

Opinion issued January 5, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00553-CV
———————————
Charles Haskell,
Appellant
V.
Seven Acres Jewish Senior Care Services, Inc.
and Authorine Laverne Mason, Appellees

 

 
On
Appeal from the 80th District Court
Harris
County, Texas

Trial Court Case No. 2008-46479
 

 
O P I
N I O N
Appellant, Charles Haskell, appeals from
the trial court’s dismissal of his suit against appellees, Seven Acres Jewish Senior Care Services, Inc.
and Authorine Laverne Mason.  The trial court determined that the documents
served by Haskell purporting to comply with the requirements of section 74.351
of the Civil Practice and Remedies Code were so deficient that they did not, in
fact, comply with the statutory requirements and dismissed the case.[1]  In two issues, Haskell argues that the trial
court abused its discretion (1) by granting Defendants’ objections to his
expert report and dismissing the case and (2) by denying his request for a
30-day extension to cure any defects in the report.
We affirm.
                                                                                                                                                                
Background
For some time prior to August 2007, Haskell was a resident
of the Seven Acres Jewish Center (the “Center”).  In August 2007, Seven Acres Jewish Senior Care Services, Inc. (“Seven Acres”), owner of
the Center, notified Haskell that he was being discharged from the Center.  
Haskell brought
suit against Seven Acres and Mason—one of the nurses that worked at the Center—on
August 1, 2008, asserting claims of slander per se, intentional infliction of
emotional distress, and breach of fiduciary duty claiming that Seven Acres
fabricated an excuse to discharge him from the Center.[2]  Haskell handled his suit pro se.  According to Haskell, Seven Acres falsely
reported to the police that he had threatened various people with physical
violence, including a threat to murder various people.  Haskell alleged that the real reason for his
discharge was that Seven Acres discovered that he did not qualify for Medicaid
coverage and Seven Acres wanted to force him out to make room for a higher
paying resident.
Defendants filed
an answer on September 19, 2008.  Seven
Acres asserted that, during his time at the Center, Haskell had made repeated
threats to take his own life and, on at least one instance, threatened to kill
staff members of the Center.  Seven Acres
further asserted that the Center was not equipped to treat patients who are
homicidal or suicidal and had to discharge him.
Some
time in November 2008,
Haskell served on Defendants certain documents that he asserted were in
compliance with section 74.351 of the Civil Practice and Remedies Code.  Unaware that they had received the documents,
Defendants filed a motion to dismiss on December 23, 2008 asserting that the
required report had not been filed, compelling dismissal.  Haskell filed a response on January 7, 2009,
asserting that he had filed the report in November 2008 and Defendants had
missed their 21-day deadline to object to any deficiencies in the report.
After Haskell
filed his response, Defendants discovered the documents served by Haskell.  Subsequently, they filed a reply to their
motion arguing that the documents served by Haskell did not constitute an
expert report because they did not address the statutorily required elements of
the standard of care and breach.  After a
couple of hearings, the trial court agreed and dismissed Haskell’s suit and
denied his request for a 30-day extension to cure any deficiencies.  Haskell timely appealed the trial court’s
ruling.
After setting this
case for submission, we abated it, pending the Texas Supreme Court’s opinion in
Scoresby v. Santillan,
346 S.W.3d 546 (Tex. 2011).  Upon lifting
the abatement, we invited the parties to brief the effect of Scoresby on this case.  Seven Acres submitted supplemental
briefing.  Haskell did not.
                                                                                                                        
Sufficiency of the Expert Report
In his first issue, Haskell argues that the trial court
abused its discretion by granting Defendants’ motion to dismiss for failure to
file an expert report.
A.              
Standard of review
We review all rulings related to section 74.351 of the
Texas Civil Practice and Remedies Code under an abuse of discretion standard.  Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001).  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.  Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992).  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.  See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
Although we may defer to the trial court’s factual
determinations, we review questions of law de novo.  Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.
App.—Houston [14th Dist.] 2001, no pet.).  To the extent resolution of the issue before
the trial court requires interpretation of the statute itself, we apply a de
novo standard.  Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.]
2004, no pet.).  A trial court has no
discretion in determining what the law is, which law governs, or how to apply
the law.  Poland v. Ott,
278 S.W.3d 39, 45 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).  An abuse of discretion occurs if the trial
court fails to correctly apply the law to the facts.  Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App.—Dallas 2010, no
pet.).
In reviewing whether an expert report complies with section
74.351, we evaluate whether the report “represents a good-faith effort” to
comply with the statute.  Strom v. Mem’l
Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.]
2003, pet. denied).  In making
this evaluation, we must look only at the information that is contained within
the four corners of the report.  Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002).
B.              
Analysis
In a health-care-liability claim, the plaintiff must serve
within 120 days of filing suit an expert report for each defendant against whom
a health-care-liability claim has been asserted.  Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a)
(Vernon 2011).  An expert report is
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.
Id. § 74.351(r)(6).  The report does
not need to marshal all of the plaintiff’s proof, but must include the expert’s
opinion on each of the three elements: standard of care, breach, and
causation.  Bowie Mem’l,
79 S.W.3d at 53.
If a report is not served as to a defendant physician or
health care provider within the required time period, the trial court must
dismiss all health-care-liability claims as to that defendant and must award
that defendant’s reasonable attorney’s fees and costs of court.  Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(b).  If, however, a report has been timely served,
“[e]ach defendant physician or health care provider whose conduct is implicated
in a report must 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.”  Id. § 74.351(a).  
“[A] document qualifies as an expert report if it contains
a statement of opinion by an individual with expertise indicating that the
claim asserted by the plaintiff against the defendant has merit.”  Scoresby,
346 S.W.3d at 549.
Some
time in November 2008,
Haskell served certain documents on Defendants. 
The documents contained a hand written cover letter with a statement by
Haskell that he was serving the documents “[i]n
compliance with CPRC 74.351.”  Included
in the documents were:
1.                
A letter
from Dr. Kirit Desai, a cardiologist, describing some
of the treatment Haskell had received since his discharge from the Center;
2.                
Dr. Desai’s
curriculum vitae;
3.                
two
letters from Dr. Martin R. Steiner, a neurologist, describing Haskell’s medical
condition at certain examinations in 2007 and 2008 including his condition
after he was discharged from the Center;
4.                
Dr.
Steiner’s curriculum vitae;
5.                
a letter
from Dr. Stuart J. Nathan, a clinical psychologist, describing some of the
emotional issues Haskell experienced after being discharged from the Center,
describing a brief conversation Dr. Nathan had had with the CEO of Seven Acres
in November 2007, and explaining that Haskell has never expressed or exhibited
any homicidal, suicidal or threatening behavior during their sessions;
6.                
Dr.
Nathan’s curriculum vitae;
7.                
a
document entitled “Statement of Resident Rights” promulgated by the Texas
Department of Human Services; and
8.                
a document entitled
“Physician’s Progress Notes” that contains what appear to be hand written notes
by Dr. Steiner concerning a visit by Haskell on October 10, 2007.
After they discovered that they had received a report
served by Haskell, Defendants argued that Haskell “failed to serve an expert
report on the issue of standard of care and breach of the standard of care.”  In the course of the hearings, Haskell
asserted that the document entitled “Statement of Resident Rights” was meant to
establish the applicable standard of care for his expert report.  He further asserted that the documents
established how being dismissed affected his health and that he was a resident
at the Center.  It is undisputed by the
parties that nothing in the report addresses any breach by either defendant as
to any standard of care.
Defendants in this matter urge us to determine that the report
served by Haskell was so deficient as to not constitute a report.  If we hold that Haskell’s report falls into
this category, then the 21-day deadline to object to the report was never
triggered, and the trial court was required to dismiss Haskell’s suit.  See
Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(b) (requiring claim against defendant
who has not been timely served with expert report must be dismissed); Scoresby, 346 S.W.3d at 549 (defining
minimum requirements for document to be considered expert report).  If we hold that Haskell’s report is not so
deficient as to constitute no report at all, then any objections to the report
have been waived and the trial court lacked the authority to dismiss Haskell’s
suit.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)
(providing 21-day deadline to object to deficient expert report); Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex.
2007) (holding failure to object within 21-day deadline waives objections and
trial court must deny motion to dismiss).
If there are multiple defendants in a suit, the report
must be sufficient as to each defendant individually.  Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a); see also Rivenes
v. Holden, 257 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied) (holding if plaintiff does not serve report as to particular defendant,
trial court must dismiss that defendant from suit).  Accordingly, we will review the sufficiency
of the report separately for each defendant.
1.                
Sufficiency of the expert report as to Seven
Acres
The Texas Supreme Court recently addressed whether an
expert report could be so deficient as to be considered no report at all and,
if so, what qualifies as such a report.  Scoresby, 346 S.W.3d
at 549.  It held that an expert
report could be so deficient as to be considered no report at all.  A report avoids falling into this category if
“it contains a statement of opinion by an individual with expertise indicating
that the claim asserted by the plaintiff against the defendant has merit.”  Id.  
In Scoresby, a minor
underwent surgery to remove growths in his sinus cavity. Id. at 550.  The plaintiff, the minor’s father, asserted
that, during the surgery, an incision was made too far into the child’s brain,
lacerating a blood vessel, requiring further surgery, and resulting in brain
damage and partial paralysis.  Id. 
The report was prepared by a neurologist.  Id. at 557.  The
report “described the injury to [the child’s] brain, ascribed it to the
Physician’s breach of the standards of care, and stated that their breach
caused [the child’s] partial paralysis and other lingering debilities.”  Id.  The Texas Supreme Court held that the report
was deficient, particularly because “it did not state the standard of care but
only implied that it was inconsistent with the Physician’s conduct.”  Id.  Nevertheless, the court held that the report
“easily meets the standard” established in that opinion because “there is no
question that in [the neurologist’s] opinion, [the plaintiff’s] claim against
the Physicians has merit.”  Id. 

In contrast, the plaintiff in Velandia alleged that the
defendant doctor “negligently extracted a tooth, resulting in serious personal injuries . . . .”  Velandia v. Contreras, No. 14-11-00141-CV, 2011
WL 5008574, at *1 (Tex. App.—Houston [14th Dist.] Oct.
20, 2011, no pet.).  After the defendant
answered the suit, the plaintiff served him with some documents “described in a
cover letter as ‘reports, dental records[,] and notes
from two dentists’ identified as expert witnesses.”  Id.  The documents consisted of (1) a consultation
letter by one doctor; (2) an x-ray; (3) a page of progress notes by another
doctor; and (4) “related documents including a financial policy written in
Spanish.”  Id.  
Much like this case, the defendant filed a motion to
dismiss after the 120‑day deadline, making no mention of the documents it
had received.  Id.  The plaintiff responded,
identifying those documents as its expert report.  Id.  The defendant responded asserting that the
documents amounted to no report at all.  Id. 

Relying on Scoresby,
the court in Velandia
held that the documents did not constitute an expert report.  Id. at *4. 
Specifically, the court held:
Here, although the purported report of Dr. Lopez was
timely served, it fails to include any opinion or statement that Contreras’s
claim has merit.  Further, assuming Dr.
Lopez is qualified to provide an opinion, his consultation letter satisfies
none of the statutory requirements—he offers no standard of care applicable to
Dr. Velandia, he provides no explanation of how Dr. Velandia failed to meet any standard of care, and he
identifies no causal relationship between any failure on Dr. Velandia’s part and Contreras’s injury, harm, or damages.
Id.  
The analysis in Velandia applies here. 
Nowhere in the documents submitted by Haskell is there an opinion by any
expert asserting that Haskell’s claim has merit.  All three of the doctors included in the
expert report describe actions taken by Seven Acres that form the basis of Haskell’s
suit.  But none claims that those actions
were malpractice that caused Haskell an injury. 
Similarly, while each of the doctors describe some “harm” that Haskell
has suffered after being discharged from the Center, none of them ties this
alleged injury to any wrongful action by Seven Acres.  Most significantly, there is nothing in
Haskell’s report regarding any failure by Seven Acres to meet the applicable
standard of care.  Without such an
assertion by an individual with expertise, there can be no showing that
Haskell’s claim has merit.  See  Scoresby, 346 S.W.3d at 549.
We hold that Haskell’s documents fail to contain “a
statement of opinion by an individual with expertise indicating that the claim
asserted by the plaintiff against the defendant has merit.”  Id.  Accordingly, they do not constitute an expert
report.  Id.  No other report was
filed by Haskell within the 120-day deadline. 
See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a).  As a result, the trial
court was required to dismiss his claims against Seven Acres.  Id.
§ 74.351(b)(2). 

2.                
Sufficiency of the expert report as to Mason
Mason works as a nurse at the Center.  Other than being named as one of the intended
recipients of the report, her name does not appear anywhere in the report.  There is no description of any action she
took, much less any action she took in relation to the matter in dispute.  While the statement of resident rights
provides some indication of the standard of care owed by a nursing facility,
there is nothing in the report that applied this standard of care to
Mason.  Because there is nothing in the
report that links Mason to Haskell’s discharge from the Center, there is
nothing to link the report’s claimed causation to her either.
Any expert report must be sufficient as to each defendant
individually.  Id. § 74.351(a); see
also Rivenes, 257 S.W.3d at 336.  In Rivenes, the plaintiffs served one report prepared by a
doctor as the report for each of the defendants.  257 S.W.3d at 334.  Rivenes did not
object to the report within 21 days but subsequently argued that the report
only addressed the negligence of two other defendants and not him.  Id. at 335, 337.  The
court of appeals agreed, holding that the report was not a report as to Rivenes, that Rivenes’s
obligation to object within 21 days was never triggered, and that the trial
court was required to dismiss Rivenes from the suit.  Id. at 338–39.
The same conclusion is compelled in this case.  Haskell’s report is not a report as to
Mason.  Accordingly, the trial court
correctly dismissed all claims against her. 
See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b)(2).
We overrule Haskell’s first issue.
                                                                                                                                     
30-Day Extension to Cure
In his second issue, Haskell argues that the trial court should
have allowed him 30 days to cure any deficiencies in the report.  If a report is found to be deficient, the
trial court may grant one 30-day extension to cure the deficiencies.  Id. § 74.351(c). 
This rule does not apply as to either defendant in this case,
however.  Seven Acres did not object
within 21 days of service of the report. 
Accordingly, any deficiencies in the report that Haskell would be required
to cure as to Seven Acres have been waived. 
Id.
§ 74.351(a).  
In contrast, if no report is served as to a specific
defendant, then that defendant’s obligation to object to the report is never
triggered.  Rivenes, 257 S.W.3d at 338; see also Scoresby, 346 S.W.3d at 557
(holding 30-day extension may be granted if report is timely served, contains
opinion of individual with expertise that claim has merit, and defendant’s
conduct is implicated).  A plaintiff is
not entitled to a 30-day extension to cure when no report is served.  Ogletree, 262 S.W.3d at 319–20.  Accordingly, the trial court lacked the
authority to grant Haskell a 30-day extension to cure any deficiencies as to
Mason.
We overrule appellant’s second issue.
                                                                                                                                                                   
Conclusion
We affirm the judgment of the trial court.
 
 
                                                                   Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices Keyes, Higley, and Bland.
 




[1]           Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon
2011).
 


[2]           Defendants asserted that all of Haskell’s claims were, in
fact, health-care-liability claims governed by section 74.351 of the Civil
Practice and Remedies Code.  Haskell
disputed this assertion.  The trial
court, however, determined that all of Haskell’s claims were
health-care-liability claims and were governed by section 74.351.  Haskell has not challenged this determination
on appeal.  Accordingly, for purposes of
this appeal, we assume without deciding that Haskell’s claims are governed by
section 74.351.  See Zamarron v. Shinko Wire Co., 125
S.W.3d 132, 139 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (holding
courts do not consider points not raised in briefs).


