                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00236-CV

DR. STEVEN LEON GATES, D.O. AND/OR
DR. STEVEN LEON GATES, D.O., P.A.,
                                                           Appellants
v.

JACK THOMAS ALTARAS,
                                                           Appellee


                          From the 413th District Court
                             Johnson County, Texas
                           Trial Court No. C200800182


                          MEMORANDUM OPINION


      Appellants Dr. Steven Leon Gates, D.O. and/or Dr. Steven Leon Gates, D.O.,

P.A.. (Gates) appeal the denial of Gates’s objections to an amended expert report and

motion to dismiss. Because the trial court erred in finding the amended expert report to

be sufficient, we reverse and remand the case for further proceedings.

                                     BACKGROUND

      Jack Altaras went to see his dentist because he had pain in his right jaw. He was

told he needed his wisdom teeth removed.        Five days later, Altaras visited Gates
because he had a cough, a fever, heaviness in his chest, and pain in his right jaw. A

chest x-ray was taken and Altaras was given antibiotics. Four days later, Altaras went

to the hospital with shortness of breath. He was having a heart attack and bypass

surgery was performed.

        Altaras sued Gates for negligence. Within 120 days, Altaras presented an expert

report in the form of an affidavit from Dr. Bernard A. McGowen. Gates filed objections

to the report and a motion to dismiss. Both were denied and Gates appealed. See 10-08-

00239-CV. A few weeks prior to oral argument in the appeal, Gates and Altaras reached

an agreement where Altaras would submit a supplemental report within 45 days and

Gates would dismiss his appeal. After the supplemental report was presented, Gates

again filed, in one document, objections and a motion to dismiss. The trial court again

denied relief. Gates appealed.

                                     APPLICABLE LAW

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

days of filing a health care liability claim, 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

Gates v. Altaras                                                                    Page 2
        . 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

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

Gates v. Altaras                                                                      Page 3
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).

        We review a trial court's denial of a motion to dismiss under section 74.351 for

abuse of discretion. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 875.

Sufficiency of the Report

        In his first issue, Gates contends the trial court erred in finding the expert report

to be sufficient. McGowen stated in his affidavit that Altaras “presented” to his dentist

on February 15, 2006 complaining of right jaw pain. Altaras was told that his wisdom

teeth needed to be extracted. McGowen stated that on February 20, 2006, Altaras

“presented” to Gates complaining of a cough, fever, heaviness in the chest, and right

jaw pain. Altaras was treated with antibiotics. A chest x-ray was taken which revealed

“Bilateral Perihilar Infiltrates.”   This term was not defined in McGowen’s report.

McGowen further stated that on February 24, 2006, Altaras “presented” to the hospital

complaining of shortness of breath and right jaw pain. Altaras was diagnosed with an

“acute inferior myocardial infarction.”

        McGowen stated many times that he was familiar with the standard of care

regarding patients such as Altaras. When reciting the standard in paragraph 18 of his

affidavit, McGowen stated that the standard of care required Gates to properly

diagnose the cardiac disease, refer Altaras to a cardiologist and order appropriate tests,

including a stress test. McGowen opined that Gates’s failure to perform any of these

steps fell below the standard of care. McGowen concluded that Gates’s deviation from

the standard of care resulted in “the episode of cardiogenic shock. Proximate cause of

Gates v. Altaras                                                                       Page 4
his physical impairment including partial blindness in both eyes. [sic].” McGowen

further concluded that deviations from the standard of care caused Altaras extensive

damages and unnecessary mental pain and suffering and would result in needless and

unnecessary treatment and billing which would not have been required but for the

breaches.

        Assuming without deciding that McGowen even properly stated a standard of

care and breach of that standard, McGowen wholly fails to explain the causal

relationship between Gates’s failures and the injury, harm, or damages claimed by

Altaras. McGowen must explain the basis of his statements to link his conclusions to

the facts. He did not. After reading the affidavit, we are at a loss to understand how

Gates’s alleged failure to diagnose cardiac disease, refer Altaras to a cardiologist, and

order “appropriate” tests, resulted four days later in cardiogenic shock, physical

impairment including partial blindness in each eye, unspecified damages, and

unspecified unnecessary mental pain and suffering. Further, the affidavit does not

provide an explanation as to how complying with the non-specific standard of care

would have prevented the injuries. Thus, the affidavit does not meet the requirements

of an expert report.

        Accordingly, the trial court erred in finding the expert report to be sufficient and

Gates’s first issue is sustained.

Remedy?

        Gates argues that because the report was insufficient and because Altaras had

already had one extension, the trial court was required to dismiss Altaras’s case.

Gates v. Altaras                                                                      Page 5
Section 74.351(c) provides that if an expert report has not been served within the 120-

day time period specified by subsection (a) because elements of the report are found

deficient, the trial court may grant one 30-day extension to the claimant to cure a

deficiency in an expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (Vernon

Supp. 2009).       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.). But Altaras argues that the trial court never granted

him a previous 30-day extension.

        To resolve this dispute, we must look at what happened in this case prior to the

events giving rise to this appeal. In 2008, Gates objected to Altaras’s first expert report

and filed a motion to dismiss. The trial court found the report to be sufficient and

denied Gates’s motion to dismiss. Gates appealed the trial court’s ruling. Just prior to

oral argument in that appeal, Gates and Altaras reached an agreement which was

placed on the record and was made a part of this appeal. The entire “agreement” is as

follows.

        Counsel for Altaras: …The Defendant will give the Plaintiff 45 days to
        supplement their report. In exchange, the Defendant will drop their case
        in the Court of Appeals, and that’s pretty much it.

        Counsel for Gates: I guess the purpose of the extension is to cure the
        deficiencies we’ve pointed out.

        Counsel for Altaras: Cure the deficiencies they’ve pointed out, and that
        way we will not have to go down to the Court of Appeals again.




Gates v. Altaras                                                                     Page 6
        Counsel for Gates: If necessary, if we still think it’s insufficient, we’ll
        come back and see Judge Bosworth.

        Counsel for Altaras: That’s true.

        Court: So this has resolved your conflict at the Court of Appeals with the
        interlocutory appeal?

        Counsel for Gates: Yes, Your Honor.

        Court: And you’ve resolved how to handle this expert report; is that
        correct?

        Counsel for Altaras: That’s correct. And you will dismiss your – your
        appeal.

        Counsel for Gates: Right. I’ll go do that….

        Court: Okay. Thank you.

        Although not the most artfully worded, it is clear that Altaras agreed the report

was deficient and that to avoid an adverse decision by this Court on appeal, Altaras

would supplement the report within 45 days. Gates, in turn, would not oppose the

extension and would dismiss his interlocutory appeal. However, the Texas Supreme

Court has held that the plain language of subsection (c) provides for an extension to

cure when elements of a report have been found deficient. Leland v. Brandal, 257 S.W.3d

204, 208 (Tex. 2008) (emphasis in opinion). Elements have only now been found to be

deficient. Therefore, we must remand this appeal to the trial court for consideration of

a 30-day extension pursuant to subsection (c).1 See id. at 207.


1This may appear counterintuitive to the purpose of the statute which is to "reduce excessive frequency
and severity of health care liability claims,” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003
Tex. Gen. Laws 847, 884, and is a disincentive for parties to resolve problems with expert reports by
agreement and without court intervention. We are bound, however, by the holding of the Texas Supreme
Court.

Gates v. Altaras                                                                                         Page 7
Remaining Issues

        In his second issue, Gates argues that the trial court erred in finding that the

expert was qualified to render an opinion on causation.2 Because of our disposition of

the first issue, we need not discuss Gates’s second issue. Further, as to Gates’s third

issue, because the affidavit is deficient as to Gates, it is deficient as to Gates, P.A. as

well; and at this juncture, we need not determine whether the affidavit is the equivalent

of no report as to Gates, P.A.

                                            CONCLUSION

        Having determined that the expert report is deficient, we reverse the trial court’s

order and remand the case to the trial court for further proceedings consistent with this

opinion.



                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed March 10, 2010
[CV06]




2Having found one deficiency that requires a remand, we do not believe it is necessary to identify every
deficiency in the report. Having been placed on notice of the argued deficiencies, Altaras would
presumably take such precautions as may be necessary to avoid another determination of a deficiency
after which there would be no opportunity to cure.

Gates v. Altaras                                                                                 Page 8
