REVERSE and REMAND; and Opinion Filed December 7, 2017.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-00332-CV

               DEBBIE WHEELER, INDIVIDUALLY AND AS THE
           REPRESENTATIVE OF THE ESTATE OF LARRY J. WHEELER,
               KIM ADAMS, AND KRISTIE STEWART, Appellants

                                               V.

                METHODIST RICHARDSON MEDICAL CENTER AND
               METHODIST HEALTH SYSTEM FOUNDATION, Appellees

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 416-01327-2016

                             MEMORANDUM OPINION
                       Before Justices Lang-Miers, Brown, and Boatright
                                Opinion by Justice Lang-Miers
       In this health care liability case, the trial court dismissed the claims without granting

appellants a thirty-day extension to cure deficiencies in their expert reports because the initial

reports did not contain any opinion regarding causation. We conclude that the trial court abused

its discretion, and we reverse and remand.

                                         BACKGROUND

       Larry J. Wheeler was admitted to Methodist Richardson Medical Center and was

diagnosed with narrowing of a carotid artery and occlusion of a coronary artery.               He

subsequently underwent surgery on a carotid artery and coronary surgery. After surgery and the
removal of mechanical ventilation, Larry Wheeler suffered from lack of oxygen to the brain.

Ultimately, the family decided to remove him from ventilator support. He died the following

day.

             Debbie Wheeler, individually and as the representative of the estate of Larry J. Wheeler,

Kim Adams, and Kristie Stewart (Wheeler Parties) sued Methodist Richardson Medical Center,

Methodist Health System Foundation (Methodist Parties), and Jose A. Gutierrez, M.D. 1 under

the wrongful death and survival statutes, asserting claims of medical negligence and gross

negligence against all three defendants and respondeat superior against the Methodist Parties. 2

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.011, 71.021 (West 2008) (wrongful death

and survival statutes).

             The Wheeler Parties alleged that the Methodist Parties were negligent “in that the nurses

failed to institute a number of interventions . . . to correct the critically low oxygen

saturations[,]” 3 that they should be liable under the doctrine of respondeat superior, and that their

negligent acts caused Larry Wheeler’s injuries, death, and damages.

             The Wheeler Parties timely filed and served expert reports from Jay S. Ellis Jr., M.D. and

Claudia Estrada, R.N. 4 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2016);

see also id. § 74.351(i) (providing a claimant may satisfy the requirement of serving an expert

report by “serving reports of separate experts”).




     1
         Gutierrez is not a party to this appeal.
     2
        The Wheeler Parties asserted the claim of respondeat superior against Methodist Richardson Medical Center “and/or” Methodist Health
System Foundation. The Wheeler Parties acknowledged that each of the Methodist Parties is a “health care provider” as defined in Chapter 74 of
the civil practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12) (West Supp. 2016).
     3
       They also alleged that Gutierrez breached the standard of care in providing medical care and treatment to Larry Wheeler by “failing to
adequately verify that the endotracheal tube placed in Mr. Wheeler was in the trachea and not in the esophagus as the chest x-ray proved.”
     4
       No party contends that the reports were not timely. See id. § 74.351(a) (requiring a claimant to serve an expert report not later than 120
days after the date a defendant’s original answer is filed).



                                                                     –2–
           The Methodist Parties filed objections to both reports. 5 Among other objections, the

Methodist Parties contended that Ellis’s original report did not “meet the minimum standards set

forth by the Texas Supreme Court” because it did not “address in any manner either” that the

Wheeler Parties’ “claim against Methodist is meritorious” or “how Methodist’s conduct caused

the injuries suffered by Mr. Wheeler.” They argued that the report “must be considered no report

at all.”

           The Wheeler Parties requested that, if the trial court concluded that any element of their

expert reports was insufficient, the trial court grant them a thirty-day extension to cure the

reports. The Wheeler Parties argued that, “[a]lthough Dr. Ellis’s initial report does not address

causation as to [Methodist] and its staff, one missing element does not cause two reports to

become no report” but, instead, “prompts the Court to ask, as required by Scoresby [sic], whether

the report’s deficiencies are curable.” See Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.

2011). They argued that when a deficient expert report is curable, under the Texas Supreme

Court precedents of Scoresby and Ogletree v. Matthews, 262 S.W.3d 316, 320–21 (Tex. 2007),

“the statute’s extension is not only available, but virtually mandatory when requested.” The

Wheeler Parties attached Ellis’s amended report to their brief concerning the thirty-day

extension, contending that it addressed causation and demonstrated that the deficiency in his

previous report is curable. The Methodist Parties also objected to the amended report on the

grounds that Ellis did not adequately establish his qualifications in the amended report and the

report was insufficient and conclusory.




     5
        Gutierrez also filed objections to Ellis’s report. He argued that the Wheeler Parties had no right to an extension to supplement the expert
reports because the reports were “wholly conclusory as to the essential element of causation and therefore cannot constitute a good faith effort
under Section 74.351.” The Wheeler Parties argued that, notwithstanding Gutierrez’s objections, the expert reports satisfied the requirements of
Chapter 74. They also requested that, if the trial court found the reports to be insufficient, the court grant them a thirty-day extension to cure any
deficiency in the reports. The trial court overruled Gutierrez’s objections.



                                                                        –3–
       The trial court sustained the Methodist Parties’ objections to Ellis’s and Estrada’s original

reports and concluded that “the documents served by” the Wheeler Parties “do not meet the

essential elements required of an expert report as that term is defined pursuant to Chapter 74[.]”

The order stated that “[s]pecifically, there is no report that addresses the required element of

causation as it pertains to” the Methodist Parties. The trial court concluded that “[t]he absence of

an essential element amounts to no report” and ordered the claims alleged against the Methodist

Parties dismissed with prejudice. The trial court did not make any determinations about the

amended report.

       The Wheeler Parties filed this interlocutory appeal challenging the trial court’s order

granting the motion to dismiss.

                                     STANDARD OF REVIEW

       We review a trial court’s decision to dismiss a health care liability claim and its decision

concerning the denial of an extension under section 74.351(c) for an abuse of discretion. See

Samlowski v. Wooten, 332 S.W.3d 404, 408 n.2 (Tex. 2011) (plurality op.); Jernigan v. Langley,

195 S.W.3d 91, 93 (Tex. 2006) (per curiam). A trial court abuses its discretion if it acts

arbitrarily, unreasonably, or without reference to any guiding rules or principles. Bakhtari v.

Estate of Dumas, 317 S.W.3d 486, 490 (Tex. App.—Dallas 2010, no pet.). A trial court does not

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

court might have decided the matter. Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916

(Tex. App.—Dallas 2007, pet. denied). A trial court has no discretion, however, in determining

what the law is or in applying the law to the facts. Id. A clear failure by the trial judge to

analyze or apply the law correctly will constitute an abuse of discretion. Id.




                                                –4–
                                        APPLICABLE LAW

       Section 74.351 of the civil practice and remedies code requires a claimant in a health care

liability claim to serve the defendant or its attorney with an expert report no later than 120 days

after the defendant files its original answer. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

An expert report constitutes “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). Section 74.351(c) also provides:

       If an expert report has not been served within the period specified by Subsection
       (a) because elements of the report are found deficient, the court may grant one 30-
       day extension to the claimant in order to cure the deficiency.

Id. § 74.351(c).

       In Scoresby, 346 S.W.3d at 549, 557, the Supreme Court of Texas concluded that an

expert report was deficient, in part because it did not state the standard of care, but that it

nevertheless met the “lenient standard” for an extension to cure deficiencies in the report. As a

result, the supreme court held that the trial court’s order allowing thirty days to cure the

deficiencies and denying the defendants’ motions to dismiss was not appealable and affirmed the

court of appeals’ judgment dismissing the appeal for want of jurisdiction. Id. at 549; see also

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2017) (stating “that an appeal

may not be taken from an order granting an extension under Section 74.351”). The court stated

that the trial court should “err on the side of granting additional time and must grant it if the

deficiencies are curable.” Scoresby, 346 S.W.3d at 549. The court said that “[t]he purpose of the

expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their




                                                –5–
merits.” Id. at 554. And the court stated that “[a]n inadequate expert report does not indicate a

frivolous claim if the report’s deficiencies are readily curable.” Id. at 556. The court concluded,

       [A] thirty-day extension to cure deficiencies in an expert report may be granted if
       the report is served by the statutory deadline, if it contains the opinion of an
       individual with expertise that the claim has merit, and if the defendant’s conduct
       is implicated. We recognize that this is a minimal standard, but we think it is
       necessary if multiple interlocutory appeals are to be avoided, and appropriate to
       give a claimant the opportunity provided by the Act’s thirty-day extension to
       show that a claim has merit. All deficiencies, whether in the expert’s opinions or
       qualifications, are subject to being cured before an appeal may be taken from the
       trial court’s refusal to dismiss the case.

Id. at 557. The court stated that the report in Scoresby “easily meets this standard” even though

the report did not state the standard of care. Id.

                                              ANALYSIS

       The Methodist Parties argued below and the Wheeler Parties conceded that neither of the

Wheeler Parties’ original expert reports contained an opinion on causation. The trial court

dismissed the claims without granting the Wheeler Parties a thirty-day extension to cure the

deficiencies.

       Applying Scoresby’s standards here, the Wheeler Parties argue that the trial court abused

its discretion by dismissing their claims and impliedly denying them a thirty-day extension to

amend their expert reports. The Methodist Parties argue to the contrary, contending that this

Court in Hollingsworth v. Springs, 353 S.W.3d 506, 523–24 (Tex. App.—Dallas 2011, no pet.),

held that, where the expert report did not discuss causation on two of the claims, the report was

not eligible for an extension. They argue that, applying Hollingsworth, the Wheeler Parties were

not entitled to an extension because Ellis’s report does not address the required element of

causation. We disagree.

       We concluded in Hollingsworth that extensions may not be granted if any expert report

“is ‘absent’ as opposed to deficient.” Id. at 524. In doing so, we relied on Justice Wainright’s

                                                 –6–
separate dissenting and concurring opinion in Samlowski v. Wooten, 332 S.W.3d 404, 417–18

(Tex. 2011) (Wainright, J., dissenting and concurring), and stated, “If an expert report fails to

address all required elements of a claim, the trial court may not consider an extension.” 6

Hollingsworth, 353 S.W.3d at 524. But the majority opinion in Scoresby, 346 S.W.3d at 549,

556–57, was decided several months after the plurality opinion in Samlowski, and Scoresby

controls the issue here. Like these reports, the expert report in Scoresby was deficient because it

did not include an element that was required in an expert report under section 74.351(r)(6). Id. at

557; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Nevertheless, the Scoresby

court concluded that the report “me[t] th[e] test” to qualify as an expert report. Scoresby, 346

S.W.3d at 549.

           The Methodist Parties also argue that, although the trial court had discretion to decide

whether to grant the extension to amend Ellis’s report, it was not obligated to exercise its

discretion to grant an extension. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (providing

“the court may grant one [thirty] day extension”); Scoresby, 346 S.W.3d at 557 (stating “that a

thirty-day extension to cure deficiencies in an expert report may be granted”); id. at 558 (Willett,

J., concurring) (describing “deficient-report cases (where an extension is discretionary) and no-

report cases (where dismissal is mandatory)”).                                  But the Scoresby court characterizes the

standards for granting an extension as “minimal” and “lenient.” Scoresby, 346 S.W.3d at 549,

557. And Scoresby states that the plaintiff should be given an opportunity to cure a deficiency if

it is possible to do so. Id. at 549.




     6
       The Methodist Parties contend that, in Patterson v. Ortiz, 412 S.W.3d 833, 838–39 (Tex. App.—Dallas 2013, no pet.), “this Court again
examined the issue of sufficiency of an expert report’s causation element for purposes of an extension under Section 74.351(c)” and “analyzed its
holding in Hollingsworth in relation to a more thorough expert report, and tightened the applicability of the Hollingsworth holding.” But
Patterson’s discussion of Hollingsworth concerned whether an expert report sufficiently addressed causation, not the issue before us here:
whether the trial court should have granted a motion to extend to cure a deficiency in an expert report under section 74.351(c). Id.; see also TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(c).



                                                                      –7–
           Consequently, applying Scoresby, we conclude that the Wheeler Parties satisfied this

“minimal” and “lenient” standard and that the trial court abused its discretion by granting the

motion to dismiss without granting the Wheeler Parties an opportunity to cure the deficiency in

accordance with the supreme court’s decision in Scoresby. See id. (“[A]n opinion’s inadequacies

are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so.”);

Biggs v. Baylor Univ. Med. Ctr., 336 S.W.3d 854, 860 (Tex. App.—Dallas 2011, pet. denied)

(noting “Samlowski provid[es] guidance regarding section 74.351(c) and indicat[es] that trial

courts should err on the side of granting extensions”). 7

           We sustain the Wheeler Parties’ issue. 8

                                                             CONCLUSION

           We reverse the trial court’s order dismissing the Wheeler Parties’ claims and remand this

case for further proceedings consistent with this opinion.




                                                                           /Elizabeth Lang-Miers/
                                                                           ELIZABETH LANG-MIERS
                                                                           JUSTICE


170332F.P05




     7
        Because the trial court based its dismissal on the absence of an opinion on the element of causation and our conclusion that, under
Scoresby, the trial court erred in doing so, it is not necessary for us to also address the Wheeler Parties’ argument that the test set forth by
Scoresby focuses on the curability of the report and not its sufficiency or the Methodist Parties’ opposing argument that Scoresby sets forth a
three-pronged test, rather than curability, as the standard to determine whether to grant an extension to cure. See TEX. R. APP. P. 47.1. In
addition, we need not also address the Wheeler Parties’ claims that Ellis’s amended report demonstrates the curability of their expert reports.
And we need not also address the Methodist Parties’ arguments that Ellis’s amended report should not be considered by the trial court with
respect to the motion to extend. See id.
     8
        During oral argument, the Wheeler Parties’ counsel withdrew their second issue concerning whether the Methodist Parties waived their
objections to the expert reports.



                                                                     –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

DEBBIE WHEELER, INDIVIDUALLY                       On Appeal from the 416th Judicial District
AND AS THE REPRESENTATIVE OF                       Court, Collin County, Texas
THE ESTATE OF LARRY J. WHEELER,                    Trial Court Cause No. 416-01327-2016.
KIM ADAMS, AND KRISTIE STEWART,                    Opinion delivered by Justice Lang-Miers,
Appellants                                         Justices Brown and Boatright participating.

No. 05-17-00332-CV        V.

METHODIST RICHARDSON MEDICAL
CENTER AND METHODIST HEALTH
SYSTEM FOUNDATION, Appellees

        In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

     It is ORDERED that appellants DEBBIE WHEELER, INDIVIDUALLY AND AS THE
REPRESENTATIVE OF THE ESTATE OF LARRY J. WHEELER, KIM ADAMS, AND
KRISTIE STEWART recover their costs of this appeal from appellees METHODIST
RICHARDSON MEDICAL CENTER AND METHODIST HEALTH SYSTEM
FOUNDATION.


Judgment entered this 7th day of December, 2017.




                                             –9–
