree v, Matthews, 262 S.W.3d 316, 323
                                                        6.    [d. at 323.
     (Tex.2007) (Willett, J., concurring).

3.    Lewis v. Funderburk, 253 S.W.3d 204, 210          7.     Funderburk, 253 S. W.3d at 2.09 (Willett, J.,
     (Tex.200S) (Willett, J., concurring).                   concurring).

4.    [11 re Watkins, 279 S.W.3d 633, 636 (Tex.
                                                        8.    [d.
     2009) (Willett, J.. concurring).
                                     SCORESBY v.         S~"lTILLAN                         Tex.    559
                                      Cite as 346 S.W.3d 546 (Tex. 2011)

doctor to another-a letter that never once              ry-dismissal provision u-or alternatively,
in any manner, way, shape, or form ac-                  this Court's express adoption of a grace-
cused anYQtL8 of malpractice."          This            period test that is indeed gracious, allow-
thpnks-for-your-referral letter was no                  ing extensions for most everything.
more a medical-expert report "than a doc-                  Under the Court's admittedly "lenient
tor-signed prescription or Christmas card               standard," 15 the document must merely
would be," I wrote, adding, "If a report is             "[contain] a statement of opinion by an
missed, not just amiss, courts are remiss if            individual with expertise indicating that
they do not dismiss." 111 Alas, the defen-              the claim asserted by the plaintiff against
dant did not ':"'aise the "no report" issue,            the defendant has merit." 16 The line is
thus foreclosing a merits-based challenge."             forgiving but bright: The "report" must
   Finally came In re Watkins, where a                  actually allege someone committed mal-
plaintiff merely filed a narrative of treat-            practice. The genesis of this elemental
ment, something that omitted every statu-               requirement is found in Ogletree, where
torily required element and had no appar-               the Court first indicated that the purport-
ent relationship to a medical-malpractice               ed report must implicate a provider's con-
case." Like Funderburk, this case also                  duct. 17 It merits emphasis, however, that
had a procedural wrinkle that kept the                  today's standard, benevolent as it is, is not
marquee "no report" vs. "deficient report"              satisfied by any medical-related piece of
issue out of reach. 13 But the rare-bird                paper; the bar is low but not subterrane-
sightings, I noticed, were becoming more                an. For example, the "report" in Funder-
commonplace. And they would proliferate                 burk would surely fail even today's lax
on our docket, I predicted, absent appel-               test. The thank-you letter in that case
late enforcement of the statute's mandato-              never mentioned malpractice by anyone,

9.     The leiter is reproduced in its entirety in        mus is unnecessary. If the report was merely
     Chief Justice Gray's dissent in the court of         deficient, then an interlocutory appeal was
     appeals.     See Lewis v. Funderburk, 191            prohibited, and granting mandamus to review
     S.W.3d 756, 762-63 (Tex.App.-Waco 2006)              it would subvert the Legislature's limit on
     (Gray, c.r.. dissenting), rev'd, 253 S.W.3d 204      such review.") (citations omitted).
     (Tex.2008 ).
                                                        14. My sense is that such sightings have in-
10. Funderburk, 253 S.W.3d at 210-11 (Willett,            deed grown more prevalent, making Chapter
  J., concurring).                                        74 defendants perhaps "identify with the sea-
                                                          side residents of Bodega Bay, besieged by
II.     [d. at 208 (majority opinion) ("We do not         avian attacks," In re Walkins, 279 S.W.3d at
     reach the question addressed in the concur-          637 n. 13 (Willett, J., concurring) (citing THE
     ring opinions here because it is not raised.         BIRDS (Universal Pictures 1963»). or else
     As stated in his reply brief. '(Dr.] Lewis has       those Arkansans who witnessed the so-called
     made it abundantly clear that he is not ap-          Aflockalypse last New Year's Eve, when thou-
     pealing the trial court's [initial] order (no        sands of blackbirds and starlings fell mvsteri-
     matter how vehemently he disagrees with it):         ously from the skies.
     but instead is only appealing the order deny-
     ing his second motion to dismiss.").
                                                        15.   346 S.W.3d 546, 549.
12.     279 S.W.3d at 637 (Willett, J.. concurring).
                                                        16.   [d. at 549.
13. [d. at 634 (majority opinion) ("The sepa-
  rate writings join issue again today on the           17. 262 S.W.3d at 321 ("Because a report I!WI
  question whether the item served was a defi-            implicated Dr. Ogletree's conduct was served
  cient report or no report at all. But here it           and the trial court granted an extension. the
  does not matter. If no report was served,               court of appeals could not reach the merits of
  interlocutory appeal was available, so ruanda-          the motion to dismiss.") (emphasis added).
560    Tex.        346 SOUTH WESTERN REPORTER, 3d SERIES

 even in the most implicit or glancing man-       elements are absent as opposed to defi-
.nero Again, it is not merely that the letter     cient:
 omitted every required statutory element.          (b) If, as to a defendant physician or
 Rather, it never even hinted at having any         health care provider, an expert report
 relationship to a malpractice case at all-         has not been served within the period
 no mention of a claim or a defendant, much         specified by Subsection (a), the court, on
 less a claim that "an individual with exper-       the motion of the affected physician or
 tise" indicates "has merit." 18                    health care provider, shall, subject to
               *      *       *                     Subsection (c), enter an order that:
   Based on my understanding of the                    (l) awards to the affected physician
Court's "minimal standard" 19_r equiring               or health care provider reasonable at-
that someone with expertise express an                 torney's fees and costs of court in-
opinion that the plaintiff has a meritorious           curred by the physician or health care
malpractice claim against the defendant-I              provider; and
join the Court's decision.
                                                       (2) dismisses the claim with respect to
 Justice JOHNSON, joined by Justice                    the physician or health care provider,
WAINWRIGHT, dissenting.                                with prejudice to the refiling of the
                                                       claim.
   The Court says that a plaintiff who time-
ly files a defective expert report is eligible      (c) If an expert report has not been
for an extension of time to cure the report         served within the period specified by
if                                                  Subsection
   [the report] contains a statement of             (a) because elements of the report are
   opinion by an individual with expertise          found deficient, the court may grant one
   indicating that the claim asserted by the        3o-day extension to the claimant in or-
   plaintiff against the defendant has merit.       der to cure the deficiency.
   An individual's lack of relevant qualifica-    TEX. Crv. PRAC. & REM.CODE § 74.35l(b),
   tions and an opinion's inadequacies are        (c); 1 see In re Watkins, 279 S.W.3d 633,
   deficiencies the plaintiff should be given     634-35 (Tex.2009) (Johnson, J., concurring)
   an opportunity to cure if it is possible to    ("The definition [of expert report] requires
   do so.                                         that for a document to qualify as a statuto-
:346 S.W.3d 546, 549. In my view the              ry expert report, it must demonstrate
Court's standard does not conform to re-          three things: (1) someone with relevant
quirements the Legislature imposed in au-         expertise (' "[ejxpert report" means a writ-
thorizing an extension to cure a deficient        ten report by an expert'), (2) has an opin-
report. I respectfully dissent.                   ion ('that provides a fair summary of the
   A trial court is statutorily authorized to     expert's opinions'), and (3) that the defen-
grant an extension to cure elements of an         dant was at fault for failing to meet appli-
expert report that are found deficient, not       cable standards of care and thereby
to cure a report that substantively is not a      harmed the plaintiff.... "), Absent an ex-
report, nor to cure a report from which           pert with relevant expertise, I do not see

18. 346 S.W.3d at 549. The narrative in In re     19. Id. at 557.
  Watkins might also fail today's test, as it
  lacked every required statutory element.        1. Further references to the Civil Practice and
  though unlike the referral letter in Fumier-      Remedies Code will be by referring to section
  burk, it at least mentions (twice) the defen-
                                                    numbers unless otherwise indicated.
  dant physician's name.
                                    SCORESBY v, SANTILLAN                                Tex. 561
                                    CUe as 346 S.W.3d 546 (Tex. 2011)

how there can be an expert report under               (Tex.2ooS)). The Court has recognized
the statute, because the foundation of an             that not every doctor is qualified to render
expert report is the requirement that the             an opinion about every aspect of medicine
report be by a qualified expert: "Expert"             or medical science. In re McAllen Med.
for purposes of a report means:                       Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2ooS);
  [Wlith respect to a person giving opinion           Broden, v. Heise, 924 S.W.2d 14S, 152
  testimony regarding whether a physi-                (Tex.1996) ("[G]iven the increasingly spe-
  cian departed from accepted standards               cialized and technical nature of medicine,
  of 'medical care, an expert qualified to            there is no validity, if there ever was, to
  testify under the requirements of Sec-              the notion that every licensed medical doc-
  tion 74.401. . . .               .                  tor should be automatically qualified to
TEX.        Crv.     PRAC.      &      REM.CODE       testify as an expert on every medical ques-
§ 74.35l(r)(5)(A). Section 74.401 provides            tion.").
specific requirements for an expert to be                The Court's new test apparently allows
qualified to provide the section 74.351 re-           a report to qualify as a deficient report
port:                                                 even if the report demonstrates none of
  (a) In a suit involving a health care lia-          the three requirements of section
  bility claim against a physician for injury         74.401(a). The test requires only that the
  to or death of a patient, a person may              person rendering the opinion have some
  qualify as an expert witness on the issue
                                                      type of undefined level of expertise. It
  of whether the physician departed from
                                                      abandons the requirements that the report
  accepted standards of medical care only
                                                      show the expert (1) has knowledge of ac-
  if the person is a physician who:
                                                      cepted standards of care for the diagnosis,
      (1) is practicing medicine at the time
                                                      care, or treatment of the illness, injury, or
      such testimony is given or was prac-
                                                      condition involved in the claim; and (2)
      ticing medicine at the time the claim
                                                      qualifies on the basis of training or experi-
      arose;
                                                      ence to offer an expert opinion regarding
      (2) has knowledge of accepted stan-
                                                      those accepted standards of medical care.
      dards of medical care for the diagno-
                                                      See TEX. CIV. PRAC. & REM.CODE
      sis, care, or treatment of the illness,
                                                      § 74.401(a)(2), (3). Nor does the test re-
      injury, or condition involved in the
      claim; and                                      quire a showing that the expert is practic-
                                                      ing medicine or was doing so when the
      (3) is qualified on the basis of training
                                                      claim arose. See id. § 74.401(a)(1).
      or experience to offer an expert opin-
      ion regarding those accepted stan-                 Dr. Marable's report says nothing about
      dards of medical care.                          his surgical qualifications. The report
Id. § 74.401(a). The Court has said that              does not give any facts or information
"[a] report by an unqualified expert will             which would qualify him to opine on the
sometimes (though not always) reflect a               standards of care for the type of surgery
good-faith effort sufficient to justify a 30-         performed in this case, and he did not
day extension." In re Busier, 275 S.W.3d              attach a CV to the report," The report
475, 477 (Tex.2ooS) (per curiam) (citing              was written on a letterhead showing that
Leland v. Brandel; 257 S.W.3d 204, 208                he maintains board certification in neurolo-

2.     An amended report by Dr. Marable with a           it did not show that Dr. Marable had any
     CV attached was filed on the day the defen-         training or expertise in the type of surgery
     dants' motions to dismiss were heard. The           involved here.
     CV was not considered bv the trial court, but
562      Tex.          346 SOUTH WESTERN REPORTER, 3d SERIES

gy and psychiatry. In his report he makes .           expert report had been filed because the
it clear that he is basing his jipinion on his        report was by a radiologist who was not
expertise in neurology, not surgery: "AR a            qualified to express an opinion on the stan-
board certified neurologist, my opinion is            dard of care for a urologist. 262 S.W.3d
that Dr. Ducic violated the standards" 'Of            316, 319 (Tex.2007). The urologist defen-
care, as well as Dr. Scoresby, and as' a              dant had performed a urethral catheteriza-
result [Santillan's] damages are that of a            tion during which the patient suffered
right-sided hemiparesis with possibility of           bruising and bladder perforation. Id. at
seizure foci in the future." The neurologi-           317. We held that the radiologist's report
cal expertise on which Dr. Marable. relies            was deficient, not absent. Id. at 320. But
does not involve surgery. See WILSON                  in Ogletree the radiologist was opining
STEGEMAN. MEDICAL TERMS SIMPLIFIED 106                about whether the urologist should have
(1976) (noting that neurologists do not per-          performed the catheterization under flou-
form surgery); American Academy of                    roscopic guidance in order to avoid or
Neurology, Working unih. Your Doctor,                 more timely diagnose the perforation. Id.
https://patients.aan.comlgoiworkingwith               at 318. In that instance, the radiologist
yourdoctor (last visited Apr. 18, 2011)               was opining about whether the urologist
("Neurologists do not perform surgery.").             should have involved radiology-related de-
Dr. Marable's report does not claim that              vices and techniques (the specialty in
he now performs or has in the past per-               which the expert was qualified) in treating
formed surgery, much less this particular
                                                      the patient and whether the failure to do
type of surgery. The report neither
                                                      so resulted in injury. The matter before
claims that he has knowledge of the stan-
                                                      us is different from Ogletree because there
dard of care for performing the surgery
                                                      is no apparent closely related connection
nor that he is qualified on the basis of
                                                      between the expertise involved in the spe-
training or experience to offer an expert
                                                      cialty of neurology and the expertise in-
opinion on those standards of care. See
                                                      volved in knowing how to perform, and
TEX. CIV. PRAC. & REM.CODE 74.40l(a)(2), (3).
                                                      performing, the surgery performed by
The report does not say that he has partic-
ipated in, observed, or even read about               Drs. Scoresby and Ducic.
how to do "procedures of left mediomaxil-                In McAllen Medical Center, 275 S.W.3d
lectomy, excision of neoplasm of the maxil-           458, we considered the validity of a doc-
la, calvarial bone growth and reconstruc-             tor's expert reports in negligent creden-
tion of maxilla and excision of tumor of              tialing suits against the medical center.
pterygopalatin structures," which were the            McAllen challenged the adequacy of the
surgical procedures performed by Drs.                 reports on the basis that the doctor was
Scoresby and Ducic.' In short, nothing in             not qualified to express opinions as to the
Dr. Marable's report raises an inference              credentialing process. Id. at 462. We
that he is a qualified expert as to this type         agreed with McAllen and held that the
of surgery, as prescribed by statute, and             reports were inadequate:
the report is all that was before the trial                 On this record, the plaintiffs have not
court in regard to his qualifications.                   established Dr. Brown's qualifications.
  In Ogletree v. Matthews, we considered                 "The standard of care for a hospital is
a defendant's contention that no statutory               what an ordinarily prudent hospital

3.     Santillan's attorney represented during oral     Marable that he had seen surgery of this type
     argument that he believed Dr. Marable's            because he had treated patients after they had
     amended report contained statements by Dr.         the surgery.
                               SCORESBY v, SANTILLAN                                Tex. 563
                                 Cite as 346 S.W.3d 546 (Tex. 2011)

   would do under the same or similar cir-          care and those negligent activities having
    cumstances." Nothing in the record              caused damages were sufficient to support
    here shows how Dr. Brown is qualified           an extension of time. But the report sets
    to address this standard. Nor can we            out his opinion as a neurologist, not a
    infer that she may have some knowledge          physician with surgical expertise. The
    or expertise that is not included in the        Legislature did not intend that an expert
    record.                                         report could be bya doctor with no dem-
       Moreover. "a negligent credentialing         onstrated or inferable experience and
    claim involves a specialized standard of        training in-a practice area who reads medi-
    care" and "the health care industry has         cal records and writes a report containing
    developed various guidelines to govern a        the simplistic indictments in the report
    hospital's credentialing process." Dr.          here: the defendants negligently lacerated
    Brown's reports contain no reference to         the brain and further surgery was re-
    any of those guidelines, or any indication      quired. See TEX. CIV PRAC. & REM.CODE
    that she has special knowledge, training,       § 74.40l(a).
    or experience regarding this process.
    Nor was Dr. Brown qualified merely                 The Court says that "'there are consti-
    because she is a physician; "given the          tutional limitations upon the power of
    increasingly specialized and technical          courts ... to dismiss an action without
    nature of medicine, there is no validity,       affording a party the opportunity for a
    if there ever was, to the notion that           hearing on the merits of his cause.''' 346
    every licensed medical doctor should be         SW.3d at 554 (quoting TransAmerican
    automatically qualified to testify as an        Natural Gos Corp. v. Powell, 811 S.W.2d
    expert on every medical question."              913, 918 (Tex.l991). I agree. But the
Id. at 463 (citations omitted).                     statement does not fit here. First of all,
                                                    the constitutionality of the statute is not
    The substance of the issue before us is
                                                    challenged. Second, even if it were, the
similar to the issue we decided in McAllen
Medical Center. Dr. Marable's report in-
                                                    statutory requirement of a timely report
dicates that the defendants violated stan-          by a qualified expert did not spring upon
dards of care for the surgery and their             Santillan without warning. The require-
negligent activity caused damages to San-           ment was in place before the surgery took
tillan. But Dr. Marable's report does not           place in January 2006, while suit was not
show he was qualified under the statute to          filed against the defendant doctors and
give such an expert opinion, nor did his            Tarrant County Hospital until January
opinion about the surgeons' decisions and           2008. Santillan had time to find a quali-
actions during surgery involve his special-         fied expert to provide the report required
ty except to the extent a physician with his        to show his claim had merit, if he could
specialty would have been involved in post-         find such an expert.
surgical care and possibly a decision to               I would hold that failure to timely serve
reoperate.                                          a report by an expert qualified under the
    If Dr. Marable's report had in some             statute is not merely a deficiency in an
manner demonstrated that he was quali-              element of the report, it is a deficiency
fied to render an opinion about the stan-           going to the question of whether the re-
dard of care for the surgery involved, then         port is competent and is entitled to be
I might agree that his conclusory state-            given any weight. And I would hold that
ments about the defendants having negli-            it is not an expert report and the tiling of
gently violated applicable standards of             such a report supports inferences that a
    564 Tex.           ;~46   SOUTH WESTERN REPORTER, 3d SERIES

    proper report by a qualified expert was          :3. Habeas Corpus e::>463.1
~   not available, the claim lacks merit, and             Defendant may challenge an indict-
    the claim should be dismissed.                   ment .that, on its face, is barred by the
      I would reverse the judgment of the            statute of timitations by way of a pretrial
    court of appeals and dismiss the case. See       application for writ of habeas corpus.
    Badiga v. Lopez, 274 S.W.3d 681. .684-85
                                                     4. Habeas Corpus e=>463.1 ",
    (Tex.2009).
                                                          If an indictment alleges that the stat-
                                                     ute of limitations is tolled, the sufficiency
                                                     of that tolling allegation may not be chal-
                                                     lenged by a pretrial writ of habeas corpus.
                                                     5. Habeas Corpus e=>463.1, 474
           Ex parte Tenika BROOKS.                        Facially barred indictments that can-
               No. 12-06--00378-CR.                  not be repaired have a defect that is incur-
                                                     able, and the statute of limitations is an
            Court of Appeals of Texas,
                                                     absolute bar to prosecution, but a repara-
                      Tyler.
                                                     ble indictment or tolling provision may be
                   June 20, 2007.                    amended and any defect repaired; thus,
           Discretionary Review Granted              the first is the proper subject of a pretrial
                    Oct. 10, 2007.                   application for habeas corpus, the second
    Background: Defendant charged by in-             is not.
    dictment with aggregate theft applied for        6. Habeas Corpus e=>814
    pretrial writ of habeas corpus. The 145th              Appellate court lacked jurisdiction to
    Judicial District Court, Nacogdoches             address merits of theft defendant's inter-
    County, Campbell Cox II, J., denied appli-       locutory appeal from denial of her pretrial
    cation, and defendant took interlocutory         application for writ of habeas corpus,
    appeal.
                                                     where defendant's complaint as to suffi-
    Holding: The Court of Appeals, Brian             ciency of state's anticipated argument as to
    Hoyle, J., held that it lacked jurisdiction to   tolling of statute of limitations was not
    address merits of defendant's appeal.            proper subject of pretrial application for
    Appeal dismissed.                                writ of habeas corpus, and both imputed
                                                     tolling allegation and indictment itself
    1. Criminal Law e=>147, 157                      were reparable.
         Prosecutions for theft as a felony          7. Habeas Corpus e=>275.1
    must be initiated within five years of the            Trial court's decision to dismiss first
    theft; however, that period of limitations is    indictment against defendant charged in
    tolled for the time that an indictment is        second indictment with aggregate theft
    pending. Vernon's Ann.Texas C.C.P. arts.         could not be raised by pretrial application
    12.0l(4)(A), 12.05(b).
                                                     for writ of habeas corpus, where defendant
    2. Criminal Law e=>157                           had remedies at law and potential injury
         Prior indictment tolls the statute of       resulting from delaying consideration of
    limitations when the subsequent indict-          issue until after conviction and' appeal was
    ment alleges the same conduct, same act,         neither proximate nor serious; defendant
    or same transaction. Vernon's Ann.Texas          had adequate remedies on appeal, or could
    C.C.P. art. 12.05(b).                            tile motion to dismiss or quash second
