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                                             OPINION

                                         No. 04-08-00826-CV

                   Gregorio E. PEDROZA, III, M.D. and Abdulhay A. Kadri, M.D.,
                                          Appellants

                                                   v.

    Diana TOSCANO, Individually and as Administrator of the Estate of Maria A. Martinez,
                     Deceased, and Ernest Martinez, Individually,
                                       Appellees

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CI-04424
                       Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:         Marialyn Barnard, Justice

Sitting:            Sandee Bryan Marion, Justice
                    Phylis J. Speedlin, Justice
                    Marialyn Barnard, Justice

Delivered and Filed: May 20, 2009

AFFIRMED

           Gregorio B. Pedroza, III, M.D. and Abdulhay A. Kadri, M.D. appeal the trial court’s order

denying their motions to dismiss. The motions to dismiss sought to dismiss “any claim which was

not made in Plaintiffs’ Chapter 74 expert reports.” The primary issue presented on appeal is

“[w]hether the trial court abused its discretion by implicitly holding that a plaintiff may circumvent

the 120-day report requirement of Tex. Civ. Prac. & Rem. Code Section 74.351(a) by asserting new
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allegations of negligence after the 120-day report is served that were not asserted in any report served

within 120 days of the filing of the original petition when all information necessary to assert those

allegations is available to the plaintiff and her expert(s) as of the time the statutory report is served.”

The appellees, Diana Toscano, Individually and as Administrator of the Estate of Maria A. Martinez,

Deceased, and Ernest Martinez, Individually, filed a motion to dismiss this appeal for lack of

jurisdiction. We deny the motion to dismiss this appeal and affirm the trial court’s order.

                                     PROCEDURAL BACKGROUND

        The underlying lawsuit arose from the death of a nursing home resident. Toscano and

Martinez filed their medical malpractice lawsuit on March 17, 2006 and amended their petition to

add Pedroza and Kadri as defendants on March 29, 2006. Toscano and Martinez timely served

Pedroza and Kadri with Dr. Michael Zeitlin’s reports pursuant to section 74.351 of the Texas Civil

Practice and Remedies Code (the “Code”).

        On January 23, 2007, Toscano and Martinez filed their designation of expert witnesses and

produced a report by Mark Lachs, M.D., who was identified as their testifying expert. Dr. Lachs

subsequently testified in two depositions in March and December of 2007. It is undisputed that Dr.

Lachs’s criticisms of Pedroza and Kadri did not match the criticisms contained in the report authored

by Dr. Zeitlin.

        On October 31, 2008, and November 3, 2008, respectively, Kadri and Pedroza filed their

motions to dismiss. The trial court denied the motions, and Pedroza and Kadri filed this appeal.

                                             JURISDICTION

        Section 51.014(a)(9) of the Code authorizes an appeal from an interlocutory order that denies

all or part of the relief sought by a motion under section 74.351(b). TEX . CIV . PRAC. & REM . CODE



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ANN . § 51.014(a)(9) (Vernon 2008). Toscano and Martinez contend that this court does not have

jurisdiction to consider this appeal because a challenge under section 74.351(b) would have to

address Dr. Zeitlin’s reports. We disagree.

       The arguments raised by Toscano and Martinez address whether the section 74.351(b) motion

was appropriate under the circumstances of the case, i.e., whether Pedroza and Kadri can use section

74.351(b) to challenge Dr. Lachs’s report. Toscano and Martinez do not argue that Pedroza and

Kadri were not seeking relief under section 74.351(b). Because Pedroza and Kadri were seeking

relief under section 74.351(b), which the trial court denied, we have jurisdiction to consider this

appeal. See id.

                                      STANDARD OF REVIEW

       We typically review a trial court’s decision on a motion to dismiss a health care liability

claim under an abuse of discretion standard. Methodist Charlton Med. Ctr. v. Steele, 274 S.W.3d

47, 49 (Tex. App.—Dallas 2009, pet. filed); Schmidt v. Dubose, 259 S.W.3d 213, 215 (Tex. App.—

Beaumont 2008, no pet.). The trial court has no discretion, however, in determining what the law

is, and a failure to analyze or apply the law correctly will constitute an abuse of discretion. Steele,

274 S.W.3d at 49; Schmidt, 259 S.W.3d at 215.

                                 EXPERT REPORT REQUIREMENT

       The issue presented in this case is a purely legal issue, i.e., whether a plaintiff is precluded

from maintaining a health care liability claim based on an act or theory of negligence disclosed by

a testifying expert but not mentioned in the section 74.351 expert report. In other words, is a

plaintiff’s testifying expert limited to opining exclusively on the acts or theories of negligence

mentioned in the section 74.351 report?



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       In Schmidt, the Beaumont court faced a similar issue; however, in Schmidt, the issue was

framed as “whether the deadlines provided by section 74.351 of the Texas Civil Practice and

Remedies Code for serving a threshold expert report would preclude a plaintiff in a health care

liability claim from maintaining a claim based on an act of negligence determined during discovery,

that has been specifically described as not negligent in an initial report filed in accordance with

section 74.351(a) or otherwise not determined until discovery.” 259 S.W.3d at 215. The section

74.351 expert in Schmidt had originally stated in his report that the defendant was not negligent in

misidentifying the plaintiff’s bile duct but was negligent in failing to immediately recognize that he

had divided the bile duct and immediately repair it. Id. The section 74.351 expert was subsequently

designated as the plaintiff’s testifying expert. Id. In his deposition, the expert testified, seemingly

in contradiction to his section 74.351 expert report, that the defendant was negligent in

misidentifying the bile duct. Id. The defendant sought to dismiss the plaintiff’s assertion of the

additional allegation that the defendant was negligent in misidentifying the bile duct because the

opinion was never expressed until the expert’s deposition. Id. at 218.

       The Beaumont court initially noted that the section 74.351 expert report requirement

establishes a “threshold” requirement that a claimant in a health care liability claim must satisfy to

continue the lawsuit. Id. at 217. The court further noted that section 74.351 defines an expert report

as “a written report by an expert that provides a fair summary of the expert’s opinions as of the date

of the report.” Id. (emphasis in original); see also TEX . CIV . PRAC. & REM . CODE ANN . §

74.351(r)(6) (Vernon Supp. 2008). The court thus reasoned that “the plain language of the statute

contemplates that the expert’s opinions may be amended or supplemented as discovery is completed

in the lawsuit.” Id. The court noted, however, that no new cause of action was asserted as a result



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of the partial change in the expert’s opinion. Id. The court asserted, “If another health care liability

cause of action is alleged about which no expert report is made, a different issue may be presented.”

Id. The court concluded that the section 74.351 report “represented an objective good faith effort

to provide a fair summary of the expert’s opinions concerning the cause of action as of the date of

the report” and noted:

               Once the trial court has performed its gatekeeper function under section
       74.351 of the Texas Civil Practice and Remedies Code, subsequent expert reports
       and opinions are governed by the rules of discovery set forth generally in the Texas
       Rules of Civil Procedure, e.g., a party’s duty to amend and supplement written
       discovery about a retained testifying expert is governed by Rule 193.5 of the Texas
       Rules of Civil Procedure. Other safeguards are provided to govern the evidence that
       is ultimately submitted to the trier of fact and we make no determination with regard
       to same by this opinion. For instance, by way of example only, the trial court also
       has the duty to act as a gatekeeper to ensure that any expert testimony is relevant,
       reliable, and otherwise admissible under the Texas Rules of Evidence.

Id. at 218-19 (citations omitted).

       Pedroza and Kadri seek to distinguish Schmidt on the basis that Dr. Lachs’s negligence

theories in the instant case were not newly discovered through the discovery process but were based

on the medical records reviewed by Dr. Zeitlin. We disagree that such a distinction is relevant or

controls the disposition of this appeal. In this case, as in Schmidt, Dr. Lachs was not asserting a

different cause of action, only a different negligence theory.

       Pedroza and Kadri also rely heavily on the Dallas court’s opinion in Steele. In that case,

however, the only claim initially asserted against Methodist Charlton Medical Center and Methodist

Hospitals of Dallas, and the only claim addressed in the section 74.351 expert report, was a vicarious

liability claim for a nursing employee’s negligence. 274 S.W.3d at 48. The plaintiffs amended their

petition 236 days after their original petition was filed to add direct claims against Charlton and

MHD for negligent hiring, supervision, training, and retention. Id. at 48-49. Because no expert


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report was served addressing the direct claims, the Dallas court held that the trial court was required

to dismiss the direct claims. Id. Steele is readily distinguishable from the instant case, however,

because no new cause of action was alleged by Toscano and Martinez.1

         Pedroza and Kadri also rely on general language in the Texas Supreme Court’s decision in

American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001). In Palacios,

the Texas Supreme court does state that a section 74.351 report “must provide enough information

to fulfill two purposes if it is to constitute a good-faith effort. 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. at 879. The Texas Supreme Court in Palacios, however, was attempting to define the purposes

of an expert report and its required contents to satisfy the requirements of section 74.351. Pedroza

and Kadri want to extend the use of the report beyond the threshold requirement of section 74.351

by imposing a limitation on the theories of negligence that can be presented at trial.

         The extension of the report’s use in the manner advocated by Pedroza and Kadri would be

contrary to the statute which prohibits any reference to the report during the course of the proceeding

for any purpose. TEX . CIV . PRAC. & REM . CODE ANN . §74.351(k)(2),(3) (Vernon Supp. 2008). The

primary goal of statutory construction is to ascertain and effectuate the legislature’s intent. Steele,

274 S.W.3d at 49. In doing so, we begin with the statute’s plain language because we assume the

legislature said what it meant and, thus, that its words are the surest guide to its intent. Id. The

statute in this case states that the section 74.351 expert report “shall not be used in a deposition, trial,

or other proceeding” and “shall not be referred to by any party during the course of the action for any


         1
          Because Steele is distinguishable from the instant case, we express no opinion with regard to whether this court
agrees with its holding or would agree with the application of its holding in all circumstances.

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purpose.” TEX . CIV . PRAC. & REM . CODE ANN . §74.351(k)(2),(3) (Vernon Supp. 2008). The

legislature’s enactment of such a broad prohibition is a clear indication of its intent to severely curtail

any use of the report after the threshold requirement of section 74.351 is satisfied. This prohibition

extends to the use advocated by Pedroza and Kadri. “[W]e will not attempt to tailor any [exceptions

to the section 74.351(k) prohibition] that were not provided for by the Legislature.”2 Garcia v.

Willman, 4 S.W.3d 307, 310 (Tex. App.—Corpus Christi 1999, no pet.).

         Additionally, section 74.351(r)(6) defines “expert report” as “a written report by an expert

that provides a fair summary of the expert’s opinions as of the date of the report regarding 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 the failure and the injury, harm, or

damages claimed.” TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(r)(6) (Vernon Supp. 2008). Thus,

the definition requires the report to contain a fair summary of the opinions of the expert providing

the report, not a fair summary of the opinions of the expert who will be called to testify at trial.

Moreover, by including the phrase “as of the date of the report,” the legislature contemplated that

the opinions of the expert providing the report could change after that date as was the case in

Schmidt. Therefore, we hold that a testifying expert is not limited to the acts or theories of

negligence mentioned in the section 74.351 report.

                                                   CONCLUSION

         The trial court’s order is affirmed.

                                                                Marialyn Barnard, Justice



         2
          Although section 74.351(t) does provide an exception to the broad prohibition if the claimant uses the report
for purposes other than satisfying section 74.351(a), this exception, even where applicable, would not support the use
of the report being advocated by Pedroza and Kadri.

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