                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                 NO. 02-10-00077-CV


RAMON J. GARCIA,                                                     APPELLANT
M.D.

                                            V.

STEPHANIE ALLEN                                                        APPELLEE


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         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                                      OPINION
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                                    I. INTRODUCTION

      In two issues, Appellant Ramon J. Garcia, M.D. contends that the trial

court abused its discretion by denying his motion to dismiss Appellee Stephanie

Allen’s health care liability suit against him based on the alleged deficiencies in

her timely-filed statutory expert report. For the reasons set forth below, we hold
that the trial court did not abuse its discretion. We will therefore affirm the trial

court’s order denying Dr. Garcia’s motion to dismiss.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Allen filed suit in January 2005. She timely filed and served on Dr. Garcia

a statutory expert report and curriculum vitae. Dr. Garcia timely filed objections

to Allen’s report and moved to dismiss her health care liability claim. Dr. Garcia

did not request a hearing on his objections or motion to dismiss.

      In due course, the trial court signed a docket control order setting the case

for trial the week of May 19, 2008. Discovery proceeded. Allen deposed four

expert witnesses, designated them as expert witnesses, and served their reports

on Dr. Garcia—all in advance of the court-ordered deadline for expert witness

designation; the four experts were Dr. Charles Marable, Dr. John D. Fisk, Dr.

Richard Fulbright, and Gerald Casenave. Dr. Garcia’s attorney was present at

the depositions of these four experts and cross-examined each of them; Dr.

Garcia himself attended the deposition of Dr. Fisk. The case was subsequently

reset for trial the week of April 13, 2009; the week of October 26, 2009; and for

November 2, 2009. The trial court later granted an indefinite continuance of the

November 2, 2009 trial date.

      In late September 2009, after the depositions of Dr. Marable, Dr. Fisk, Dr.

Fulbright, and Mr. Casenave and after Allen had served the reports of each of

these experts on Dr. Garcia, Dr. Garcia filed a second motion to dismiss, which

was titled ―Motion to Dismiss Based on Previously Filed Objections To Expert

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Report.‖ Dr. Garcia asserted that alleged inadequacies in Allen’s initial statutory

expert report, which had been timely filed almost five years earlier, entitled him to

dismissal of Allen’s health care liability claim against him.

      On November 30, 2009, Dr. Garcia filed a combined traditional and no-

evidence motion for summary judgment challenging the causation element of

Allen’s health care liability claim against him. Dr. Garcia’s motion for summary

judgment and his attached summary judgment evidence spans 213 pages in the

clerk’s record. The motion for summary judgment contains a detailed statement

of facts concerning Allen’s health care liability allegations against Dr. Garcia.

The summary judgment evidence attached to Dr. Garcia’s motion for summary

judgment includes Allen’s medical records, medical reports relating to Allen

authored by Dr. Garcia, deposition excerpts from the deposition of Dr. Marable,

deposition excerpts from the deposition of Allen herself, and deposition excerpts

from the deposition of Dr. Fulbright.

      On January 28, 2010, Allen filed with the trial court and served on Dr.

Garcia ―Supplements to Plaintiff’s Expert Report That Was Filed At The Initiation

Of Litigation.‖    Allen filed as supplements to her initial expert report a

supplemental report from Dr. Marable, the expert report and curriculum vitae of

Dr. Fisk, the expert report and curriculum vitae of Dr. Fulbright, and the expert

report and curriculum vitae of Mr. Casenave. Allen also filed as supplements to

her initial expert report deposition excerpts from Dr. Marable’s, Dr. Fisk’s, Dr.

Fullbright’s, and Mr. Casenave’s depositions. The supplement indicated that all

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of these reports and vitae had been previously served on Dr. Garcia in advance

of the court-ordered deadline to designate expert witnesses. Allen also filed a

response to Dr. Garcia’s motion to dismiss specifically requesting that, if the trial

court found Dr. Marable’s initial report inadequate, the court grant her thirty days

to amend Dr. Marable’s initial report.

      On February 4, 2010, the trial court held a hearing on both Dr. Garcia’s

second motion to dismiss and his motion for summary judgment; the trial court

signed an order denying both motions.             The order stated, ―After careful

consideration of Defendant’s summary judgment motion and motion to dismiss,

Plaintiff’s response, and all other pleadings filed, including the Court’s file, as well

as case law cited and arguments of counsel, it is this Court’s opinion that

Defendant’s motions should be denied.‖ Dr. Garcia perfected this interlocutory

appeal of the trial court’s February 17, 2010 order denying his motion to dismiss.

                              III. STANDARD OF REVIEW

      We review a trial court’s denial of a motion to dismiss for an abuse of

discretion.   Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v.

Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied); Ctr.

for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.

App.—Fort Worth 2008, pet. denied). To determine whether a trial court abused

its discretion, we must decide whether the trial court acted without reference to

any guiding rules or principles; in other words, we must decide whether the act

was arbitrary or unreasonable.       Downer v. Aquamarine Operators, Inc., 701

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S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely

because a trial court may decide a matter within its discretion in a different

manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id. But a trial court has

no discretion in determining what the law is or in applying the law to the facts,

and thus ―a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.‖ Walker v. Packer, 827 S.W.2d 833, 840 (Tex.

1992) (orig. proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort

Worth 2004, pet. denied).

                IV. STATUTORY STANDARDS FOR EXPERT REPORTS

      Chapter 74 requires a health care liability claimant to serve defendants

with an expert report and curriculum vitae within 120 days of filing the claim. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2010).                 The

purpose of the expert report requirement is to inform the defendant of the specific

conduct the plaintiff has called into question and to provide a basis for the trial

court to conclude that the claims have merit. Bowie Mem’l Hosp. v. Wright, 79

S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). An expert report ―need not marshal

all the plaintiff’s proof.‖ Palacios, 46 S.W.3d at 878 (construing former Texas

Revised Civil Statute art. 4590i, § 13.01).      Additionally, the information in the

report ―does not have to meet the same requirements as the evidence offered in

a summary-judgment proceeding or at trial.‖ Id. at 879.

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      Once a report is timely served, a defendant whose conduct is implicated in

the report must serve any objection to the sufficiency of the report within twenty-

one days after the date the defendant was served or otherwise waive any

objections. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the defendant files

a motion challenging the adequacy of the expert report, the court shall grant the

motion ―only if it appears to the court, after hearing, that the report does not

represent an objective good faith effort to comply with the definition of an expert

report.‖ Id. § 74.351(l). The trial court may grant to the claimant one thirty-day

extension to cure a deficiency in the initial expert report. Id. § 74.351(c). If a

claimant does not receive notice that the trial court has granted an extension

within the initial time to file an expert report, then the thirty-day extension runs

from the date the claimant receives notice of the extension. Id. A claimant may

file separate expert reports addressing different liability and causation issues

concerning a single physician defendant. Id. § 74.351(i).

                 V. NO ABUSE OF DISCRETION BY THE TRIAL COURT

      A. Initial Report Adequate

      Looking to the information within the four corners of Allen’s initial May 11,

2005 report by Dr. Marable, that report indicates that Allen suffered blurred and

double vision in 1999, that an MRI of her head was performed in 1999, and that

the radiologist who read the scan negligently read it as normal.        The report

indicates that a repeat MRI in 2003 showed a now-inoperable tumor.              Dr.

Marable’s initial report states, in pertinent part,

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      The patient has a left cavernous sinus tumor, evident on the scan in
      1999, and is now an inoperable tumor, found in 2003 on the repeat
      MRI. It was present in 1999.

             . . . The radiologist [Dr. Garcia is the radiologist who read
      Allen’s 1999 MRI] who read this scan in 1999 was negligent, whose
      negligence has basically caused this tumor to develop and grow to
      the point it is now inoperable. The radiologist was negligent in failing
      to read the scan appropriately. Had he read the MRI appropriately,
      the tumor would have at that point been a size that would have been
      operable, whereas now it is inoperable. The appropriate care would
      have been to read the scan appropriately and correctly and this was
      not done.

      Concerning what a proper reading of Allen’s 1999 MRI would have shown,

Dr. Marable’s initial report states,

             Review of the [1999] MRI shows the lateral ventricles are
      normal in size and configuration. There is no displacement or mass
      effect noted. White and gray matter revealed normal signal, except
      in the area of the cavernous sinus on the left. There was an area of
      a tumor that was noted, which looked to be more of a pliable tumor.
      There were no areas of infarction or hemorrhage noted. There was
      no subdural or epidural collections evident.        Cerebellum and
      posterior fossa were unremarkable.

      Thus, Dr. Marable’s initial report adequately sets forth the standard of

care—to appropriately and correctly read the 1999 MRI scan of Allen’s head that

showed an area of tumor that looked to be more of a pliable tumor; adequately

sets forth Dr. Garcia’s breach of the standard of care––his failure to correctly

read the 1999 scan; and adequately sets forth causation––the tumor was

operable in 1999 but has grown and is now inoperable. See id. § 74.351(r)(6)

(defining expert report to include fair summary of expert’s opinion as to

applicable standard of care, breach of that standard, and causal relationship


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between breach and injury); Granbury Minor Emergency Clinic v. Thiel, 296

S.W.3d 261, 270 (Tex. App.—Fort Worth 2009, no pet.) (―[S]tatements

concerning the standard of care and breach need only identify what care was

expected and was not given with such specificity that inferences need not be

indulged to discern them.‖) (citing Palacios, 46 S.W.3d at 880; Benish v. Grottie,

281 S.W.3d 184, 198 (Tex. App.—Fort Worth 2009, pet. denied); and Thomas v.

Alford, 230 S.W.3d 853, 858 (Tex. App.—Houston [14th Dist.] 2007, no pet.));

see also Foster v. Richardson, 303 S.W.3d 833, 841 (Tex. App.—Fort Worth

2009, no pet.) (holding report adequate on causation because it explained how

doctor’s delayed diagnosis subjected patient to prolonged pain); Moore v.

Sutherland, 107 S.W.3d 786, 791 (Tex. App.—Texarkana 2003, pet. denied)

(holding that expert report based on doctor’s misdiagnosis was sufficient as to

causation when it specifically stated what defendant ―should have done and what

happened because he failed to do it‖).1 We hold that the trial court did not abuse


      1
       Dr. Garcia also complains on appeal that Dr. Marable’s expert report is
inadequate to show that he is qualified to opine as to causation, but Dr. Garcia
did not raise such an objection within twenty-one days after the date the report
was served. Consequently, he waived that objection. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(a) (providing that ―all objections are waived‖ when
defendant physician fails to file and serve any objections to sufficiency of expert
report within twenty-one days after service); Ogletree v. Matthews, 262 S.W.3d
316, 322 (Tex. 2007); see also Bakhtari v. Estate of Dumas, 317 S.W.3d 486,
493 (Tex. App.—Dallas 2010, no pet.) (holding that defendant waived objections
that were made for the first time after the twenty-one-day deadline and that trial
court could not have properly granted defendant’s motion to dismiss based on
her untimely objections); Williams v. Mora, 264 S.W.3d 888, 891 (Tex. App.—
Waco 2008, no pet.) (holding defendant waived objections not made within
twenty-one-day period and addressing only those objections timely raised);
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its discretion by finding that Allen’s initial expert report represented an objective

good faith effort to comply with the definition of an expert report. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(l); Jernigan, 195 S.W.3d at 93; Maris, 262

S.W.3d at 383; Ctr. for Neurological Disorders, P.A., 261 S.W.3d at 290–91.

      B. Alternatively, Any Inadequacy Cured

      Even if Allen’s initial May 11, 2005 expert report by Dr. Marable was

somehow deficient, the trial court did not abuse its discretion, upon finding her

initial report deficient, by granting Allen’s request for thirty days to cure any

deficiency and by finding the report, as supplemented, adequate. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(c) (providing that a trial court may grant one

thirty-day extension in order to cure any deficiency when elements of an expert

report are found deficient); Leland v. Brandal, 257 S.W.3d 204, 207–08 (Tex.

2008).

      At the time of the dismissal hearing, Allen had already supplemented her

initial expert report, as indicated above, with a supplemental report from Dr.

Marable, the expert report and curriculum vitae of Dr. Fisk, the expert report and

curriculum vitae of Dr. Fulbright, the expert report and curriculum vitae of Mr.

Casenave, and deposition excerpts from Dr. Marable’s, Dr. Fisk’s, Dr.

Fullbright’s, and Mr. Casenave’s depositions. Dr. Marable’s supplemental report

provides,


Walters v. Hudoba, No. 02-08-00196-CV, 2009 WL 161079, at *3 (Tex. App.—
Fort Worth Jan. 22, 2009, no pet.) (mem. op.) (same).
                                         9
      Dr. Garcia, a Board-Certified Radiologist, was negligent due to the
      fact he misread the scan as normal. His failures were that he failed
      to appropriately read the scan and missed the diagnosis. The
      appropriate standard of care would have been for him to read the
      scan correctly and find the meningioma. Had he read the MRI
      appropriately, the tumor would have been found at that point and
      been operable and much more amenable to gamma knife treatment.

             . . . This resulted in the meningioma to exacerbate and grow to
      the size it is today. Although [Allen] would have still had to have the
      gamma knife for the meningioma either way, at that time the gamma
      knife therapy would have really made the tumor a lot smaller and
      would not have been allowed to grow and have the extensive
      damage that it has at the present time, such as wrapping around the
      carotid artery. It would not cause the displacement of the brain
      tissue that it has done, would not have caused the cognitive defects.

            . . . [T]his case has merit due to the fact that had it been
      discovered earlier, the results would have [been] totally different
      than they are now. She would not have all the damage to the brain
      and the subsequent damage that the growth of this tumor is going to
      cause in the future.

Dr. Fisk’s report provides,

      The standard of care applicable to Dr. Ramon Garcia was to
      accurately interpret the MRI examination of 11/12/99. Dr. Ramon
      Garcia breached the standard of care in that he failed to diagnose
      the cavernous meningioma, which was readily apparent on that
      examination. In fact, the history available on Dr. Garcia’s note
      indicated that the diagnosis was ―sixth nerve palsy,‖ and Dr. Garcia
      specifically indicated in a very short report of that examination as his
      last sentence in his report, ―No abnormalities are seen in the
      cavernous sinus or the trajectory of the sixth cranial nerves.‖ The
      failure of Dr. Ramon Garcia to meet the standard of care discussed
      above allowed the meningioma to grow otherwise undetected until a
      second MRI scan was obtained on 3/27/03, to the point that the
      tumor is now inoperable as judged by Dr. Charles D. Marable, M.D.

             The deviation from the standard of care, outlined foregoing,
      are the specific conduct which I call in to question. The proper steps
      that constitute normal standard of care would have been to interpret
      the MRI scan completely, identifying the meningioma in its

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      characteristic appearance, and alerting the patient and her care
      providers with that information so that therapeutic care would have
      been instituted at that time.

      When the trial court heard Dr. Garcia’s motion to dismiss, the trial court

had the discretion, if it found Allen’s initial expert report deficient, to grant Allen’s

request for a thirty-day extension to cure any deficiencies, and after granting

such an extension (whether impliedly or explicitly), the trial court could consider

the previously-filed supplements to Allen’s initial expert report to cure those

deficiencies. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (providing that

if ―elements of the [expert] report are found deficient, the court may grant one 30-

day extension to the claimant in order to cure the deficiency‖); id. § 74.351(i)

(―Nothing in this section shall be construed to mean that a single expert must

address all liability and causation issues . . . .‖); Tex. R. App. P. 33.1(a)(2)(A)

(providing that a trial court may rule on a motion expressly or implicitly); Leland,

257 S.W.3d at 207–08; see also Lewis v. Funderburk, 253 S.W.3d 204, 208

(Tex. 2008) (holding that a deficiency in any requirement of section 74.351 may

be cured by amending an expert report or by serving a report from a separate

expert). We have already explained how the initial expert report satisfied the

requirements of an expert report under section 74.351; similarly, the supplements

to Allen’s initial expert report, including the supplemental report of Dr. Marable

and the expert report of Dr. Fisk, adequately set forth the standard of care—to

accurately and completely interpret the 1999 MRI scan of Allen’s head,

identifying the meningioma in its characteristic appearance, and to alert Allen so

                                           11
that she could receive therapeutic care; adequately set forth Dr. Garcia’s breach

of the standard of care––his failure to correctly read the 1999 MRI scan and

diagnose the cavernous meningioma, which was readily apparent from the 1999

MRI scan; and adequately set forth causation––exacerbation of the meningioma

and growth of the tumor, causing it to become inoperable and less amenable to

gamma knife treatment and causing displacement of the brain tissue and

cognitive defects. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i),(r)(6).

          Because the trial court could have impliedly granted Allen’s request for a

thirty-day extension pursuant to section 74.351(c) and considered Allen’s

previously-filed supplements to her initial report in determining that her expert

report as supplemented was sufficient, we hold that the trial court did not abuse

its discretion by denying Dr. Garcia’s motion to dismiss. See id. § 74.351(c),

(r)(6).

          Moreover, the record before us is replete with indicia that both Dr. Garcia

and the trial court understood the basis of Allen’s claims. See Bowie Mem’l

Hosp., 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879) (explaining that

purpose of expert report is to inform defendant of specific conduct plaintiff has

called into question and to provide basis for trial court to conclude that claims

have merit).      Dr. Garcia’s 213-page summary judgment motion and attached

summary judgment evidence clearly demonstrate that Dr. Garcia understood the

nature of Allen’s claims against him. And the trial court’s denial of Dr. Garcia’s



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no-evidence and traditional motion for summary judgment shows that the trial

court possessed adequate information to determine that Allen’s claims had merit.

      Consequently, we hold that Dr. Marable’s initial expert report was

adequate and that the trial court did not abuse its discretion by denying Dr.

Garcia’s motion to dismiss. We alternatively hold that, even assuming Allen’s

initial expert report of Dr. Marable was somehow deficient, the trial court did not

abuse its discretion by impliedly granting Allen a thirty-day extension to cure any

deficiencies or by determining that Allen’s initial report, as supplemented,

satisfied the requirements of an expert report under section 74.351. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(c), (r)(6). We overrule Dr. Garcia’s first

and second issues.

                                 VI. CONCLUSION

      Having overruled Dr. Garcia’s two issues, we affirm the trial court’s order

denying Dr. Garcia’s motion to dismiss.



                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: February 10, 2011




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