                                     NUMBER 13-07-00604-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


ARMANDO MONCADO, M.D.,                                                             Appellant,

                                                         v.

MARGARITO TRUJILLO,                                                                 Appellee.


                    On appeal from the County Court at Law No. 6.
                             of Hidalgo County, Texas.


                                              OPINION

     Before Chief Justice Valdez and Justices Garza and Benavides
                    Opinion by Chief Justice Valdez

       Appellant Armado Moncado, M.D., appeals from the trial court’s denial of his motion

to dismiss due to the failure of appellee Margarito Trujillo to file a timely expert report under

section 74.351 of the civil practice and remedies code.1 See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351 (Vernon Supp. 2007). By a single issue, Moncado contends that the trial

court erred in denying his dismissal motion when it had sustained his objections to Trujillo’s


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           Trujillo has not filed an appellee’s brief.
only expert report. We affirm the interlocutory order and remand for further proceedings.

                                               I. BACKGROUND

       In February 2005, Trujillo underwent aortocoronary bypass surgery at Doctors

Hospital at Renaissance in McAllen, Texas. Trujillo developed a hematoma in his right

wrist as an alleged result of the anesthesiologist’s placement of an arterial line before the

surgery. Moncado, a plastic and hand surgeon, evaluated Trujillo’s right wrist and did not

recommend surgical intervention; instead, he concluded that the problem would resolve

itself. Trujillo’s right wrist and hand, however, eventually needed evacuation of the

hematoma and carpal tunnel decompression surgery.

       On April 4, 2007, Trujillo sued Doctors Hospital, Moncado, and the anesthesiologist

asserting health care liability claims. On May 31, 2007, Trujillo produced a medical report

by Michael Staschak, M.D., that did not name Moncado at all. On June 20, 2007,

Moncado filed objections to Staschak’s qualifications under section 74.401 of the civil

practice and remedies code and moved to strike the entire report. See id. § 74.401

(Vernon 2005). On July 30, 2007, Moncado filed a motion to dismiss Trujillo’s suit on the

grounds that Staschak’s report constituted “no report.” Moncado argued that under section

74.351 of the civil practice and remedies code, Trujillo had until August 2, 2007, to file a

satisfactory report and that if he did not file one by then, the trial court was obligated to

dismiss Trujillo’s claims and award Moncado attorney’s fees.2                        See id. § 74.351(b). A


       2
           Section 74.351(a) of the civil practice and rem edies code provides that:

       In a health care liability claim , a claim ant shall, not later than the 120th day after the date the
       original petition was filed, serve on each party or the party's attorney one or m ore expert
       reports, with a curriculum vitae of each expert listed in the report for each physician or health
       care provider against whom a liability claim is asserted. The date for serving the report m ay
       be extended by written agreem ent of the affected parties. Each defendant physician or
       health care provider whose conduct is im plicated in a report m ust file and serve any objection
       to the sufficiency of the report not later than the 21st day after the date it was served, failing
       which all objections are waived.



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hearing was held on Moncado’s motions on August 9, 2007. At the hearing, Trujillo asked

the court for a thirty-day extension of time to file an adequate report, should the trial court

find his current report deficient. On August 30, the trial court issued an order granting

Moncado’s objections to Staschak’s report but denying the dismissal motion.                On

September 7, 2007, Trujillo filed an amended report by Staschak. This interlocutory appeal

ensued. See id. § 51.014(a)(9) (Vernon Supp. 2007).

                                                   II. DISCUSSION

            On appeal, Moncado argues that because the trial court granted his objections

to Staschak’s report, it was required to dismiss Trujillo’s health care liability claims for

failure to timely provide an expert medical report. We disagree.

A.       Standard of Review

         We review a trial court’s decision on a section 74.351(b) motion to dismiss for abuse

of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.–Houston

[1st Dist.] 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to guiding rules or principles. See Garcia v.

Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial

court’s discretion, we may not substitute our own judgment for that of the trial court. Bowie

Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its

discretion merely because it decides a discretionary matter differently than an appellate

court would in a similar circumstance. Gray, 189 S.W.3d at 858. However, a trial court has

no discretion in determining what the law is or in applying the law to the facts. Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d


T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.351(a) (Vernon Supp. 2007).

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909, 916 (Tex. App.–Dallas 2007, pet. denied).

B.     Applicable Law and Analysis

       Trujillo filed his original petition on April 4, 2007. Under section 74.351(a), Trujillo

had until August 2, 2007 to serve an adequate report. See TEX . CIV. PRAC . & REM . CODE

ANN . § 74.351(a). An adequate report must specify each individual defendant’s negligent

conduct. See Palacios, 46 S.W.3d at 879; Taylor v. Christus Spohn Health Sys. Corp., 169

S.W.3d 241, 245-46 (Tex. App.–Corpus Christi 2004, no pet.) (holding that a trial court did

not abuse its discretion in finding that an expert report that grouped defendants together

was inadequate). Furthermore, the expert report statute provides:

       If, as to a defendant physician or health care provider, an expert report has
       not been served within the period specified by Subsection (a), the court, on
       the motion of the affected physician or health care provider, shall, subject to
       Subsection (c), enter an order that:

              (1) awards to the affected physician or health care provider
       reasonable attorney's fees and costs of court incurred by the physician or
       health care provider; and

             (2) dismisses the claim with respect to the physician or health care
       provider, with prejudice to the refiling of the claim.

See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(b) (Vernon Supp. 2007). Staschak’s

report, which does not mention Moncado, was found inadequate by the trial court. The trial

court’s order reads:

              BE IT REMEMBERED that on the 9th day of August, 2007, came on
       to be considered Defendant ARMANDO MONCADO, M.D. Objections to
       Expert Report and Motion to Dismiss, and this Court, after consideration of
       same and argument of counsel, is of the opinion that such objections have
       merit, but that the Motion to Dismiss should be denied.

              IT IS, ACCORDINGLY, ORDERED that Defendant’s Moncada’s [sic]
       Objections to the expert report of Dr. Staschack are hereby GRANTED, and
       IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Motion
       to Dismiss filed by the Defendant herein is hereby DENIED.

       A review of the reporter’s record from the August 9 hearing reveals that Trujillo

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contended that the report was adequate, but, if it was found inadequate, then he could

have thirty days to cure any deficiency. The trial court took the matter under advisement,

and it issued its order on August 30. Trujillo filed an amended report on September 7,

2007. Moncado posits that the sole issue is whether the trial court abused its discretion

by not dismissing Trujillo’s claim after it had sustained Moncado’s objections to Staschak’s

report. Moncado does not explain, however, why the trial court did not dismiss Trujillo’s

claim and why Trujillo filed a new expert report within thirty days of the trial court’s order.

See id. § 74.351(c) (providing that a trial court may grant one thirty-day extension for a

health care liability claimant to cure any deficiencies in her expert report).

       It could be that the trial court implicitly granted Trujillo a thirty-day extension by not

dismissing his claim despite ruling that Staschak’s report was inadequate. See id.; see

also, Watkins v. Jones, 192 S.W.3d 672, 675 (Tex. App.–Corpus Christi 2006, orig.

proceeding) (applying mandamus standard of review to an original proceeding relating to

an expert medical report and holding that a trial court may implicitly grant an extension).

Based upon the record before us, Moncado has not established that the trial court abused

its discretion. Accordingly, Moncado’s sole issue is overruled.

                                       III. CONCLUSION

       The trial court’s interlocutory order is affirmed and the case is remanded back to the

trial court so that it can consider Staschak’s amended report.

                                                           _______________________
                                                           ROGELIO VALDEZ
                                                           Chief Justice

Opinion delivered and filed
this the 21st day of August, 2008.




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