                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00155-CV

ANA MARIA GONZALEZ SALAIS,
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
RUBEN GONZALEZ, DECEASED,
                                                            Appellant
v.

TEXAS DEPARTMENT OF AGING &
DISABILITY SERVICES,
                                                            Appellee


                           From the 77th District Court
                            Limestone County, Texas
                             Trial Court No. 28901A


                           DISSENTING OPINION


      Ana Maria Gonzalez Salais appeals the trial court’s judgment dismissing her

health care liability claim against the Texas Department of Aging and Disability

Services. Because the trial court did not abuse its discretion in granting TDADS’s

motion to dismiss or in denying Salais’s request for a 30-day extension, we should

affirm the trial court’s judgment. Because the Court does not, I respectfully dissent.
                                             BACKGROUND

        Salais’s son, Ruben Gonzalez, was a patient at a TDADS facility, the Mexia State

School. After an altercation with the State School staff, Gonzalez was placed on a

restraint board. He then died. Salais sued both TDADS and the Mexia State School.

The trial court granted TDADS’s motion to dismiss.

        In two issues on appeal, Salais argues that the trial court erred in granting

TDADS’s motion to dismiss pursuant to section 74.351 of the Texas Civil Practice and

Remedies Code and erred in denying Salais’s request for a 30-day extension pursuant to

section 74.351(c) of the Texas Civil Practice and Remedies Code.

                                               DISMISSAL

        Section 74.351 of the Civil Practices and Remedies Code provides that within 120

days of filing, a claimant must serve a curriculum vitae and one or more expert reports

regarding every defendant against whom a health care claim is asserted. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2009).              “Section 74.351 has

numerous subparts, including:

        . subpart (b) requiring trial courts to dismiss a claim with prejudice and award

fees if "an expert report has not been served" by the statutory deadline;

        . subpart (c) allowing a 30-day extension of the deadline if a report is found

inadequate; and

        . subpart (l) providing that a motion challenging a report's adequacy should be

granted only if the report does not represent a good-faith effort to comply with the




Salais v. Tex. Dep’t of Aging & Disability Servs.                                 Page 2
statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (footnotes omitted); TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b), (c), (l) (Vernon Supp. 2009).

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

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

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

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

2001). An "expert report" means:

        A written report by an expert that provides a fair summary of the expert's
        opinions as of the date of the report regarding the applicable standards of
        care, the manner in which the care rendered by the physician or health
        care provider failed to meet the standards and the causal relationship
        between that failure and the injury, harm, or damages claimed.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2009). To constitute a

"good-faith effort," the report must discuss the standard of care, breach, and causation

with sufficient specificity to fulfill two purposes: (1) to inform the defendant of the

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

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

S.W.3d at 879.

        The report must include the expert's opinion on each of the three elements that

the statute identifies: standard of care, breach, and causal relationship.       Bowie, 79

S.W.3d at 52; Palacios, 46 S.W.3d at 878. A report cannot merely state the expert's

conclusions about these elements. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

"Rather, the expert must explain the basis of his statements to link his conclusions to the

facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).


Salais v. Tex. Dep’t of Aging & Disability Servs.                                     Page 3
        We review a trial court's order dismissing a claim for failure to comply with the

expert report requirements under an abuse-of-discretion standard. Bowie, 79 S.W.3d at

52; Palacios, 46 S.W.3d at 878.           Expert reports that omit at least one of the three

specifically enumerated requirements of an expert report cannot constitute a good faith

effort to meet the statutory requirements. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex.

2006); Palacios, 46 S.W.3d at 879.

        Salais provided two reports to serve as her expert report.          One report was

prepared by James Wohlers, a paramedic from Nebraska, which Salais alleged

addressed the expert report elements of the standard of care and the breach of that

standard.     The other report was prepared by Donald Winston, a physician from

Houston. Salais alleged Dr. Winston’s report addressed the causation element. TDADS

complains, and I agree, that Dr. Winston’s report wholly fails to address the causation

element.

        Assuming without deciding that Dr. Winston is otherwise qualified to render an

opinion on causation, he does not. Dr. Winston states in his report that he reviewed the

autopsy report of Ruben Gonzalez and the death certificate. Then, he simply states that,

although he disagrees with the nine pathologists on whether Gonzalez was in part

responsible for his own death, he agrees with them in their conclusion that it was

homicide caused by restraint and mechanical asphyxiation “imposed on him by the

three Mexia State School employees.”

        What Dr. Winston fails to do is draw the connection or explain the causal link

between the negligent actions of a specific health care provider (the elements of


Salais v. Tex. Dep’t of Aging & Disability Servs.                                     Page 4
standard of care and breach as described by Wohlers, the other purported expert) and

the damages/injury (Gonzalez’s death). In other words, his report on causation must

make the connection that the death by mechanical asphyxiation was caused by the

conduct described by Wohlers, assuming that was adequately presented in the other

expert report. See Bowie, 79 S.W.3d at 53. Because Dr. Winston did not indicate he had

reviewed the other purported expert’s report, this required connection is simply

missing. Further, it is impermissible to infer that the conduct referenced in one report is

the basis for the conclusions in the other report. See Austin Heart, P.A. v. Webb, 228

S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).

        Dr. Winston’s report is similar to an expert report discussed in Shaw v. B.M.W.

Healthcare, Inc., 100 S.W.3d 8 (Tex. App.—Tyler 2002, pet. denied). In Shaw, the Shaws

filed two expert reports to address the three elements, one from a physician and one

from a registered nurse. The Shaws agreed that the physician’s report did not set out

the applicable standards of care or address how the defendants breached any standards.

They argued, however, that those omissions were irrelevant because the physician only

rendered an opinion on the cause of death. Citing to Palacios, the Tyler Court of

Appeals held that because there was no discussion in the report as to the applicable

standard of care and any breaches of that standard, an opinion solely addressing the

cause of death did not satisfy the statutory requirements of an expert report. Shaw, 100

S.W.3d at 13 (citing Palacios, 46 S.W.3d at 879). Like the report in Shaw, Dr. Winston’s

report only addressed Gonzalez’s cause of death without a link between the alleged

breach and the injury. Accordingly, I would hold that Dr. Winston’s report does not


Salais v. Tex. Dep’t of Aging & Disability Servs.                                    Page 5
meet the requirement of an expert report because there is nothing in the report that

addresses the causal connection between the breach by the Mexia State School

employees of the standard of care as allegedly contained in Wohlers’s report and the

injury, the death of Gonzalez, claimed. The causation element has been omitted from

the report.

        Because Salais’s expert reports omit at least one of the three specifically

enumerated requirements of subsection (r)(6), they cannot constitute a good faith effort

to meet those requirements. I need not decide TDADS’s objections to Wohlers’s report.

Accordingly, because the trial court did not abuse its discretion in granting TDADS’s

motion to dismiss Salais’s suit against TDADS, Salais’s first issue should be overruled.

                                             CONTINUANCE

        Salais further argues that should we determine the reports were deficient, we

should remand the matter back to the trial court for a 30-day extension. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c) (Vernon Supp. 2009). The parties agree and the

trial court’s docket sheet indicates that a request for a 30-day extension was denied.

Section 74.351(c) provides in part that the trial court may grant one 30-day extension to

the claimant to cure a deficiency in an expert report. Id. The term "may" as used in

subsection (c) vests the trial court with discretion to grant a 30-day extension. Bosch v.

Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex. App.—Amarillo 2006, pet denied); Hardy

v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.—Texarkana 2005, no pet.).

        I assume without deciding that once the trial court determines that the report

furnished did not constitute a good faith effort to meet the requirements of an expert


Salais v. Tex. Dep’t of Aging & Disability Servs.                                   Page 6
report, the trial court can, nevertheless, grant a 30-day extension to cure the deficiency.

To grant such an extension, the trial court would have to consider the totality of the

circumstances surrounding the preparation of the report, such as the difficulty, if any,

encountered by the plaintiff in obtaining the necessary experts or in getting the medical

records necessary for the expert to review, the diligence of the plaintiff in securing an

expert on the specific type of healthcare liability claim, whether a 30-day extension

would have allowed the plaintiff to cure the defect, and the extent of the deficiency in

the proffered report. This list of considerations is by no means exhaustive.

        But in this case, we have not been provided any record from which we could

review the trial court’s determination. Because we have no record to review, Salais is

unable to support the complaint that the trial court abused its discretion in failing to

grant a 30-day extension. See In the Interest of D.W., 249 S.W.3d 625, 648 (Tex. App.—

Fort Worth 2008, no pet.) (because no record of hearing on motion to extend dismissal

deadline, court presumes evidence supported trial court’s ruling and no abuse of

discretion shown).

        Salais’s second issue should be overruled.

                                              CONCLUSION

        Having overruled each issue, I would affirm the interlocutory order of dismissal

of the trial court. Because the Court does not, I respectfully dissent.



                                                    TOM GRAY
                                                    Chief Justice

Dissenting opinion delivered and filed August 4, 2010
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