                            NUMBER 13-04-00480-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RICARDO BARRERA, M.D.,                                                     Appellant,

                                           v.

ISELA RICO AND MANUEL RICO,
INDIVIDUALLY AND AS PARENTS AND
NEXT FRIENDS OF GLORIA RICO, A MINOR,                                      Appellees.


  On appeal from the 206th District Court of Hidalgo County, Texas.


               MEMORANDUM OPINION ON REMAND

               Before Justices Yañez, Garza, and Vela
           Memorandum Opinion on Remand by Justice Garza

      On remand from the Texas Supreme Court, we address the contentions made by

appellant, Ricardo Barrera, M.D., that the trial court erred: (1) in granting a motion to

extend the expert report deadline filed by appellees, Isela Rico and Manuel Rico,

individually and as parents and next friends of Gloria Rico., a minor (collectively “the

Ricos”); and (2) in denying Barrera’s motions for sanctions and dismissal for the Ricos’
failure to file an expert report that conformed to the requirements of former article 4590i

of the Texas Revised Civil Statutes.1 We affirm.

                                               I. BACKGROUND

        On August 29, 2003, the Ricos filed suit against Barrera for medical malpractice.

On January 26, 2004, the Ricos filed a motion to extend the expert report deadline and to

compel deposition of Barrera. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01(f),

1995 Tex. Gen. Laws 985, 986 (former TEX REV. CIV. STAT . art. 4590i, § 13.01(f)), repealed

by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

After a hearing on February 13, 2004, the trial court granted the Ricos’ motion and

extended the expert report deadline from the original date of February 18, 2004 to March

19, 2004. See id. On March 22, 2004, the Ricos filed an expert report from John Spurlock,

M.D.

        On March 24, 2004, Barrera filed a motion for sanctions and dismissal, claiming that

Spurlock’s expert report was untimely. See Act of May 5, 1995, 74th Leg., R.S., ch. 140,

§ 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). After a hearing on

April 12, 2004, the trial court denied Barrera’s motion for sanctions and dismissal on July

2, 2004. On May 26, 2004, Barrera filed a second motion for sanctions and dismissal,

contending that Spurlock’s expert report was inadequate. See id.; see also Act of May 5,

1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 986

(repealed 2003). After a hearing, the trial court denied Barrera’s second motion for



        1
              Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws 985, 986 (form er T EX
R EV . C IV . S TAT . art. 4590i, § 13.01), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003
Tex. Gen. Laws 847, 884. Form er article 4590i was replaced by House Bill 4 (now Chapter 74 of the Texas
Civil Practice and Rem edies Code), which governs health care liability claim s com m enced on or after
Septem ber 1, 2003.

                                                         2
sanctions and dismissal on July 22, 2004.

       On August 24, 2004, the Ricos filed a notice of nonsuit without prejudice on their

claims against Barrera, which the trial court granted. Barrera appealed the trial court’s

denial of his motions for sanctions and dismissal. This Court held that the Ricos’ nonsuit

of their claims against Barrera rendered the interlocutory orders moot thus depriving the

Court of jurisdiction. Barrera v. Rico, No. 13-04-480-CV, 2005 Tex. App. LEXIS 5683, at

*2 (Tex. App.–Corpus Christi July 21, 2005), rev’d, 251 S.W.3d 519, 520 (Tex. 2008) (per

curiam).

       The Texas Supreme Court reversed this Court’s decision and remanded the matter

for consideration in light of its holding in Villafani v. Trejo, 251 S.W.3d 466, 471 (Tex.

2008). See Barrera, 251 S.W.3d at 520. In Villafani, the supreme court concluded that

Villafani’s motion for sanctions and dismissal survived the Ricos’ nonsuit and “could be the

subject of an appeal.” Villafani, 251 S.W.3d at 471. In Barrera, the supreme court noted

that the underlying facts were similar to Villafani and, therefore, concluded that this Court’s

“judgment that it lacked jurisdiction in this case is thus erroneous.” Barrera, 251 S.W.3d

at 520. Therefore, we must analyze the propriety of the trial court’s denial of Barrera’s

motion for dismissal and sanctions.

                                   II. STANDARD OF REVIEW

       We review a trial court’s decision to dismiss a case under section 13.01(e) of former

article 4590i under an abuse of discretion standard. See Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court abuses its discretion

if it acts arbitrarily or unreasonably without reference to any guiding rules or principles. See

Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Strom v. Mem’l Hermann Hosp. Sys.,


                                               3
110 S.W.3d 216, 220 (Tex. App.–Houston [1st Dist.] 2003, pet. denied).

                                                 III. ANALYSIS

        In his sole issue, Barrera asserts that the trial court abused its discretion in granting

the Ricos’ motion to extend the expert report deadline and in denying his motion for

sanctions and dismissal. Specifically, Barrera contends that the Ricos did not demonstrate

good cause entitling them to a thirty-day extension, and, even if the extension was properly

granted, the Ricos failed to file Spurlock’s expert report prior to the extended deadline.

Additionally, Barrera argues that Spurlock’s report was inadequate. The Ricos counter by

arguing that they offered sufficient evidence of good cause that was not controverted by

Barrera; therefore, the trial court did not abuse its discretion in granting their motion to

extend the expert report deadline. Additionally, the Ricos contend that Spurlock’s expert

report sufficiently addressed the required elements for an expert report in a medical

malpractice suit.

A. Applicable Law

        Section 13.01(d) of former article 4590i provides that:

               Not later than the later of the 180th day after the date on which a
        health care liability claim is filed or the last day of any extended period
        established under Subsection (f) or (h) of this section, the claimant shall, for
        each physician or health care provider against whom a claim is asserted:

                  (1) furnish to counsel for each physician or health care provider one
                  or more expert reports,[2] with a curriculum vitae of each expert listed

        2
            Section 13.01(r)(6) defines an “expert report” as a:

        written report by an expert that provides a fair sum m ary of the expert’s opinions as of the
        date of the report regarding applicable standards of care, the m anner in which the care
        rendered by the physician or health care provider failed to m eet the standards, and the
        causal relationship between that failure and the injury, harm , or dam ages claim ed.

Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 986 (repealed
2003).

                                                        4
              in the report; or

              (2) voluntarily nonsuit the action against the physician or health care
              provider.

Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985,

986 (repealed 2003). However, section 13.01(f) provides that “[t]he court may, for good

cause shown after motion and hearing, extend any time period specified in Subsection (d)

of this section for an additional 30 days. Only one extension may be granted under this

subsection.” See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(f), 1995

Tex. Gen. Laws 985, 986 (repealed 2003). If the requirements of section 13.01(d) are not

met, or a section 13.01(f) request is denied, or the grace period expires, the court shall:

       enter an order awarding as sanctions against the claimant or the claimant’s
       attorney:

              (1) the reasonable attorney’s fees and costs of court incurred by that
              defendant;

              (2) the forfeiture of any cost bond respecting the claimant’s claim
              against the defendant to the extent necessary to pay the award; and

              (3) the dismissal of the action of the claimant against that defendant
              with prejudice to the claim’s refiling.

Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985,

986 (repealed 2003); see Palacios, 46 S.W.3d at 877.

B. Discussion

       1. The Ricos’ Request to Extend the Expert Report Deadline

       On February 13, 2004, the trial court conducted a hearing on the Ricos’ request for

an extension of the expert report deadline. At this hearing, the Ricos argued that Barrera

had not made himself amenable to deposition, which prevented them from compiling a

comprehensive expert report. In addition, the Ricos asserted that they were unable to

                                             5
decipher Barrera’s handwritten notes pertaining to the treatment of the patient, hindering

their ability to produce a timely expert report.3 Based on these assertions, the Ricos

argued that they had established “good cause” warranting a thirty-day extension of the

expert report deadline.           Barrera did not produce evidence controverting the Ricos’

assertions.

        Barrera argues that the Ricos were not entitled to a thirty-day extension because

they did not present any evidence to the trial court in support of their contentions. Barrera,

however, does not cite, nor are we aware of, any authority requiring the Ricos to present

evidence at a hearing addressing a section 13.01(f) request. The Ricos were merely

required to demonstrate “good cause” for the extension. In any event, only the unsworn

statements of the Ricos’ trial counsel was presented at the hearing. Generally, “an

attorney’s statements must be under oath to constitute evidence. . . . However, such error

is waived by the failure to object when the opponent knew or should have known an

objection was required.” Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157,

165 (Tex. App.–Texarkana 2005, no pet.) (internal citations omitted). Barrera did not

object to the statements made by the Ricos’ trial counsel at the hearing; therefore, Barrera

waived this complaint and the statements of the Ricos’ trial counsel provided a sufficient

basis for the trial court to grant the Ricos’ section 13.01(f) extension request. See id.

        Barrera further argues that because Spurlock later admitted that he based his

opinions solely upon the review of the medical records provided by the hospital, the

deposition was unnecessary and was used solely for the purpose of securing an extension


        3
           The record indicates that Barrera objected to typing or otherwise producing his handwritten notes
in a legible form . Barrera later withdrew his objection and agreed to provide a type-written transcription of his
notes regarding the treatm ent of the patient.

                                                        6
to file Spurlock’s expert report. However, at the time of the hearing, the Ricos anticipated

that in deposing Barrera, they would procure valuable information for the expert report. As

such, Barrera’s reliance on Spurlock’s admission that he did not rely on the

deposition—made after the extension was granted—is irrelevant.

       The language of section 13.01(f) provides that the trial court may grant an extension

on a showing of good cause. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec.

13.01(f), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). The use of the word “may” in

a statute indicates that the provision is directory and not mandatory. See Roberts v. Med.

City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex. App.–Texarkana 1999, pet. denied)

(citing Weldon v. Weldon, 968 S.W.2d 515, 518 (Tex. App.–Texarkana 1998, no pet.)).

“When a trial court’s function is directory and not mandatory, the reviewing court should

give deference and wide latitude to the decision of the trial court. We should only reverse

upon a showing of a clear abuse of discretion.” Id.; see Schorp v. Baptist Mem’l Health

Sys., 5 S.W.3d 727, 732 (Tex. App.–San Antonio 1999, no pet.) (“Even where good cause

exists, the trial court would still be within its discretion to grant or deny an extension.”). We

conclude that Barrera has not shown that the trial court clearly abused its discretion in

granting the Ricos a thirty-day extension to file Spurlock’s expert report.

       2. Timeliness of Spurlock’s Expert Report

       After the February 13, 2004 hearing, the trial court granted the Ricos’ motion to

extend the expert report deadline thirty days from February 18, 2004 to March 19, 2004.

See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(f), 1995 Tex. Gen. Laws

985, 986 (repealed 2003). The Ricos did not file Spurlock’s expert report with the trial court

until March 22, 2004. However, Barrera’s trial counsel testified at the April 12, 2004


                                               7
hearing on Barrera’s first motion for sanctions and dismissal that he received a copy of

Spurlock’s expert report on March 16, 2004. Moreover, the certificate of service attached

to the report indicates that the Ricos served Spurlock’s expert report on all parties on

March 16, 2004.      Because section 13.01(d) merely required that the Ricos furnish

Spurlock’s expert report to Barrera’s counsel within the statutorily prescribed deadline, we

cannot say that the Ricos’ expert report is untimely. See Act of May 5, 1995, 74th Leg.,

R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003).

       3. The Adequacy of Spurlock’s Expert Report

       Generally, an expert report’s adequacy does not depend on whether the expert uses

any particular “magical words.” Windsor v. Maxwell, 121 S.W.3d 42, 48 (Tex. App.–Fort

Worth 2003, pet. denied) (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.

2002)). A report is sufficient if it “contains information summarizing and explaining the

causal relationship between the doctor’s failure to meet the applicable standards of care

and the plaintiff’s injury.” Id. (citing Bowie Mem’l Hosp., 79 S.W.3d at 53). The expert

must explain the basis of “his statements” linking “his conclusions” to the facts. See Earle

v. Ratliff, 998 S.W.3d 882, 890 (Tex. 1999).

       In Palacios, the Texas Supreme Court stated that:

       [t]he issue for the trial court is whether ‘the report’ represents a good-faith
       effort to comply with the statutory definition of an expert report. . . . That
       definition requires, as to each defendant, a fair summary of the expert’s
       opinions about the applicable standard of care, the manner in which the care
       failed to meet that standard, and the causal relationship between that failure
       and the claimed injury. Because the statute focuses on what the report
       discusses, the only information relevant to the inquiry is within the four
       corners of the document.

46 S.W.3d at 878 (internal citations omitted) (emphasis added). Moreover, an expert

report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on

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each of the elements identified in the statute in order to represent a good-faith effort. Id.

For simplicity, the supreme court fashioned a two-part inquiry for reviewing expert reports.

Id. at 879. “First, the report must inform the defendant of the specific conduct the plaintiff

has called into question. Second, and equally important, the report must provide a basis

for the trial court to conclude that the claims have merit.” Id.

       In their original petition, the Ricos alleged that Barrera’s “[f]ailure to appropriately

manage and treat [Isela’s] labor and delivery of Gloria” caused the following injuries:

       1. [S]he [Gloria] has been severely and permanently impaired and disfigured
       in the past, and will suffer from serious limitations and disfigurement in the
       future for the remainder of her natural life;

       2. [S]he has incurred extensive medical and rehabilitative care expenses in
       the past, and will continue to incur them in the future;

       3. [S]he will incur extensive medical and rehabilitative care expenses after
       obtaining the age of majority;

       4. [H]er ability to be gainfully employed and enjoy an earning capacity and
       wages in the future has been seriously diminished for the balance of her life;

       5. [S]he has endured great physical and mental pain, suffering and anguish,
       and in all reasonable probability will continue to suffer in this manner in the
       future; and

       6. [S]he has suffered loss of enjoyment of life, in the past and in the future.

       In his expert report, Spurlock stated the following:

              The standard of care required that Dr. Barrera use the appropriate
       maneuvers and not use excessive traction in order to relieve the shoulder
       dystocia. Dr. Barrera failed to document the use of any acceptable
       maneuvers to relieve the shoulder dystocia. The brachial plexus injury was
       more likely than not, from excessive traction by Dr. Barrera. Using excessive
       traction to relieve a shoulder dystocia is below the standard of care.
       Specifically, the standard of care required that Dr. Barrera utilize the
       appropriate maneuvers to try to relieve the shoulder dystocia. That would
       include the McRoberts maneuver, suprapubic pressure, delivery of the
       posterior arm, the Woods maneuver, the Rubin’s maneuver, and/or the
       Zavenelli maneuver. . . . The standard of care required that Dr. Barrera

                                              9
      perform all or some of these maneuvers in order to relieve the severe
      shoulder dystocia and safely deliver Gloria Rico. Dr. Barrera failed to
      document the use of any maneuver. As such, he more likely than not, did
      not utilize any other maneuvers as required by the standard of care to
      atraumatically and safely deliver the baby and breached the standard of
      care.

             ....

              The above-noted breaches of the standards of care by Dr. Barrera
      were, more likely than not, a proximate cause of Gloria Rico’s injuries
      including but not limited to her permanent right brachial plexus injury and its
      subsequent sequelae. As a result of Dr. Barrera’s failure to utilize
      appropriate maneuvers to alleviate the shoulder dystocia during the delivery
      of Gloria Rico, the nerves innervating the arm, shoulder and hand were more
      likely than not, stretched, torn or avulsed causing the right brachial plexus
      injury. Had Dr. Barrera met the above-noted standards of care, to a
      reasonable degree of medical probability, Gloria Rico would not have
      suffered these injuries and the subsequent sequelae. That is, by Dr. Barrera
      failing to alleviate the shoulder dystocia using appropriate maneuvers as
      noted above, failing to deliver Gloria Rico atraumatically and without
      excessive traction during the delivery of Gloria Rico and thereby allowing a
      traumatic vaginal delivery, Dr. Barrera’s breaches of the standards of care
      noted above, in reasonable medical probability, more likely than not,
      proximately caused the nerves innervating the right arm, shoulder and hand
      to be stretched, torn or avulsed causing the permanent brachial plexus injury
      and subsequent sequelae.

      Barrera argues that Spurlock’s expert report merely established that Barrera failed

to document the use of any acceptable maneuvers to relieve the shoulder dystocia. We

disagree.

      Spurlock’s expert report adequately set forth the standard of care pertaining to

Barrera, how that standard was breached, and the result—“Dr. Barrera’s breaches of the

standards of care . . . proximately caused the nerves innervating [sic] the right arm,

shoulder and hand to be stretched, torn or avulsed causing permanent brachial plexus

injury and subsequent sequelae [in Gloria].” See Act of May 5, 1995, 74th Leg., R.S., ch.

140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). Moreover,


                                            10
Barrera’s failure to document any of the maneuvers used to alleviate Gloria’s injuries, as

Spurlock stated in his expert report, also constituted a breach of the standard of care. See

Sides v. Guevara, 247 S.W.3d 293, 301-02 (Tex. App.–El Paso 2007, no pet.) (concluding

that Dr. Cartwright’s expert report, which noted that Dr. Sides’s failure to document what

type of surgery he performed was a breach of the standard of care, “provided a fair

summary . . . as to causation because it linked the failure of Dr. Sides to appreciate and

diagnose [Plaintiff’s] toe problems and to document the surgery he performed to the

subsequent infection in her knee”; therefore, the trial court did not abuse its discretion in

denying Dr. Sides’s motion to dismiss). Confining our review solely to Spurlock’s expert

report, we cannot say that the report lacked “sufficient specificity” to inform Barrera of the

specific conduct that the Ricos called into question, or to allow the trial court to determine

if the Ricos’ claims have merit; therefore, Spurlock’s expert report is adequate. See

Palacios, 46 S.W.3d at 879; see also Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1,

sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). We conclude that the

trial court did not abuse its discretion in denying Barrera’s motions for sanctions and

dismissal. See Palacios, 46 S.W.3d at 878; Walker, 111 S.W.3d at 62; Strom, 110 S.W.3d

at 220. Accordingly, we overrule Barrera’s sole issue on appeal.

                                      IV. CONCLUSION

       We affirm the judgment of the trial court.


                                                     _______________________
                                                     DORI CONTRERAS GARZA,
                                                     Justice

Memorandum Opinion on Remand delivered
and filed this the 6th day of November, 2008.


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