                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 ELENA MARIA APODACA,                            §
                                                                 No. 08-06-00226-CV
                   Appellant,                    §
                                                                    Appeal from the
 v.                                              §
                                                              41st Judicial District Court
                                                 §
 WILLIAM THAD MILLER, M.D.,                                    of El Paso County, Texas
                                                 §
                   Appellee.                                       (TC# 2001-4647)
                                                 §


                                           OPINION

       This appeal arises from an order granting Dr. William T. Miller’s motion to dismiss, for

failure to provide a sufficient medical expert report pursuant to former TEX .REV .CIV .STAT .ANN .

art. 4590i. Ms. Elena Maria Apodaca raises two issues for review. In Issue One, Ms. Apodaca

asserts that Dr. Miller waived his right to dismissal due to an inadequate expert report by waiting

three years to file his motion. In Issue Two, she contends the trial court abused its discretion by

determining the report was deficient.

       On December 15, 1999, Ms. Apodaca underwent cosmetic surgery performed by

Dr. Miller. Dr. Miller performed several procedures, including a rhytidectomy (facelift) and a

bilateral upper and lower lid blepharoplasty with removal of the corrugator muscle (removal of

fatty or excess tissue around the eyes).

       On January, 7, 2000, Ms. Apodaca entered the emergency room at Sierra Medical Center

in El Paso with complaints of pain and blurry vision. She was diagnosed with vertical diplopia,

ptosis of the upper eyelid, and vertical strabismus. A malfunction in one of the muscles which
controls the movement in Ms. Apodaca’s right eye caused the eye to consistently deviate upward,

while her left eye continued to function normally. Because her eyes were unable to be properly

directed at an object at the same time, Ms. Apodaca suffered from blurry and double vision.

Ultimately, Ms. Apodaca was treated by Dr. Carlos Vasquez, an expert in eye muscle balance.

Dr. Vasquez performed a left inferior rectus muscle recession on September 13, 2000, to repair

the damaged muscle and control the deviation of Ms. Apodaca’s right eye.

       Ms. Apodaca filed her original petition in this lawsuit on December 14, 2001.1 In part,

she alleged that her double vision was caused by Dr. Miller’s medical negligence during her

December 1999 surgery. In accordance with the requirements of former Article 4590i,

Ms. Apodaca filed a medical expert report by plastic surgeon, Dr. Mark Young on June 11, 2002.

See former TEX .REV .CIV .STAT .ANN . art. 4590i, § 13.01(d)(repealed 2003). Over the next three

years, the parties proceeded with discovery, entered into several agreed orders and took

depositions. On May 25, 2005, Dr. Miller filed a motion to dismiss the case pursuant to former

Article 4590i, sec. 13.01, challenging the sufficiency of Dr. Young’s expert report. The hearing

on the motion was continued until August 7, 2006. During the hearing, Ms. Apodaca’s attorney

argued the report was sufficient to meet the statutory requirements, and that Dr. Miller’s delay in

filing his motion while actively participating in the case constituted an implicit waiver of his


       1
         In 2003, the Legislature replaced Article 4590i with Civil Practice and Remedies Code
Chapter 74, effective September 1, 2003. See (Acts of 1977, 65th Leg., R.S., ch. 817, 1977
TEX .GEN .LAWS 2039, 2039-2053, amended by Acts of 1993, 73rd Leg., R.S., ch. 625, § 3, 1993
TEX .GEN .LAWS 2347, 2347-49, amended by Acts of 1995, 74th Leg., R.S., ch. 140, § 1, 1995
TEX .GEN .LAWS 985, 985-989)(Former TEX .REV .CIV .STAT .ANN . art. 4590i, §§ 1.01-16.02, “the
Medical Liability and Insurance Improvement Act”), repealed by Acts of 2003, 78th Leg., R.S.,
ch. 204, § 10.09, 2003 TEX .GEN .LAWS 847, 884 (current version at TEX .CIV .PRAC.&REM .CODE
ANN . § 74.001 et seq. (Vernon Supp. 2008)(eff. Sept. 1, 2003). As this case was filed prior to
the effective date of Chapter 74, we will refer to Article 4590i throughout this opinion.

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right to dismissal. The trial court entered its order dismissing the case on August 7, 2006.

                                         Standard of Review

        We review the trial court’s decision to grant or deny a motion to dismiss for an abuse of

discretion. American Transitional Care Cntrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875

(Tex. 2001); see also Spinks v. Brown, 211 S.W.3d 374, 379 (Tex.App.--San Antonio 2006, no

pet.)(trial court abused its discretion by granting defendant physician’s motion to dismiss). A

trial court abuses its discretion if it acts without reference to any guiding rules or principles, or

acts in an arbitrary or unreasonable manner. Palafox v. Silvey, 247 S.W.3d 310, 314 (Tex.App.--

El Paso 2007, no pet.). We may not substitute our own judgment for that of the trial court when

reviewing a matter committed to the trial court’s discretion. Walker v. Packer, 827 S.W.2d 833,

839-40 (Tex. 1992).

                                                Waiver

        In Issue One, Ms. Apodaca contends the trial court erred by dismissing the case because

Dr. Miller implicitly waived his right to dismissal due to an inadequate expert report. She asserts

that by participating in discovery, requesting a discovery control plan, and taking part in trial

preparation, Dr. Miller took a position inconsistent with his right to end a frivolous suit, thereby

waiving his right to dismissal.

        Section 13.01 of former Article 4590i requires a plaintiff to provide each defending

physician or heath care provider with one or more expert reports, including a curriculum vitae for

each expert listed in the report, within 180 days of filing a heath care liability claim. Former

TEX .REV .CIV .STAT .ANN . art. 4590i, § 13.01(d). Where an expert report is tendered, the

defendant may challenge the adequacy of the report. See id. at § 13.01(l); Bustillos v. Rowley,


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225 S.W.3d 122, 127 (Tex.App.--El Paso 2005, pet. denied). The trial court is authorized to

grant a motion to dismiss, “only if it appears to the court, after hearing, that the report does not

represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6)

of this section.” Bustillos, 225 S.W.3d at 127, quoting Palacios, 46 S.W.3d at 878-79.

       Section 13.01 imposed no statutory deadline for a defendant physician or health care

provider to file a motion to dismiss.2 Id. However, a defendant may waive the right to dismissal

if the defendant’s silence or inaction is inconsistent with the intent to rely upon that right.

Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003). The mere fact that a defendant waits to

file a motion to dismiss is insufficient to establish waiver. Id. at 157. Waiver is largely a matter

of intent. Id. For an implied waiver to be found based on a party’s actions, intent must be clearly

demonstrated by the surrounding circumstances. Id. at 156. There is no waiver of a right if the

party sought to be charged with waiver says or does nothing which is inconsistent with an intent

to rely upon such right. Id.

       Implicit waiver is only inferred by Texas courts in extreme circumstances. See e.g.,

Jernigan, 111 S.W.3d at 157 (“For example, if the defendant fails to object to the report’s

inadequacy until after the case is disposed of on other grounds, waiver may be implied.”); In re

Sheppard, 197 S.W.3d 798, 802 (Tex.App.--El Paso 2006, orig. proceeding)(by announcing

ready for trial following completion of discovery, defendant physician waived right to dismissal

based on sufficiency of expert report); Spinks, 211 S.W.3d at 378-79 (dismissal based on


       2
         Under the current version of the statute, a defendant physician or health care provider
must file and serve any objection to the sufficiency of an expert report no later than twenty-one
days after being served with the report. See TEX .CIV .PRAC.&REM .CODE ANN .
§ 74.351(a)(Vernon Supp. 2008). Absent a timely objection, the defendant waives all objections.
See id.

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physician’s objection to expert report constituted an abuse of discretion where defendant waited

until after trial to file motion to dismiss). The activities pointed to as evidence of Dr. Miller’s

intent to waive do not rise to the level of an implicit waiver. Rather, these types of activities

represent an intent to investigate the merits of the case primarily by participation in discovery.

While a three-year delay in filing a motion to dismiss may result in the defendant’s forfeiture of

the cost-reducing benefits of the statute, it is not a “clear demonstration” of an intent to waive the

statutory right to dismissal. See Jernigan, 111 S.W.3d at 157; Kidd v. Brenham State Sch. Texas

Dept. Of Mental Health and Mental Retardation, 93 S.W.3d 204, 208 (Tex.App.--Houston [14th

Dist.] 2002, pet. denied). Issue One is overruled.

                                     Expert Report Sufficiency

       In Issue Two, Ms. Apodaca asserts the trial court abused its discretion by determining

Dr. Young’s expert report did not constitute a good faith effort to comply with the requirements

of Section 13.01(l). In response, Dr. Miller argues the trial court’s determination that the report

was insufficient was not an abuse of discretion because Dr. Young’s report failed to identify the

applicable standard of care, failed to identify the purported breach, and provided only conclusory

statements regarding causation while failing to link the alleged breach to Ms. Apodaca’s injuries.

       A timely filed expert report is subject to challenge by the defendant by a motion to

dismiss challenging the report’s sufficiency. See former TEX .REV .CIV .STAT .ANN . art. 4590i,

§ 13.01(d), (e) & (l). The trial court shall grant the motion to dismiss only if it appears to the

court, after hearing, that the report does not represent a good faith effort to comply with the

statutory definition of an expert report. See former TEX .REV .CIV .STAT .ANN . art. 4590i,

§ 13.01(l). An “expert report,” is a written report by a qualified expert, and provides a fair


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summary of the expert’s opinions as of the date of the report regarding: (1) the applicable

standards of care; (2) the manner in which the care rendered by the physician or health care

provider failed to meet the standard of care; and (3) the causal relationship between that failure

and the injury, harm, or damages claimed. See former TEX .REV .CIV .STAT .ANN . art. 4590i, §

13.01(r)(6).

        Although a report need not marshal all the plaintiff’s proof, it must include expert

opinions on the three elements identified in the statute. Palacios, 46 S.W.3d at 878-79. In

detailing these elements, the report must provide enough information to fulfill two purposes: (1)

the report must inform the defendant of the specific conduct the plaintiff has called into question;

and (2) the report must provide a basis for the trial court to conclude that the claims have merit.

Id. at 879. All of the relevant information must be contained within the four corners of the

report. Id. at 878. If a report omits any of the statutory elements it cannot constitute a good faith

effort. Id. at 879.

        The standard of care for a physician is what an ordinary prudent physician would do

under the same or similar circumstances. Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex.App.-

-Texarkana 2003, pet. denied). At a minimum, the report must provide a “fair summary” of the

standard of care, identifying what care was expected but not given. Palacios, 46 S.W.3d at 880;

Bustillos, 225 S.W.3d at 130. Identification of the standard of care is critical to defining the

alleged breach. Sutherland, 107 S.W.3d at 789. That is, whether the defendant breached his

duty to the patient cannot be determined without an explanation about what the defendant should

have done differently. Sutherland, 107 S.W.3d at 790. On the issue of causation, the report must

contain more than conclusory insights about the alleged injury. Id. The expert must explain the


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basis of his causal conclusions by linking those conclusions to the facts of the case. Bowie

Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

       Dr. Miller’s motion to dismiss included challenges to the sufficiency of the report on all

three statutory elements. In pertinent part, Dr. Young’s report provides the following:

               It is my opinion that Ms. Apodaca suffered from strabismus as a result of
       surgery performed by Dr. Miller on December 15, 1999. In order to have normal
       vision using both eyes, both eyes must be directed at an object at the same time.
       Strabismus occurs when there is a deviation from this perfect alignment so that
       one or both eyes cannot be directed at the same object at the same time.
       Ms. Apodaca’s strabismus (right hypertropia) involved a deviation of her right eye
       upward. Ms. Apodaca’s strabismus caused her double vision.
               It is my opinion that Ms. Apodaca suffered an injury to the superior
       oblique muscle during blepharoplasty by Dr. Miller on December 15, 1999. The
       superior rectus muscle elevates the eye and the superior oblique muscle depresses
       the eye. If there is an injury to the superior oblique muscle, this may weaken the
       muscle and cause hypertropia or deviation of one eye upward. During surgery on
       the right upper lid, while removing fat from the medial side of the eye, Dr. Miller
       injured the superior oblique muscle. This injury to Ms. Apodaca’s superior
       oblique muscle in her right eye weakened the muscle and caused her right eye to
       deviate upward, resulting in double vision. The accepted standard of care of an
       ordinary and reasonable plastic surgeon performing upper eyelid surgery under the
       same or similar circumstances as the surgery performed by Dr. Miller on
       Ms. Apodaca on December 15, 1999, is to avoid trauma or injury to the superior
       oblique muscle while removing fat from the medical side. This type of trauma
       during surgery is preventable and is not a common surgical risk. It is my opinion
       that Dr. Miller breached the accepted standard of care by injuring the superior
       oblique muscle during surgery on December 15, 1999. It is my opinion that the
       breach of the accepted standard of care by Dr. Miller was a cause of injury and
       damages to Ms. Apodaca, including double vision, the need for corrective surgery,
       and physical impairment.

       This report satisfies the statutory requirements. Dr. Young identifies the factual basis of

Ms. Apodaca’s injury (i.e., injury to the superior oblique muscle in her right eye) and explains

that this type of injury leads to deviation of the eye resulting in double vision. He further opines

that this is the type of injury that Ms. Apodaca has suffered. The report continues by explaining



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that the standard of care during this type of cosmetic surgery includes avoiding trauma to this

muscle. The report clearly states that, in Dr. Young’s opinion, Dr. Miller breached the standard

of care by traumatizing the superior oblique muscle during surgery. The reports concludes by

linking Ms. Apodaca’s complaints of double vision with injury to the muscle.

       This report provides a fair summary of the standard of care, the alleged breach and causal

connection between that breach, and Ms. Apodaca’s alleged injuries. The report also satisfies the

dual purposes of the statute. Therefore, the trial court abused its discretion by granting

Dr. Miller’s motion to dismiss. Issue Two is sustained.

       Having determined that the trial court abused its discretion by granting Appellee’s motion

to dismiss, we reverse the order of dismissal and remand this cause to the trial court for further

proceedings.




August 7, 2008
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.)(Sitting by Assignment)




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