                                     NUMBER 13-04-00449-CV

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


JUAN MARIO VILLAFANI, M.D.,                                                                       Appellant,

                                                        v.

ADELA TREJO,                                                                                      Appellee.


  On appeal from the 197th District Court of Cameron County, Texas.


                   MEMORANDUM OPINION ON REMAND

                Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion on Remand by Justice Garza

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

appellant, Juan Mario Villafani, M.D., that the trial court erred in denying his motion for

dismissal and sanctions for the failure of appellee, Adela Trejo, to file an expert report that

conformed to the requirements of former article 4590i of the Texas Revised Civil Statutes.1

        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 art. 4590i, § 13.01), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003
We affirm.

                                                I. BACKGROUND

        On May 29, 2003, Trejo filed a medical malpractice suit against Villafani, Ruben

Lopez, M.D., and others involved in an abdominal surgery.2 On November 25, 2003, Trejo

timely filed expert reports as required by section 13.01(d) of former section 4590i of the

Texas Revised Civil Statutes. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, §

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

13.01(d)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex.

Gen. Laws 847, 884. On February 10, 2004, Villafani filed a motion for dismissal and

sanctions, asserting that Trejo’s expert reports did not satisfy statutory requirements. 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986 (repealed 2003). The trial court denied Villafani’s motion on April 7, 2004.

        On April 30, 2004, Trejo filed a notice of nonsuit without prejudice on her claims

against Villafani. See TEX . R. CIV. P. 162. On July 29, 2004, the trial court severed Trejo’s

claims against Villafani and rendered a final judgment dismissing the claims against

Villafani without prejudice. Villafani subsequently appealed the trial court’s denial of his

motion for dismissal and sanctions. This Court dismissed Villafani’s appeal for lack of

jurisdiction because Villafani’s “motion for sanctions and dismissal was not a pending claim

at the time the non-suit was granted.” Villafani v. Trejo, No. 13-04-449-CV, 2005 Tex. App.

LEXIS 8265, at **2-3 (Tex. App.–Corpus Christi Oct. 6, 2005) (mem. op.), rev’d, 251


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
            Of the defendants, only Villafani is a party to this appeal.

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S.W.3d 466 (Tex. 2008).

       The Texas Supreme Court reversed this Court’s decision, stating that the denial of

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

subject of an appeal.” Villafani, 251 S.W.3d at 471. We will, therefore, analyze the

propriety of the trial court’s denial of Villafani’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). The trial court abused its discretion

if it acted arbitrarily or unreasonably without reference to any guiding rules or principles

when it denied Villafani’s motion for dismissal and sanctions. See Walker v. Gutierrez, 111

S.W.3d 56, 62 (Tex. 2003); Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 220

(Tex. App.–Houston [1st Dist.] 2003, pet. denied).

                                         III. ANALYSIS

       By his sole issue, Villafani argues that the trial court abused its discretion in denying

his motion for dismissal and sanctions pursuant to section 13.01 of former article 4590i.

Specifically, Villafani contends that Trejo’s expert reports did not adequately establish that

Villafani breached the standard of care and caused the complained-of injury, “a retained

V.A.C. [vacuum assisted closure therapy] device or V.A.C. sponge.” Trejo asserts that the

complained-of injury was a “severe abdominal infection” and that the report submitted by

Louis Silverman, M.D., clearly established that Villafani was negligent.

A. Applicable Law

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

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               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, with a curriculum vitae of each expert listed 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). Section 13.01(r)(6) of former article 4590i 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 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
        that failure and the injury, harm, or damages claimed.

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). If the requirements of sections 13.01(d) and 13.01(r)(6) are not

met, 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,



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

B. Discussion

       On November 25, 2003, Trejo timely produced her medical records and an expert

report from Silverman. In his report, Silverman noted the following:

               The standard of care regarding colostomy closure predicates that no
       foreign material be implanted at the time that colon surgery is performed. If
       foreign material implanted within the body, is exposed to colonic bacteria,
       contamination is inevitable, and the foreign material becomes a nidus for
       ongoing infection, which persists until the foreign material is removed. Dr.
       Villafani ignored that standard, and this resulted in suppurative, persistent
       wound infection. This complication would have been prevented had he
       chosen to close the incision primarily, without mesh, planning mesh
       implantation at a second sitting after the colostomy closure had healed.
       Other alternatives exist, such as skin closure only or delayed primary
       closure. Each of these choices would have avoided contamination of foreign
       material implanted in a contaminated field. By failing to meet this standard,
       Dr. Villafani’s substandard care resulted in Ms. Trejo’s overwhelming
       infection.

              In summary, Dr. Villafani’s substandard care resulted in a major
       wound infection. Dr. Lopez failed to provide treatment mandated by the
       standard of care, i.e., removal of infected mesh. The result of these
       physicians’ substandard care was [a] massive wound infection, prolonged by
       ineffective treatment with all the attendant morbidity and the risks associated
       with multiple operations in an 84-year-old lady.

       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).

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       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). An expert report need not marshal all the

plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified

in the statute in order to represent a good-faith effort. Id. Additionally, 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.

       Villafani’s primary complaint is that Trejo’s pleadings do not directly correlate with

Silverman’s report. While Trejo’s pleadings could have been better drafted, it is clear that

the cause of action alleged against Villafani involves negligence in the treatment of Trejo.

Trejo’s allegations of “a retained V.A.C. device or V.A.C. sponge” involve the manufacturer

of the product and Lopez, not Villafani. Silverman’s expert report adequately sets forth the

standard of care pertaining to Villafani, how that standard was breached, and the result—a

massive wound infection. We therefore conclude that Silverman’s expert report adequately

informed Villafani of the complained-of conduct and provided the trial court with a basis to

determine whether Trejo’s claims had merit; therefore, the report satisfies Palacios. See

46 S.W.3d at 879. Accordingly, we overrule Villafani’s sole issue on appeal.



                                              6
                                    IV. CONCLUSION

      We affirm the judgment of the trial court.



                                                   _______________________
                                                   DORI CONTRERAS GARZA,
                                                   Justice

Memorandum Opinion on Remand delivered
and filed this the 18th day of September, 2008.




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