                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00271-CV

ROYAL H. BENSON, III, M.D., INDIVIDUALLY
AND D/B/A SOUTHWEST CENTER FOR
FEMALE GENITAL REFINEMENT, AND
BENSON OB/GYN CENTER, PA,
                                        Appellants
v.

JO LYNN VERNON,
                                                          Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 08-000533-CV-85


               CONCURRING AND DISSENTING OPINION


      This is a medical malpractice expert report interlocutory appeal. The Court

makes a number of decisions in this proceeding and ultimately reverses and remands in

part and affirms in part the decision of the trial court. For a number of reasons that I

will try to explain below, I cannot join any part of the Court’s opinion other than as

expressly stated herein. My discussion consists primarily of practical concerns about

the interaction and purpose of pleadings, the relevant statute, and the related motion
practice, and an analysis of the record.

                                              I

                          What is a health care liability claim?

       From the prayers in Benson’s objections to the expert report and his motion to

dismiss due to the inadequacy of the report, and his brief and arguments on appeal, it is

evident that Benson views a health care liability claim very narrowly. By narrowly, I

mean that he treats each possible component as a “claim” rather than as part of a claim.

The Objections

       In Benson’s 19 pages of objections to the adequacy of Vernon’s expert’s report, he

asserts that the expert

       report is deficient as to the following claims in Plaintiff’s Original Petition
       that are not even addressed in his [Vernon’s expert’s] report:

           a. Plaintiff’s right breast implant was improperly placed;

           b. Plaintiff required a pulmonary specialist following her
              surgery;

           c. Plaintiff required a radiologist to review her chest x-ray film;

           d. Plaintiff required a referral to a cosmetic surgeon;

           e. Plaintiff’s medical records were altered or fabricated;

           f. Dr. Benson’s care will cause future pain and mental anguish;

           g. Dr. Benson’s care will cause Plaintiff future medical expense;

           h. Dr. Benson’s care caused physical incapacity, disability and
              disfigurement;

           i. Dr. Benson’s care will cause future physical incapacity,
              disability and disfigurement; and

Benson v. Vernon                                                                         Page 2
            j.   Dr. Benson’s care caused Plaintiff to lose earnings in the
                 past.

CR at 33. (Emphasis added).

The Motion

         These same complaints were essentially converted to the grounds for Benson’s

26-page “Motion to Dismiss Pursuant to Section 74.351(B).” CR at 73. The prayer to

that motion reiterates, almost verbatim, the same complaints but asserts that rather than

simply objectionable defects in the expert report, they are each claims that are omitted

from the report, thus entitling Benson to have each of these claims dismissed and upon

which he should recover his attorney fees. In Benson’s motion to dismiss, he asserts the

expert

         report is deficient as to the following claims in Plaintiff’s Original Petition
         that are not even addressed in his [Vernon’s expert’s] reports:

             a. Dr. Benson was negligent by improperly placing the right
             breast implant;

             b. Dr. Benson was negligent by not referring Plaintiff to a
             pulmonary specialist following her surgery;

             c. Dr. Benson was negligent by sending Plaintiff to an urgent care
             clinic for a chest x-ray instead of referring her directly to a
             radiologist;

             d. Dr. Benson was negligent by not identifying the cause of
             swelling or asymmetry of the right breast;

             e. Dr. Benson was negligent by failing to assure proper placement
             of the right implant;

             f. Dr. Benson was negligent by altering or fabricating Plaintiff’s
             medical records;

Benson v. Vernon                                                                           Page 3
           g. Dr. Benson’s care will cause future pain and mental anguish;

           h. Dr. Benson’s care will cause Plaintiff future medical expenses;

           i. Dr. Benson’s care caused physical incapacity, disability and
           disfigurement;

           j. Dr. Benson’s care will cause future physical incapacity,
           disability and disfigurement; and

           k. Dr. Benson’s care caused Plaintiff to lose earnings in the past.

CR at 96 (emphasis added).

The Narrow View

       In my humble opinion, Benson’s view of what constitutes a health care liability

claim is entirely too narrow. In at least one aspect, the Court erroneously joins him in

that narrow view.

       Benson’s objections and his motion attack what are actually either individual acts

of a cause of action for medical malpractice or allegations of different types of damages

resulting from such acts. Benson’s motion is somewhat like a hybrid special exception

and a no-evidence-motion-for-summary-judgment attacking the lack of expert evidence

in the report of specific elements of a negligence claim. But the motion does not attack

elements of a cause of action. Rather, it attacks the absence of reliable expert evidence

in the expert report of conduct or types of damages, asserting that each is a separate

health care liability claim. It thus appears that Benson attempts to strike from the case

every allegation in Vernon’s petition that does not find support in the expert’s report or

which is contrary to the view of the evidence, such as Vernon’s hospital record, which


Benson v. Vernon                                                                    Page 4
incidentally is a record created by Benson and which Vernon alleges was falsified or

altered. This is not how a medical expert’s report is properly challenged, nor does it

fulfill the purpose the statute was designed to fulfill – to limit frivolous medical

malpractice suits. The trial court recognized this problem. See RR at 23-26.

          Thus, the first question that we should address is whether the motion to dismiss

for the failure to file an expert report in support of a health care liability claim allows

the defendant to break the pleading down into allegations of the individual acts and

types of damages asserting that each act or type of damage is a separate claim and,

therefore, requires a report for each; or whether there is some other grouping of the

alleged acts and injuries that constitute a health care liability claim distinct from the

otherwise minimal allegations necessary for otherwise adequately pleading a cause of

action for medical malpractice.

          The Court, I believe inadvertently, gets drawn into Benson’s tortured analysis.

The Court initially states that in Vernon’s petition there are allegations of negligence

resulting in two injuries: the pneumothorax and asymmetry of her right breast. Maj.

Op., pg. 5. The Court then notes that Benson complains that Vernon’s expert report1

fails

          to address: (1) improper placement and failure to assure proper
          placement of the right breast implant; (2) failure to refer Vernon to a
          respiratory specialist; (3) failure to have Vernon obtain a chest x-ray from
          an urgent care clinic [sic]; (4) failure to identify the cause of swelling and
          asymmetry of the right breast; (5) alteration and fabrication of medical
          records; (6) future pain and mental anguish; (7) future medical expenses;
          (8) past and future physical incapacity, disability, and disfigurement; and

1
    The report is comprised of two documents from the same doctor, which comprise the one report.

Benson v. Vernon                                                                                    Page 5
       (9) lost earnings.

Maj. Op., pgs. 5-6.

       I note that these 9 items correspond to the 11 deficiencies identified in Benson’s

motion to dismiss but they track neither the 13 acts of negligence alleged in the petition,

CR at 4-5, nor the 7 types of damages alleged in the petition, CR at 5-6, to have resulted

from the 13 acts of negligence.

       But after a general statement by the Court that Vernon’s allegations of negligence

resulted in the two identified injuries, without further analysis the Court then proceeds

in a discussion which separates and regroups the allegations in the petition and

summarizes the allegations as four claims that, if determined to be health care liability

claims, must each be the subject of an expert report. Those four claims, in the order

discussed in the Court’s opinion, are: 1. Pneumothorax; 2. Asymmetry of the right

breast; 3. Alteration and fabrication of medical records; and 4. Damages. I will address

the damages discussion first because it, overall, has the least problems.

Damages are not a health care liability claim – but then what are damages?

       In the course of its discussion, the Court appropriately holds that an allegation of

particular damages is not a health care liability claim that requires an expert report,

stating that in Vernon’s expert report she “is not required to prove up Vernon’s

damages.” Maj. Op., pg. 7. I find no error in this discussion.

       Immediately preceding that discussion, however, the Court holds that

asymmetry of the right breast is a health care liability claim that must be addressed in an

expert report. The Court then concludes that, because the report fails “to inform Dr.

Benson v. Vernon                                                                     Page 6
Benson of the specific conduct sued on with respect to asymmetry of the right breast[,]”

that claim must be dismissed. Id.       This implies that the allegations in the petition

regarding the asymmetry of the right breast are, standing alone, allegations of a health

care liability claim that must then be supported by an expert report as to that particular

claim.

         The problem presented is deeper than the Court has analyzed. Is the asymmetry

of the right breast an allegation of an element of negligence, an element of a claim, or is

it simply an allegation of a particular type of injury, i.e., a type of damage, resulting

from other allegations of negligence? Actually, it may be any or none, depending on its

context.

         At least part of the problem with putting this allegation in the proper context is

the legislative effort to have the expert report serve the function of what the petition

should do—namely, inform the health care providers of the reason why they have been

sued.

         In the petition, Vernon alleges as an act of negligence that Benson failed “to

assure proper placement of the right implant at the time of surgery.” CR at 5. But

when closely examined, this allegation is very different from what Benson and the

Court generically refer to as the claim for “asymmetry of the right breast.” Asymmetry

of the right breast, as referred to by Benson and the Court, cannot be a complete

allegation of a cause of action for negligence. Negligence consists of four elements:

duty, breach, proximate cause, consisting of two sub-elements – cause in fact and

foreseeability, and damages, i.e., an injury. See Western Invs., Inc. v. Urena, 162 S.W.3d

Benson v. Vernon                                                                     Page 7
547, 551 (Tex. 2005). Injury is comprised of many categories or types of damages.

       Likewise, “asymmetry of the right breast” cannot be a complete allegation of a

health care liability claim. On its face, it is, at least, a reference to the breach of a duty as

a description of the result of a negligent act. And, at the very least, it is an adequate

reference to the injury as a damage in the category of disfigurement. But other damages

will naturally and normally flow from this conduct and injury, including future surgical

cost to fix the asymmetry and the related pain and suffering from that future surgery.

In this regard, the alleged act of negligence is Benson conducting the surgery when he

failed to possess the requisite skill to properly perform a breast augmentation, in

essence, inadequate skill to assure proper placement of the breast, which is separately

alleged in the petition, CR at 4-5, and the expert report, CR at 59, 66-67, but is not

addressed in the Court’s opinion. I presume asymmetry could also relate to the

allegations in the petition and report that the surgery was performed at an

inappropriate or inadequate medical facility.

Summary

       Thus, I believe Benson and the Court have erroneously focused on an element of

a health care liability claim, in fact, only one aspect of the injury element, the damages

flowing from the claim, and the Court has inexplicably required an expert report on this

specific allegation of a specific type of damages. But otherwise, the Court has properly

held that damages need not be proven up by the expert in the expert report. I believe

the Court’s error is the result of first the parties’, then the trial court’s, and now this

Court’s failure to properly identify what is meant by the legislature’s reference to a

Benson v. Vernon                                                                          Page 8
health care liability claim. The result is that, in regard to this case, Vernon will be

unable to recover some damages that allegedly occurred as the result of allegations of

negligence which Benson did not directly attack in his motion to dismiss. I believe this

results in an erroneous judgment of this Court, and therefore, I must dissent to this

holding.

                                            II

   Many claims under a “good” report on one claim, or many claims require many
                                    reports?

       In this proceeding, another holding of some importance is deciding the issue: to

the extent there are multiple health care liability claims asserted in the petition, does

each health care liability claim asserted in the petition have to be supported by an

expert report? I believe that this is the first time this issue has been so squarely

addressed. The statute does not expressly require it. Rather, a simple reading of the

statute indicates that if a health care liability claim is asserted by the plaintiff, the

plaintiff must then file an expert report as to each physician or health care provider

against whom a claim is asserted. See TEX. CIV. PRAC. & REM. CODE ANN. §§

74.001(a)(13); 74.351(a) (Vernon 2005 & Supp. 2008). It really is not clear from the

statute that the pleading is broken up into each of the various claims and that each and

every claim that is a health care liability claim must then be supported by an expert

report. And of course, failure to file the required report will result in dismissal of the

health care liability claim if it is properly challenged. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b) (Vernon Supp. 2008). Thus, if the Court finds that one health care liability


Benson v. Vernon                                                                    Page 9
claim is not supported by a timely filed expert report, that specific individual

unsupported claim is essentially taken out of the suit by being dismissed. I believe this

is the only logical reading of the statute.

       If every health care liability claim included in a single petition did not have to be

separately supported by a timely filed expert report, one nominal, but technically valid,

claim could hold in court for trial any number of totally bogus, completely frivolous

claims. I do not believe that could possibly be what the legislature intended.

Accordingly, I concur in the judgment to the extent that it implies that for each

separately identifiable and alleged health care liability claim the plaintiff must file an

expert report.

       I recognize that one document can be the required expert report for several

different claims if they are separately and independently supported in the report. Thus,

one document can support many health care liability claims; but every health care

liability claim must be the subject of a timely filed expert report.

Four corners rule? — Not really

       Part of the confusion with regard to the need for and the adequacy of a separate

expert report comes from the reference to the so-called “four-corners-rule.” The Court

indicates that we do not look beyond the four corners of the expert report to see if it is

adequate. If this were actually a proper characterization of what we do, a single report

on a single claim would necessarily support all the claims in the petition even if the

expert report did not address a particular claim. In fact, a perfectly adequate expert

report on a health care liability claim not even alleged would be adequate for the four

Benson v. Vernon                                                                     Page 10
corners rule to hold the health care provider in court.

        To avoid this erroneous construct, we actually first look to the petition to see

what health care liability claims are alleged and then look to the expert report to see if

the report, which may even be in more than one document, is an adequate expert report

with regard to each claim alleged in the petition. Thus, at the very least, we use an eight

corners rule. We look at two documents; first to the petition for identification of each

health care liability claim and then to the expert report to see if the report is adequate to

comply with the requirements of an expert report regarding each health care liability

claim alleged in the petition.

Four more corners?

        But we really cannot stop with an examination of the petition and the expert

report. We must also look at the motion to dismiss. 2 If the motion to dismiss does not

move to dismiss one of the individual/multiple health care liability claims raised in the

petition, it does not matter that there is no expert report in support of that claim. If a

health care liability claim is not attacked by a motion to dismiss because no expert

report is filed as to a particular claim, it is irrelevant that no expert report was filed with

regard to that claim. Thus, to successfully have a particular health care liability claim

dismissed, the specific claim which is omitted must be identified in the motion to

dismiss.

        Therefore, we are actually looking to at least three different documents, twelve


2  We also cannot overlook the objections asserting deficiencies in the expert report. It is entirely
possible, as in this case, that the detailed nature of the objections reveals the report may be deficient but
does not totally omit any claim.

Benson v. Vernon                                                                                     Page 11
corners, to see if a health care liability claim must be dismissed because it is not

properly supported by an expert report: 1) the petition; 2) the motion to dismiss; and 3)

the expert report. Thus, I believe the references to the four corners rule and purported

limitation of our review to the expert report have unwittingly caused confusion in how

to conduct the complete analysis of an expert report for a health care liability claim.

                                             III

                                     Medical Records

       Another holding of the Court is that allegations of alteration or falsification of the

medical records of a patient is not a health care liability claim.

       With this holding I cannot agree.

       There must be a standard in the medical industry for the extent and nature of

what gets entered by the physician or health care provider in the medical records of a

patient. All treatment of a patient in the future is based upon the patient’s medical

history, including the record of treatment, as recorded in the patient’s medical records.

If another physician, such as a specialist, must be consulted for some reason, or if a

physician is relieved of his duties to a patient and another assumes treatment, the other

physician or health care provider must be able to rely on the entries in the patient’s

medical records as being complete and accurate. I would be very surprised if there

were no accepted standards for the entries to be made in the medical records of a

patient. Thus, alteration or falsification of medical records would be a health care

liability claim as an “other claimed departure from accepted standards of medical care,

or health care, or safety or professional or administrative services directly related to

Benson v. Vernon                                                                      Page 12
health care…” TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a) (13) (Vernon 2005). Thus,

it initially appears that because the expert report in this proceeding does not address

the applicable standard related to the preparation of medical records, the breach of that

standard, and the general connection to the injury caused as a result of the breach, I

would be compelled to dismiss this claim of Vernon’s.

       If, however, we turn back to the motion to dismiss, Benson did not mention this

claim in the motion, except in the final summary paragraph, the prayer, of the motion to

dismiss (paragraph 63.f). CR at 96. Given the need to know with some degree of

certainty both what the claims brought by the plaintiff are, as well as what claims the

medical health care provider seeks to have dismissed, and that in this case Benson

attacks the expert report as being conclusory and providing inadequate notice, I cannot

hold that the trial court abused its discretion if it determined that the motion to dismiss

was not sufficiently specific to seek dismissal of this claim. In this conclusion, I am

mindful that the related allegation which was only listed like other elements in the

motion to dismiss but labeled as a claim, alone, is not actually a complete health care

liability claim.

                                            IV

                                Entitled to an Extension?

       The question thus becomes, if the health care provider moved for dismissal of a

specific claim pled in the petition because part of the claim was not directly addressed

in the expert report that was timely received, does the plaintiff nevertheless get the

opportunity to cure the deficiency? If we look at the document as an expert report for

Benson v. Vernon                                                                    Page 13
each separate claim, then necessarily, if a document does not address any element of a

particular claim, no expert report has been filed in support of the claim and, therefore,

the claim not addressed in the expert report must be dismissed. The report as to that

particular claim is not merely deficient. The expert report as to that particular claim

does not exist. Thus, it is no report at all. See Lewis v. Funderburk, 253 S.W.3d 204, 211

(Tex. 2008) (Willett, J., concurring); Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex. 2007)

(Willett, J., concurring).

       In this proceeding, the Court has determined that Vernon does not get the

opportunity to cure what I believe are only deficiencies, not omission of claims, in the

expert report. The Court holds that there was no report at all as to the claim for

asymmetry of the right breast and that the claim that the medical records were altered

or falsified was not even a medical health care liability claim. As stated above, I believe

the Court errs in both of these determinations.

Mulligan due to inadequate ability to map the claims?

       In this proceeding, the trial court was clearly concerned about the plaintiff being

stripped of her medical malpractice claims by a procedure being used like a hybrid

special appearance and no-evidence-motion-for-summary-judgment. RR at 23-26. I

agree with the trial court.

       Based upon my review of the record, I would give the litigants the judicial

equivalent of a mulligan—a do over. The petition does a relatively poor job of

organizing the facts or allegations as complete health care liability claims. Thus, it is not

surprising that the expert report was somewhat generic and general. The petition and

Benson v. Vernon                                                                      Page 14
expert report were, however, specific enough for Benson to make 19 pages of detailed

objections about the alleged deficiencies in the report. And the motion to dismiss

should fail because rather than attacking whole claims, it attacked sub-elements of the

various elements of a health care liability claim. Thus, the motion attempted to slice

and dice the claim into the minute sub-parts and resulted in overcompensating for the

general nature of the pleadings and expert report.

       There was a general lack of proper focus in all 12 corners under review on what

health care liability claims were being asserted and properly attacked for dismissal.

Thus, I would affirm the trial court’s order to the extent it overruled the motion to

dismiss but reverse the trial court’s order to the extent it overruled the objections to the

adequacy of the expert report. I would remand this proceeding to the trial court and

restart the timetable for filing the expert report/objections/motion-to-dismiss. This

would allow the parties the opportunity to clean up the petition with a pleading and an

expert report in which each separately identifiable health care liability claim, which

should include the identification of the applicable duty (the standard of care), the

breach of the duty, and generally the causal connection between that breach and the

injury that resulted from the breach, could be specifically identified or labeled by the

plaintiff, Vernon, and then supported in an expert report. The defendant, Benson, could

then file objections to the deficiencies in the report or a motion to dismiss focused on an

analysis of the claims omitted from the expert report supporting each health care

liability claim asserted by the plaintiff.

       Based on the information currently available to me in this record, I could not

Benson v. Vernon                                                                     Page 15
hold that the trial court abused its discretion by refusing to dismiss any claim. And I

would be compelled to hold that the expert report, while somewhat loose, touches on

some of the aspects of an expert report of each health care liability claim asserted, but is

otherwise inadequate to adequately apprise the doctor of the alleged standards that

were breached and how that breach proximately caused an injury. In this regard, I

again note that the pleadings and the expert report were sufficiently specific for Benson

to be able to frame objections regarding the deficiencies in the expert report. Vernon

should, therefore, be granted an extension of 30 days from the date the mandate in this

appeal is issued to amend the expert report.

       In the alternative, given that in this proceeding it is almost impossible under the

current state of the pleadings to map the elements for each claim, find the support for

each claim in the expert report, or find a clear challenge to a claim in the motion to

dismiss, as opposed to the attack on the sub-elements of the claim, I would, in the

interest of justice, require that the parties start the process over.

       Because the Court fails to so hold, I respectfully dissent except as otherwise

noted herein.



                                            TOM GRAY
                                            Chief Justice

Concurring and Dissenting opinion delivered and filed August 12, 2009
Publish




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