                                                                     ACCEPTED
                                                                03-14-00717-CV
                                                                        3677007
                                                       THIRD COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                                           1/7/2015 10:35:57 AM
                                                               JEFFREY D. KYLE
                                                                          CLERK
                NO. 03-14-00717-CV

                                                 FILED IN
                                          3rd COURT OF APPEALS
        IN THE COURT OF APPEALS FOR    THE AUSTIN, TEXAS
             THIRD DISTRICT OF TEXAS      1/7/2015 10:35:57 AM
                                            JEFFREY D. KYLE
                                                  Clerk
  VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC

                               Appellants

                        v.

              NANCY JO RODRIGUEZ

                                Appellee


ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT
             TRAVIS COUNTY, TEXAS


            BRIEF FOR APPELLANTS


                      Chris Knudsen
                      Texas Bar No. 24041268
                      SERPE JONES ANDREWS
                      CALLENDER & BELL, PLLC
                      2929 Allen Parkway, Suite 1600
                      Houston, Texas 77019
                      Telephone: (713) 452-4400
                      Facsimile: (713) 452-4499
                      Email: cknudsen@serpejones.com

                      Counsel for Appellants Vivek Goswami,
                      M.D. and Austin Heart, PLLC


         ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellants provide the following complete list of all parties and counsel to the trial

court’s Order that forms the basis of this appeal.

      Trial and Appellate Counsel for Appellants Vivek Goswami, M.D. and
      Austin Heart, PLLC:

      Chris Knudsen
      Texas Bar No. 24041268
      Nicole Andrews
      Texas Bar No. 00792335
      SERPE JONES ANDREWS
      CALLENDER & BELL, PLLC
      2929 Allen Parkway, Suite 1600
      Houston, Texas 77019
      Telephone: (713) 452-4400
      Facsimile: (713) 452-4499
      Emails: cknudsen@serpejones.com
              nandrews@serpejones.com

      Trial Counsel for Appellee Nancy Jo Rodriguez:

      L. Todd Kelly
      Texas Bar No. 24035049
      The Carlson Law Firm
      11606 N. IH-35
      Austin, Texas 78753
      Telephone: (512) 346-5688
      Facsimile: (512) 719-4362
      Email: TKelly@carlsonattorneys.com




                                          ii
Trial Counsel for Defendants The Walgreen’s Co. and Sarah Elizabeth
McGuire (not parties to this appeal):

Cynthia Day Grimes
State Bar No. 11436600
STRASBURGER & PRICE, LLP
2301 Broadway
San Antonio, Texas 78215-1157
Telephone: (210) 250-6000
Facsimile: (210) 250-6100
Email: Cynthia.Grimes@strasburger.com

Trial Counsel for Defendant St. David’s Health Care Partnership (not a
party to this appeal):

Missy Atwood
State Bar No. 01428020
GERMER BEAMAN & BROWN PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
Telephone: (512) 472-0288
Facsimile: (512) 472-0721
Email: matwood@germer-austin.com




                               iii
                                      TABLE OF CONTENTS

                                                                                                          Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE .................................................................................. 2

ISSUES PRESENTED............................................................................................... 2

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 6

ARGUMENT & AUTHORITY ................................................................................ 7

        I.       STANDARD OF REVIEW .......................................................................... 7

        II.      THE TRIAL COURT ABUSED ITS DISCRETION WHEN
                 FINDING DR. BREALL’S REPORT SATISFIED THE
                 REQUIREMENTS OF CHAPTER 74 AND DENYING
                 APPELLANTS’ MOTION TO DISMISS. ....................................................... 8

                 A.       Legislative Intent Of Chapter 74................................................. 8

                 B.       Chapter 74’s Expert Report Requirements ................................. 9

                 C.       Dr. Breall’s Report Does Not Constitute A
                          Good Faith Effort to Comply With Section 74.351 .................. 11

                          1.      Dr. Breall’s report provides no facts to
                                  support his conclusions and thus does not
                                  constitute an expert report under Chapter 74 ................. 12

                          2.      Dr. Breall fails to identify the standard of
                                  care applicable to Appellants .......................................... 16


                                                       iv
                           3.        Dr. Breall fails to explain how Dr. Goswami
                                     and Austin Heart breached the applicable
                                     standard of care ............................................................... 19

                           4.        Dr. Breall’s report fails to explain how
                                     an alleged breach in the standard of care
                                     by Dr. Goswami or Austin Heart caused
                                     Appellee’s injuries .......................................................... 22

                 D.        By Serving A Report Like Dr. Breall’s, Appellee
                           Effectively Negates The Purpose Of Chapter 74’s
                           Expert Report Requirement ...................................................... 26

CONCLUSION & PRAYER ................................................................................... 26

CERTIFICATE OF COMPLIANCE ....................................................................... 28

CERTIFICATE OF SERVICE ................................................................................ 29

APPENDIX

        Trial Court Orders........................................................................................... A

        Cases ............................................................................................................... B




                                                             v
                                   TABLE OF AUTHORITIES

Cases:
American Transitional Care Centers of Texas, Inc. v. Palacios,
 46 S.W.3d 873 (Tex. 2001) ........................................................................... passim
Austin Heart, P.A. v. Webb,
 228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ............................................10
Bogar v. Esparza,
 257 S.W.3d 354 (Tex. App.—Austin 2008, no pet.) ..............................................8
Bowie Memorial Hosp. v. Wright,
 79 S.W.3d 48 (Tex. 2002) ........................................................................ 10, 13, 17
CHCA Mainland, L.P. v. Burkhalter,
 227 S.W.3d 221 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ........................18
Earle v. Ratliff,
 998 S.W.2d 882 (Tex. 1999) .................................................................................10
Fung v. Fischer,
 365 S.W.3d 507(Tex. App.—Austin 2012, no pet.), ............................................24
Gray v. CHCA Bayshore L.P.,
 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................10
Harris County Hospital District. v. Garrett,
 232 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ....................7, 16
Hebert v. Hopkins,
 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) .................................... passim
Jelinek v. Casas,
  328 S.W.3d 526 (Tex. 2010) ......................................................................... passim
Jernigan v. Langley,
  195 S.W.3d 91 (Tex. 2006) .....................................................................................9
Kocurek v. Colby,
 No. 03-13-00057-CV, 2014 WL 4179454 –5
 (Tex. App.—Austin Aug. 22, 2014, no pet.) ........................................................23

                                                       vi
Kuykendall v. Dragun,
 No. 11-05-00230-CV, 2006 WL 728068
 (Tex. App.—Eastland Mar. 23, 2006, pet. denied) ...............................................14
Regent Care Center of San Antonio II, Limited Partnership v. Hargrave,
 300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................25
Shenoy v. Jean,
 No. 01-10-01116-CV, 2011 WL 6938538
 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, ..................................................13
Smith v. Wilson,
 368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) .................................... passim
Strom v. Memorial Hermann Hospital System,
  110 S.W.3d 216 .............................................................................................. 16, 18
Taylor v. Christus Spohn Health System Corp.,
 169 S.W.3d 241 (Tex. App.—Corpus Christi 2004, no pet.) ........................ 18, 19
Taylor v. Fossett,
 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...................................... 13, 21
Tenet Hospitals Ltd. v. De La Riva,
 351 S.W.3d 398 (Tex. App.—El Paso 2011, no pet.) ...........................................18
W.B.M. Management Co. v. Flores,
 No. 07-14-00008-CV, 2014 WL 1691362 –6
 (Tex. App.—Amarillo Apr. 25, 2014, no pet.) .............................................. 13, 21
Walker v. Packer,
 827 S.W.2d 833 (Tex. 1992) ...................................................................................7
Wood v. Tice,
 988 S.W.2d 829 (Tex. App.—San Antonio 1999, pet. denied) ..............................8


Statutes:

TEX. CIV. PRAC. & REM. CODE § 74.351.......................................................... passim
TEX. CIV. PRAC. & REM. CODE § 74.351(a) .........................................................9, 19



                                                         vii
TEX. CIV. PRAC. & REM. CODE § 74.351(b) ...................................................... 1, 7, 9
TEX. CIV. PRAC. & REM. CODE § 74.351(l) ................................................................9
TEX. CIV. PRAC. & REM. CODE § 74.351(r)................................................................9
TEX. REV. CIV. STAT. ANN. art. 4590i ..................................................................8, 26




                                                   viii
                              NO. 03-14-00717-CV


                   IN THE COURT OF APPEALS FOR THE
                        THIRD DISTRICT OF TEXAS


             VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC

                                                Appellants

                                        v.

                           NANCY JO RODRIGUEZ

                                                 Appellee


           ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT
                        TRAVIS COUNTY, TEXAS


                         BRIEF FOR APPELLANTS


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant Vivek Goswami, M.D. and Austin Heart, PLLC (“Appellants”)

file this appeal from an order denying their motion to dismiss pursuant to section

74.351(b) of the Texas Civil Practices and Remedies Code in Cause No. D-1-GN-

14-000903; Nancy Jo Rodriguez v. The Walgreen Co., et al., in the 419th Judicial

District Court of Travis County, Texas, before the Honorable Visiting Judge Gus J.

Strauss.
                          STATEMENT OF THE CASE

      Appellee Nancy Jo Rodriguez (“Appellee”) filed a health care liability claim

against several defendants, including Appellants, based on Appellee’s taking of a

medication known as Pradaxa. (CR 4–12). With her petition, Appellee served a

report authored by Jeffrey A. Breall, M.D., Ph.D. (“Dr. Breall”). (CR 43–44).

Appellants objected to Dr. Breall’s report shortly thereafter. (CR 119–52). Over

the next three months, Appellee did not serve any new or amended reports. After

the expiration of the statutory deadline to serve expert reports under Chapter 74,

Appellants moved to dismiss Appellee’s claim. (CR 189–95). However, the trial

court entered an order finding that Dr. Breall’s report was adequate and denying

Appellants’ motion to dismiss. (CR 344–45, 365–66). Appellants subsequently

filed this interlocutory appeal from that order. (CR 346–50).

                               ISSUES PRESENTED

      1.     Whether the trial court abused its discretion when holding Dr. Breall’s

report was adequate under Chapter 74 despite Dr. Breall only offering conclusory

opinions that did not link the facts to his conclusions.

      2.     Whether the trial court abused its discretion in denying Appellants’

motion to dismiss pursuant to section 74.351 of the Texas Civil Practices and

Remedies Code.




                                           2
                            STATEMENT OF FACTS

      In 2012, Appellee was a patient of Austin Heart, PLLC (“Austin Heart”)

where she received treatment for an abnormal sinus rhythm in her heart. (CR 6).

As a patient of Austin Heart, Appellee was treated by David Kessler, M.D. (“Dr.

Kessler”) and Vivek Goswami, M.D. (“Dr. Goswami”), both of whom are

cardiologists. (Id.). In her petition, Appellee states that, on March 27, 2012, Dr.

Kessler “orders that [Appellee] stop her use of the drug Pradaxa because she is

maintaining her sinus rhythm without it.” (Id.). However, Appellee alleges “this

order to stop the medication was not followed by Dr. Goswami.” (Id.). Appellee

nonetheless admits she continued to refill her prescription for Pradaxa despite Dr.

Kessler’s order to stop. (Id.). Appellee claims her continued use of Pradaxa caused

her hospitalization on July 2, 2012. (Id.).

      On March 26, 2014, Appellee filed suit against The Walgreen Company,

Sara E. McGuire, St. David’s Health Care Partnership, Austin Heart, Dr. Kessler,

and Dr. Goswami (collectively “Defendants”). (CR 4–5). With her petition,

Appellee served Defendants with a curriculum vitae and report from Jeffrey Chad

Hardy, Pharm.D., M.S. dated February 21, 2014 (“Hardy’s report”) and a

curriculum vitae and report from Jeffrey A. Breall, M.D., Ph.D. dated March 18,

2014 (“Dr. Breall’s report”). (CR 13–44). There is no dispute that Hardy’s report




                                              3
does not apply to Appellants. Rather, only Dr. Breall’s report references

Appellants.

        As addressed more fully below, Dr. Breall’s report fails to provide any facts

surrounding the care and treatment provided by Dr. Goswami or Austin Heart. (CR

43–44). In fact, Dr. Breall’s report fails to even identify which medical records he

reviewed to support the opinions in his report. (Id.). If Dr. Breall provided the facts

from the relevant records, Dr. Breall’s report would have informed the trial court

that, prior to Dr. Kessler’s order to stop taking Pradaxa on March 27, 2012,

Appellee already had a prescription for Pradaxa allowing for five refills. (CR 330–

31). Specifically, Appellee was prescribed Pradaxa on February 10, 2012, and she

filled the prescription on February 14, 2012. (CR 330). On March 16, 2012,

Walgreen’s requested five refills of Pradaxa. (CR 331). On March 27, 2012, Dr.

Kessler ordered Appellee to stop taking the Pradaxa. (CR 6). Yet, on May 4, 2012,

Appellee refilled her prescription using the authority provided to Walgreen’s on

March 16, 2012. (CR 332).1 On June 16, 2012, Appellee again refilled her

prescription using the authority provided to Walgreen’s on March 16, 2012. (CR

333).

        A review of these records would have also informed the trial court that

Appellee used this prescription that pre-dated Dr. Kessler’s order to obtain refills

1
  This Audit / Board of Pharmacy Inspection Report shows the “Original Date” for the
prescription was 3/16/2012 16:04. (Id.).

                                          4
after Dr. Kessler’s March 27, 2012 order without any communication with Dr.

Goswami or Austin Heart. (CR 332–33). Rather than provide these facts from the

records, Dr. Breall chose not to provide any facts.

       On May 12, 2014, Appellants objected to Dr. Breall’s report. (CR 119–27).

In their objections, Appellants specified that Dr. Breall failed to identify the

standard of care applicable to each Appellant, failed to identify the alleged acts or

omissions by each Appellant that amounted to a breach in the standard of care, and

failed to explain the causal relationship between each alleged breach and the

injuries alleged. (Id.). Despite having knowledge of these objections since May 12,

2014, Appellee failed to amend or supplement Dr. Breall’s report over the next

three months.

       After the deadline for serving expert reports expired on August 19, 2014,

Appellants filed their motion to dismiss. (CR 189–99).2 On October 20, 2014,

Appellee filed her response to Appellants’ motion to dismiss arguing that Dr.

Breall’s report was sufficient and even moved for sanctions. (CR 297–306). On

October 29, 2014, the trial court held a hearing on Appellants’ motion to dismiss.

(RR 1–48).




2
  Since Dr. Breall’s report offered no criticisms of Dr. Kessler, Dr. Kessler also filed a motion to
dismiss. (CR 171–80). Rather than face a hearing on Dr. Kessler’s motion to dismiss and motion
for attorneys’ fees, Appellee non-suited Dr. Kessler. (CR 200–02).

                                                 5
      On October 30, 2014, the Honorable Visiting Judge Gus J. Strauss issued a

letter opinion finding “that the report of Dr. Breall pertaining to Dr. Goswami and

Austin Heart is adequate under [Chapter] 74 and the plaintiff’s claims will proceed.

No sanctions [or] attorney’s fees will be ordered.” (Appx. A; CR 344–45). In this

same order, the trial court granted Walgreen’s and Sarah E. McGuire’s motion to

dismiss. (Id.). On December 4, 2014, the trial court signed a more formal order

denying Appellants’ motion to dismiss under section 74.351 of the Texas Civil

Practices and Remedies Code. (Appx. A; CR 365–66). On November 17, 2014,

Appellants timed filed their notice of appeal and this interlocutory appeal ensued.

(CR 346–52).

                      SUMMARY OF THE ARGUMENT

      The trial court abused its discretion in holding that Dr. Breall’s report was

adequate under Chapter 74 and in denying Appellants’ motion to dismiss under

Chapter 74. In his report, Dr. Breall fails to provide any of the facts surrounding

Appellee’s care and treatment in this case, and Dr. Breall makes no attempt to link

the facts to his conclusions on the elements of a Chapter 74 expert report. The

Texas Supreme Court holds that, when a report lacks any explanation linking the

expert’s conclusion to the relevant facts, a trial court abuses its discretion if it

denies the defendant’s motion to dismiss. Additionally, Dr. Breall failed to identify

the standard of care applicable to each Appellant, failed to explain how each


                                         6
Appellant breached the standard of care, and failed to explain the causal link

between each Appellant’s alleged breach and the injuries alleged. Accordingly, Dr.

Breall’s report did not constitute a good faith effort to comply with the

requirements of section 74.351, and the trial court erred in denying Appellants’

motion to dismiss.

                          ARGUMENT & AUTHORITY

I.    STANDARD OF REVIEW

      A trial court’s ruling on a motion to dismiss for failure to comply with

section 74.351(b) of the Texas Civil Practice and Remedies Code is subject to

review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However, if an expert report contains

only conclusions about the statutory elements in section 74.351, the trial court has

“no discretion but to conclude ... that the report does not represent a good-faith

effort” to satisfy the statute. Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. App.—

Austin 2012, no pet.) (citing Palacios, 46 S.W.3d at 877, 880). Also, an incorrect

construction of the law or a misapplication of the law to undisputed facts is an

abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992);

Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston

[1st Dist.] 2007, no pet.).




                                         7
II.   THE TRIAL COURT ABUSED ITS DISCRETION WHEN FINDING DR.
      BREALL’S REPORT SATISFIED THE REQUIREMENTS OF CHAPTER 74 AND
      DENYING APPELLANTS’ MOTION TO DISMISS.

      A.     Legislative Intent Of Chapter 74.

      The Legislature enacted Article 4590i (now codified in Chapter 74),

including its expert reporting requirement, for the purpose of deterring frivolous

lawsuits against health care providers. TEX. REV. CIV. STAT. ANN. art. 4590i;

Palacios, 46 S.W.3d at 879 (citing Wood v. Tice, 988 S.W.2d 829, 830 (Tex.

App.—San Antonio 1999, pet. denied)). “The Legislature has determined that

failing to timely file an expert report, or filing a report that does not evidence a

good-faith effort to comply with the definition of an expert report, means that the

claim is either frivolous, or at best has been brought prematurely. This is exactly

the type of conduct for which sanctions are appropriate.” Bogar v. Esparza, 257

S.W.3d 354, 371 (Tex. App.—Austin 2008, no pet.).

      As evidenced by this case, the purpose of deterring frivolous lawsuits is

effectively negated when a claimant serves an expert report that conceals the facts

surrounding the care in question and only provides vague conclusions on certain

elements of a Chapter 74 expert report. Appellee should not be entitled to pursue a

frivolous (or at best premature) claim by serving such a report.




                                          8
      B.     Chapter 74’s Expert Report Requirements.

      Chapter 74 requires that, when a plaintiff asserts a health care liability claim,

she must serve each defendant physician and health care provider with an expert

report along with the expert’s curriculum vitae within 120 days of filing suit. See

TEX. CIV. PRAC. & REM. CODE § 74.351(a)-(c). Chapter 74 further provides that a

failure to serve a report within 120 days mandates that the trial court dismiss the

case and award attorneys’ fees and costs. Id at § 74.351(b).

      In order to comply with Chapter 74, an expert report must represent an

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

Chapter 74. TEX. CIV. PRAC. REM. CODE § 74.351(l). The good faith effort standard

requires the report to provide an adequate analysis for each of the following

elements of a health care liability claim: (1) the applicable standard of care; (2) the

manner in which the care rendered by the physician or health care provider failed

to meet the standard; and (3) the causal relationship between that failure and the

injury, harm or damages claimed. Id. at § 74.351(r)(6); Palacios, 46 S.W.3d at 879.

The Texas Supreme Court holds that a report will not constitute a good faith effort

if it omits any of these statutory requirements. Jernigan v. Langley, 195 S.W.3d 91,

94 (Tex. 2006). Further, in order to constitute a good faith effort, the report must,

at a minimum: (1) inform the defendant of the specific conduct called into




                                          9
question; and (2) provide a basis for the trial court to conclude the claims have

merit. Palacios, 46 S.W.3d at 879.

      The Texas Supreme Court also holds that, while a report need not marshal

all of the plaintiff’s proof, it must include the expert’s opinion on each of the

elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot

merely state the expert’s conclusions about the statutory elements. Id. at 879.

“Rather, the expert must explain the basis of his statements to link his conclusions

to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting

Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). It is not enough that the expert

report provides “insight” about the plaintiff’s claims. Id. “A report that merely

states the expert’s conclusions about the standard or care, breach, and causation

does not fulfill the two purposes of a good-faith effort.” Hebert v. Hopkins, 395

S.W.3d 884, 890 (Tex. App.—Austin 2013, no pet.) (quoting Jelinek, 328 S.W.3d

at 539).

      Importantly, the only information relevant to determining whether a report

complies with the statute is “within the four corners of the document.” Palacios, 46

S.W.3d at 878. “This requirement precludes a court from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.”

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no

pet.) (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189


                                        10
S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open.” Hebert, 395

S.W.3d at 890.

      C.    Dr. Breall’s Report Does Not Constitute A Good Faith Effort to
            Comply With Section 74.351.

      For ease of reference, Appellants provide below the paragraphs from Dr.

Breall’s report containing his opinions in this case. These paragraphs are the only

ones from Dr. Breall’s report addressing Appellants:

      In my opinion the care and treatment provided to Nancy Jo Rodriguez
      by Austin Heart fell below the accepted standards of care in the
      following particulars:

      Despite Dr. David Kessler, one of her cardiologists from Austin
      Heart, requesting that the Pradaxa be discontinued (in this patient
      who, at best, has bipolar disorder and at times was confused, this was
      a reasonable request), Pradaxa therapy nevertheless was continued
      after her acute hospitalization. This request to stop the medication was
      not appreciated by her primary cardiologist, Dr. Vivek Goswami (who
      was in the same group as Dr. Kessler). Furthermore, Ms. Rodriguez
      appeared to be obtaining refills for this medication authorized by
      nurses and staff of this same heart group who recommended
      discontinuing this medication (Austin Heart). The standard of care
      would have been to follow the orders of Dr. Kessler to stop the
      administration of Pradaxa.

      Failure to discontinue the use of Pradaxa was a direct cause of her
      subsequent acute admission to the hospital with hypotension, acute
      kidney injury and apparent gastrointestinal bleeding – known side
      effects of the over-use of Pradaxa. Ms. Rodriquez’s entire
      hospitalization was attributable to the failure to stop Pradaxa therapy
      as ordered by Dr. Kessler. More likely than not, had the Pradaxa

                                        11
      medication been discontinued as requested, Ms. Rodriguez’s
      hospitalization would never have needed to take place.

      I hold these opinions to a reasonable degree of medical certainty.
      They are based upon my education, training and experience as well as
      the records which I have reviewed.

(CR 43–44). As explained herein, the report fails to satisfy any of the elements of a

Chapter 74 expert report as to Dr. Goswami or Austin Heart and does not

constitute an expert report under Chapter 74.

             1.     Dr. Breall’s report provides no facts to support his
                    conclusions and thus does not constitute an expert report
                    under Chapter 74.

      Before addressing Dr. Breall’s specific failures to satisfy the statutory

elements of a Chapter 74 expert report, it is important to note that Dr. Breall’s

report provides absolutely no factual background regarding the care and treatment

in question. (CR 43–44). In fact, Dr. Breall’s report fails to even identify which

records he reviewed to support the opinions in his report. (Id.). It is well

established that an expert must link his conclusions to the facts in order satisfy

Chapter 74’s expert report requirement. Most recently, the Texas Supreme Court

held in Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010), when the report in question

lacked any explanation linking the expert’s conclusion to the relevant facts, the

trial court abused its discretion in denying the defendant’s motion to dismiss and

the court of appeals erred by affirming that ruling. Id. at 540 (citing Bowie Mem’l,

79 S.W.3d at 52).

                                         12
      Several Texas appellate courts have reached the same conclusion. The

appellate courts recognize that an expert’s failure to provide any facts to support

his or her conclusions on standard of care, breach, and causation prevents the trial

court from concluding the plaintiff’s claims have merit. See Taylor v. Fossett, 320

S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding trial court abused its

discretion in denying physician’s motion to dismiss since expert report provided

only conclusory opinions without supporting facts); W.B.M. Mgmt. Co. v. Flores,

No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—Amarillo Apr. 25,

2014, no pet.) (holding that expert report was not a good faith effort to provide a

fair summary of his opinions and warranted dismissal since expert failed to provide

facts to support his conclusion); Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL

6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (holding

that “an expert report that merely asserts that a defendant physician’s breach

caused the plaintiff’s injury without providing a factual basis does not provide the

trial court with the information necessary to evaluate the merits of the plaintiff’s

claim.”).

      The failure to set forth facts supporting an expert’s opinions on the standard

of care, breach, and causation is not an argument based on “semantics.”

Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—




                                        13
Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining

whether the plaintiff’s claims have merit. Id.

      For instance, in Kuykendall v. Dragun, the expert’s report stated that the

plaintiff suffered peripheral nerve damage in a surgery performed by several

physicians and indicated that the literature provided this type of injury was

typically caused by failure to properly pad self-retaining retractors, improperly

positioning the patient, or leaning on the patient. Id. The expert then opined that

these were the most likely causes of the plaintiff’s injuries. However, the report

failed to identify any facts supporting the conclusion. The report did not state the

defendant physician used a self-retaining retractor during the procedure, and the

report did not even identify the types of procedures carried out by the defendant

physician. The court of appeals held that the expert’s failure to link these facts to

his conclusions justified the trial court’s dismissal under Chapter 74. Id. In

reaching this conclusion, the trial court found the need for this specific information

in the report is not mere “semantics.” Id. Rather, this information is “vital” when

assessing whether the defendant breached the standard of care. Id.

      Similarly, Dr. Breall leaves out key facts supporting his conclusions. In fact,

Dr. Breall leaves out any facts concerning Appellee’s care and treatment.

Appellee’s malpractice action is based on her continued use of Pradaxa after her

treating cardiologist, Dr. Kessler, ordered her to stop taking this medication (CR


                                         14
6). Yet, Dr. Breall’s report provides absolutely no facts about Dr. Kessler’s order

to stop Pradaxa; the date of the order; to whom the order was communicated;

whether Dr. Goswami or Austin Heart treated, or even had contact with, Appellee

after Dr. Kessler’s order; the prescription used by Appellee after Dr. Kessler’s

order to stop; the circumstances in which Appellee continued to refill her

prescription and continued to use Pradaxa; and many other relevant facts. Rather,

Dr. Breall simply offers conclusory opinions about the standard of care, breach,

and causation.

       It is evident Dr. Breall chose not to include relevant facts since they

obviously did not support the opinions in his report. After all, the medical records

reflect there was no interaction between Appellants and Appellee after Dr.

Kessler’s order to stop taking Pradaxa, and Appellee continued to use a

prescription with five remaining refills that pre-dated Dr. Kessler’s order to stop

taking Pradaxa. Dr. Breall’s report is silent on these facts (or any facts for that

matter) because they do not support his conclusions.3 Since Dr. Breall failed to

provide any facts to support his conclusions, his report did not constitute a good

faith effort to comply with section 74.351 of the Texas Civil Practices and

Remedies Code. Given the lack of facts to support Dr. Breall’s conclusion, the trial


3
  Appellants include these facts not for purposes of determining the sufficiency of Dr. Breall’s
report but to illustrate why an expert is required to provide factual support so the trial court may
assess whether the plaintiff’s claims have merit.

                                                15
court abused its discretion in finding the report was sufficient. See Smith, 368

S.W.3d at 577.4 As a result, Appellants request that the Court reverse the trial

court’s order.

               2.      Dr. Breall fails to identify the standard of care applicable to
                       Appellants.

       In addition to Dr. Breall’s general failure to provide any facts supporting his

conclusions, Dr. Breall also failed to make a good faith effort to comply with

section 74.351’s requirements. In his report, Dr. Breall fails to identify the standard

of care applicable to Appellants. The standard of care for a health care provider or

a physician is what an ordinarily prudent health care provider or physician would

do under the same or similar circumstances. See Strom v. Mem’l Hermann Hosp.

Sys., 110 S.W.3d 216, 222 (Tex. App—Houston [1st Dist.] 2003, pet. denied).

Identifying the standard of care is “critical” because “[w]hether a defendant

breached his or her duty to a patient cannot be determined absent specific

information about what the defendant should have done differently.” Palacios, 46

S.W.3d at 880. From Dr. Breall’s report, Appellants cannot determine what,

specifically, they should have done differently in their care and treatment of

Appellee.


4
   Also, without the relevant facts, the trial court either misapplied the law regarding the
sufficiency of expert reports or inferred additional underlying facts to fill in gaps that the report
itself left open. This amounts to an abuse of discretion. See Garrett, 232 S.W.3d at 176; Hebert,
395 S.W.3d at 890.

                                                16
      As explained above, a good faith report must, at a very minimum: (1) inform

the defendant of the specific conduct called into question; and (2) provide a basis

for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A

report cannot merely state the expert’s conclusions about the statutory elements. Id.

at 879. “Rather, the expert must explain the basis of his statements to link his

conclusions to the facts.” Bowie Mem’l, 79 S.W.3d at 52. As this Court recognizes,

“[a] report that merely states the expert’s conclusions about the standard or care,

breach, and causation does not fulfill the two purposes of a good-faith effort.”

Hebert, 395 S.W.3d at 890.

      In his report, Dr. Breall’s provides only a single, conclusory statement

setting forth his opinion on the standard of care: “The standard of care would have

been to follow the orders of Dr. Kessler to stop the administration of Pradaxa.”

(CR 44). However, Dr. Breall fails to identify the standard of care applicable to

Appellants given the factual circumstances of this case. As provided above, Dr.

Breall fails to set forth any facts indicating that Dr. Kessler’s order was

communicated to anyone except Appellee. (Recall, Appellee admits that Dr.

Kessler “orders that Nancy stop her use of the drug Pradaxa”). (CR 6). In fact, Dr.

Breall’s own report suggests Dr. Kessler did not communicate his order to Dr.

Goswami by stating Dr. Goswami failed to appreciate the order. (CR 44). Dr.




                                         17
Breall’s report fails to explain the standard of care when an order to stop a

medication is not communicated to other physicians and health care providers.

      Moreover, since Dr. Breall failed to describe the factual circumstances

surrounding the prescription and administration of Pradaxa, he could not have

identified the applicable standard of care in this case. After all, the standard of care

for a health care provider or physician is what an ordinarily prudent health care

provider or physician “would have done under the same or similar circumstances.”

See Strom, 110 S.W.3d at 222. Since Dr. Breall did not contemplate the

circumstances surrounding this case, he could not have identified the standard of

care applicable to Dr. Goswami or Austin Heart.

      Also, Dr. Breall’s report fails to attribute his standard of care opinion to any

particular defendant. “When a plaintiff sues more than one defendant, the expert

report must set forth the standard of care applicable to each defendant and explain

the causal relationship between each defendant’s individual acts and the injury.”

Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011,

no pet.); see also CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). An expert report may not assert that

multiple defendants are all negligent for failing to meet the standard of care

without providing an explanation of how each defendant breached the standard of

care and how that breach caused or contributed to the cause of injury. Taylor v.


                                          18
Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus

Christi 2004, no pet.). “Collective assertions of negligence against various

defendants are inadequate.” Id.

      In this case, Appellee filed suit against multiple defendants. Dr. Breall’s

report mentions three defendants, Dr. Kessler, Dr. Goswami, and Austin Heart.

However, Dr. Breall made no attempt to explain the standard of care applicable to

each defendant. Rather, Dr. Breall only provides one standard of care opinion and

fails to explain to whom it applies. Dr. Breall’s collective statement is prohibited

by Chapter 74 and Texas case law. See TEX. CIV. PRAC. & REM. CODE § 74.351(a);

Taylor, 169 S.W.3d at 244. Dr. Breall’s report effectively provides no standard of

care opinion with regard to Dr. Goswami or Austin Heart, and therefore, the trial

court abused its discretion in denying Appellants’ motion to dismiss.

            3.     Dr. Breall fails to explain how Dr. Goswami and Austin
                   Heart breached the applicable standard of care.

      Dr. Breall’s report also fails to explain how Dr. Goswami and Austin Heart

allegedly breached their respective standards of care. Dr. Breall’s only stated

criticism against Dr. Goswami was that the order to stop Pradaxa “was not

appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same

group as Dr. Kessler).” (CR 44). However, Dr. Breall does not define this alleged

“failure to appreciate” as a breach of the applicable standard of care. In fact, Dr.

Breall does not identify the standard of care for appreciating another physician’s

                                        19
order. Hence, Dr. Breall effectively provides no opinion that Dr. Breall breached

the standard of care.

      Also, Dr. Breall does not explain how Dr. Goswami could have

“appreciated” Dr. Kessler’s order. Once again, Dr. Breall leaves out necessary and

vital facts to support this opinion. At no point does Dr. Breall’s report state that Dr.

Kessler communicated his March 27, 2012 order to Dr. Goswami. Rather,

Appellee admits this order to stop taking Pradaxa was communicated to her. (CR

6). Dr. Breall’s report again fails to link his conclusions to the facts in the case.

      Moreover, Dr. Breall fails to explain what Dr. Goswami should have done

differently had he been apprised of the order by another treating cardiologist.

Specifically, Dr. Breall fails to explain what else Dr. Goswami should have done

other than what Appellee admits Dr. Kessler did, which is to tell Appellee to stop

taking the Pradaxa. Dr. Breall’s report certainly does not state that Dr. Goswami

continued to prescribe Pradaxa after Dr. Kessler’s order.

      Again, Dr. Breall’s decision not to include supporting facts is not surprising

given that the facts reveal that Appellee continued to refill a Pradaxa prescription

that predated Dr. Kessler’s March 27, 2012 order without any notice to Dr.

Goswami. The report certainly does not explain how the facts establish Dr.

Goswami breached the standard of care. As explained in Section II(C)(1) above,

Dr. Breall’s failure to provide facts to support his opinion mandates dismissal.


                                           20
Jelinek, 328 S.W.3d at 540; Taylor, 320 S.W.3d at 578; Flores, 2014 WL 1691362,

*5–6. Dr. Breall’s report fails to provide any statement that Dr. Goswami breached

the applicable standard of care.

       In regard to Austin Heart, Dr. Breall states Appellee “appeared to be

obtaining refills for this medication authorized by nurses and staff of this same

heart group who recommended discontinuing this medication (Austin Heart).” (CR

44). However, this conclusory statement is a careful and calculated attempt to

mischaracterize the facts by excluding vital information. In this statement, Dr.

Breall noticeably fails to indicate the date in which Pradaxa refills were

“authorized by nurses and staff” of Austin Heart. If Austin Heart’s nurses and staff

authorized the refills before Dr. Kessler ordered Appellee to stop taking the

medication, there could not have been a breach. Dr. Breall noticeably omits the

date in which Austin Heart employees allegedly authorized refills of Pradaxa.5

       Without this vital information, the trial court could not have determined

whether Appellee’s claims have merit. Rather, in order to conclude the report was

sufficient as to Austin Heart, the trial court needed to draw an inference that Austin

Heart employees authorized refills of Pradaxa after Dr. Kessler’s March 27, 2012

5
 Per Appellee’s Original Petition, Dr. Kessler ordered Appellee to stop taking Pradaxa on March
27, 2012. (CR 6). The pharmacy records show that Appellee’s refill request was completed on
March 16, 2012, eleven days before Dr. Kessler’s order. (CR 331). Appellee then used the
prescription and refill requests, which predated Dr. Kessler’s order, to refill her Pradaxa on two
separate occasions. (CR 332–33). Again, Appellants include this information not for purposes of
determining the sufficiency of the report but to illustrate why the underlying facts are important
when analyzing an expert’s opinions.

                                               21
order. Yet, those facts are not provided in Dr. Breall’s report (most likely because

they are not the facts supported by the records or the witnesses in this case), and

the trial court abused its discretion in inferring these facts to find the report was

sufficient.

       Also, Dr. Breall’s supposed breach opinion again does not match a

corresponding standard of care opinion. Nowhere in Dr. Breall’s report does he

provide the standard of care for nurses and staff members who receive a request to

authorize prescription refills. (CR 43–44). Therefore, Dr. Breall’s breach statement

is wholly insufficient to satisfy Chapter 74. In sum, Dr. Breall does not provide any

statement showing that Austin Heart’s nurses or staff breached the standard of

care, and the trial court abused its discretion in finding that Dr. Breall’s report was

sufficient as to Austin Heart.

              4.    Dr. Breall’s report fails to explain how an alleged breach in
                    the standard of care by Dr. Goswami or Austin Heart
                    caused Appellee’s injuries.

       Dr. Breall’s report completely fails to explain how an alleged breach in the

standard of care by Dr. Goswami or Austin Heart caused Appellee’s injuries. As

the Supreme Court has recognized, “[a]n expert cannot simply opine that the

breach caused the injury. … Instead, the expert must go further and explain, to a

reasonable degree, how and why the breach caused the injury based on the facts

presented.” Jelinek, 328 S.W.3d at 539–40. Without this explanation, the trial court


                                          22
cannot conclude the claims have merit. Id.; see also Smith, 368 S.W.3d at 578

(Austin Court reversing trial court’s denial of motion to dismiss after finding report

failed to provide facts explaining the causal link between alleged breach and the

occurrence or injury); Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454,

*4–5 (Tex. App.—Austin Aug. 22, 2014, no pet.). Here, Dr. Breall’s report fails to

establish a causal link between an alleged breach in the standard of care by

Appellants and Appellee’s alleged injuries.

      In regard to Dr. Goswami, Dr. Breall’s report only complains that Dr.

Kessler’s order to stop the medication was not “appreciated” by Dr. Goswami.

However, as explained above, Dr. Breall fails to explain how Dr. Goswami’s lack

of knowledge of Dr. Kessler’s order to stop taking Pradaxa caused Appellee to

continue to take Pradaxa. Dr. Breall’s report does not provide any facts indicating

that Dr. Goswami knew of Dr. Kessler’s order or that, after Dr. Kessler ordered

Appellee to stop taking Pradaxa, Dr. Goswami had any further contact with

Appellee before her alleged injuries. Moreover, one would expect Appellee to

follow the order of her treating cardiologist (Dr. Kessler) without needing a second

cardiologist (Dr. Goswami) to repeat the order. In short, Dr. Breall fails to explain

how any act or omission by Dr. Goswami led Appellee to continue to take Pradaxa.

      In regard to Austin Heart, Dr. Breall’s only breach statement was that

Appellee “appeared to be obtaining refills for this medication authorized by nurses


                                         23
and staff of this same heart group who recommended discontinuing this medication

(Austin Heart).” But again, Dr. Breall fails to allege that Austin Heart’s employees

authorized refills of Pradaxa after Dr. Kessler’s order to stop. To make a causal

connection, Dr. Breall would need to establish that Austin Heart employees

authorized Appellee to obtain refills of Pradaxa after Dr. Kessler’s order on March

27, 2012. Without this information, the trial court could not have concluded from

Dr. Breall’s report that an act or omission by Austin Heart employees caused

Appellee to continue to take Pradaxa after March 27, 2012.6

       As this Court recently noted in Smith v. Wilson, an expert must explain, with

supporting facts, how each defendant’s alleged breach in the standard of care

caused the injury in question. 368 S.W.3d at 577–78. A conclusory statement on

causation is wholly insufficient. Id. Dr. Breall’s report offers no explanation or

facts explaining the causal link between alleged breaches in the standard of care by

Appellants and Appellee’s continued use of Pradaxa. Hence, Dr. Breall’s report

fails to satisfy the requirements of section 74.351.

       Furthermore, Dr. Breall fails to explain how Appellee’s ingestion of Pradaxa

between March 27, 2012 and her hospitalization in July of 2012 caused the injuries

6
  Further, Dr. Breall cannot satisfy the causation element by offering mere possibilities. See Fung
v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012, no pet.), overruled on other grounds,
Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). “Reports providing a ‘description of
only a possibility of causation do[ ] not constitute a good-faith effort to comply with the
statute.’” Id. Dr. Breall states Appellee “appeared to be obtaining refills for [Pradaxa] authorized
by” Austin Heart employees. (CR 44) (emphasis added). This language indicates Dr. Breall is
simply guessing that Austin Heart employees authorized refills for Appellee.

                                                24
alleged in his report -- hypertension, acute kidney injury, and apparent

gastrointestinal bleeding. Rather, Dr. Breall simply states, without any explanation,

“[f]ailure to discontinue the use of Pradaxa was a direct cause of her subsequent

admission to the hospital with hypotension, acute kidney injury and apparent

gastrointestinal bleeding.” (CR 44). Dr. Breall provides no explanation or factual

support for this conclusion as to how Appellee’s ingestion of Pradaxa over a two

month period caused these physical injuries. Conclusory statements on causation

will not satisfy Chapter 74’s expert report requirements. See Palacios, 46 S.W.3d

at 875; Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave, 300 S.W.3d

343, 346 (Tex. App.—San Antonio 2009, pet. denied).

      Since Dr. Breall only offered conclusions about the statutory elements of an

expert report, the trial court had “no discretion but to conclude ... that the report

does not represent a good-faith effort” to satisfy the statute. Smith, 368 S.W.3d at

577. Nonetheless, the trial court in this case found that Dr. Breall’s report was

“adequate under Chapter 74” and denied Appellants’ objections and motion to

dismiss. (CR 344, 365–66). The trial court’s ruling amounted to an abuse of

discretion. Smith, 368 S.W.3d at 577. Appellants request that this Court reverse

and the trial court’s ruling and remand with an order to grant Appellants’ motion to

dismiss.




                                         25
      D.     By Serving A Report Like Dr. Breall’s, Appellee Effectively
             Negates The Purpose Of Chapter 74’s Expert Report
             Requirement.

      As stated above, the purpose of section 74.351 is to prevent the filing of

frivolous lawsuits against physicians and health care providers in Texas. One of the

central purposes of the expert report is to provide a basis for the trial court to

conclude the claims have merit. Palacios, 46 S.W.3d at 879. Stated otherwise, the

report should let the trial court know the claims are not frivolous. When an expert

report conceals the relevant facts and provides only baseless conclusions on the

three elements of a health care liability claim, a plaintiff effectively negates the

purpose of the expert report requirement and circumvents section 74.351.

      This is precisely what Appellee has done in this case. Dr. Breall’s report

conceals the relevant facts in hopes that his vague conclusions would hide the

frivolous nature of Appellee’s claims. If the trial court’s decision is upheld, the

purposes behind Chapter 74 will effectively be nullified and claimants would likely

use this Court’s decision to file frivolous claims against physicians and health care

providers by simply ignoring the facts. This is certainly not what the Legislature

intended when enacting Chapter 74 (formerly article 4590i).

                          CONCLUSION & PRAYER

      In conclusion, Dr. Breall’s report suffers from a number of fatal flaws. Dr.

Breall provides absolutely no facts to support his conclusions on the applicable


                                         26
standard of care, breach, and causation. Dr. Breall also fails to apprise Appellants

of the specific conduct called into question so as to notify the trial court of what

Appellants should have done differently in their care for Appellee. Moreover, Dr.

Breall’s report fails to identify the standard of care applicable to each Appellant,

fails to describe any act or omission by the Appellants that amounted to a breach in

that standard of care, and fails to show how any alleged breaches by Appellants

caused Appellee’s injuries. To the extent Dr. Breall does offer a limited opinion on

any of these elements, he only offers baseless conclusions that do not even connect

the applicable standard of care with an alleged breach of that standard of care

along with a causal link. Accordingly, the trial court abused its discretion when

holding that Dr. Breall’s report was “adequate” under Chapter 74 and denying

Appellants’ motion to dismiss.

      WHEREFORE,         PREMISES        CONSIDERED,        Appellants    respectfully

request that this Court reverse the trial court’s order denying Appellants’ Chapter

74 Motion to Dismiss and remand to the trial court with an order that all claims

and causes of action asserted by Appellee against Appellants be dismissed with

prejudice and that Appellants be awarded their reasonably attorneys’ fees and costs

as allowed by Chapter 74 of the Texas Civil Practices and Remedies Code.

Appellants further pray for such other relief that they may be justly entitled.




                                          27
                                     Respectfully submitted,

                                     SERPE, JONES, ANDREWS,
                                     CALLENDER & BELL, PLLC


                                     By:   /s/ Chris Knudsen
                                           Chris Knudsen
                                           Texas Bar No. 24041268
                                           cknudsen@serpejones.com
                                     America Tower
                                     2929 Allen Parkway, Suite 1600
                                     Houston, Texas 77019
                                     Telephone: (713) 452-4400
                                     Facsimile: (713) 452-4499

                                     Attorneys for Appellants Vivek Goswami,
                                     M.D. and Austin Heart, PLLC

                     CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing Brief for Appellants is computer
generated, has been prepared in a conventional typeface no smaller than 14-point
for text and 12-point for footnotes, contains 6,322 words according to word count
function of the computer program used to prepare this Brief, excluding any parts
exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas Rule of
Appellate Procedure 9.4.



                                     /s/ Chris Knudsen
                                     Chris Knudsen




                                       28
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded to all known counsel of record in accordance with
the Texas Rules of Appellate Procedure on this the 5th day of January, 2015.

      L. Todd Kelly
      THE CARLSON LAW FIRM, P.C.
      11606 N IH-35
      Austin, Texas 78753
      Counsel for Plaintiff/Appellee

      Cynthia Day Grimes
      STRASBURGER & PRICE, LLP
      2301 Broadway
      San Antonio, Texas 78215-1157
      Counsel for Defendants Walgreen Co.
      and Sara Elizabeth McGuire

      Missy Atwood
      GERMER BEAMAN & BROWN, PLLC
      301 Congress Avenue, Suite 1700
      Austin, Texas 78701
      Counsel for Defendant St. David’s Health
      Care Partnership


                                       /s/ Chris Knudsen
                                       Chris Knudsen




                                        29
    APPENDIX A

TRIAL COURT ORDERS




        30
                                                                         Filed in The District Coun
                                                                          of Travis County, Texas

                                                                               NOV 05 ZOl~        ~


OFFICE OF THE DISTRICT JUDGES
 Travis County Court House
       P.O. Box 1748
    Austin, Texas 78767
      (512) 854-9300

                                     October 30, 2014


  Mr. L. Todd Kelly                               Ms. Cynthia Day Grimes
  The Carlson Law Firm, P.C.                      Strasburger & Price, LLP
  n6o6 N. IH 35                                   2301 Broadway
  Austin, Texas 78753                             San Antonio, Texas 78215-1157
  Via Facsimile: (512) 719-4362                   Via Facsimile: (210) 250-6003
  Mr. Christopher Knudsen                        Ms. Missy Atwood
  Serpe, Jones, Andrews,                         Germer Beaman & Brown, PLLC
  Callender & Bell, PLLC                         301 Congress Avenue, Suite 1700
  American Tower                                 Austin, Texas 78701
  2929 Allen Parkway, Suite 1600                 Via Facsimile: (512) 472-0721
  Houston, Texas 77019
  Via Facsimile: (713) 452-4499

           Re: Cause No. D-1-GN-14-000903; Nancy Jo Rodriguez vs. The
           Walgreen Company, Sara Elizabeth McGuire, Austin Heart PLLC, St.
           David's Health Care Partnership, David Kessler, MD, and Vivek
           Goswami, MD; in the 419th Judicial District Court of Travis County,
           Texas

  Dear Counsel:

         Having reviewed the above said matter the Court will find that purported expert
  reports regarding alleged negligence against Walgreens and Sara Elizabeth McGuire are
  inadequate to satisfy the requirements of Chapter 74, Tex.Civ. Prac. & Rem Code and
  such claim should be dismissed.

         The Court will find that expert report of Dr. Breall pertaining to Dr. Goswami and
  Austin Heart is adequate under Chapt. 74 and the plaintiffs claim will proceed. No
  sanctions on attorney's fee will be ordered.




                                                           344
Cause No. D-1-GN-14-000903                                             Filed in The District Court
                                                                        of Travis County, Texas
October 30, 2014
Page 2 of2
                                                                             NOV 0 5 2014        ctJ
                                                                      At          \ I~ 5't aiM.
                                                                      Amalia Rodriguez-Mendoza, Clerk
       I ask that Mr. Kelly and Ms. Grimes prepare appropriate orders reflecting the
Court's Rulings and forward the same to Lorraine Elzia, Office of the District Judges,
Rm, 327, P.O. Box 1748, Austin, Texas 78767.

       Thank you.

                                       Sincerely Yours,




                                       Gus J. Strauss
                                       Presiding Judge

 cc:   Travis County District Clerk




                                                       345
                                     DC           BK14342 PG666



                                                                          ~=~;~ in !he District Court
                                                                            . . . ravJs County, Texas


                                                                          ,:~~£~~~2014 1
                                 CAUSE NO.     D~l~GN-14~000903
                                                                         ''maua Rodriguez-Mendoza,   ~erk
NANCY JO RODRIGUEZ                            §                   IN THE DISTRICT COURT OF
                                              §
        Plaintiff,                            §
                                              §
vs.                                           §                   TRAVIS COUNTY, TEXAS
                                              §
THE WALGREEN COMPANY,                         §
SARA ELIZABETH MCGUIRE,                       §
AUSTIN HEART PLLC, ST. DAVID'S                §
HEALTHCARE PARTNERSHIP,                       §
AND VIVEK GOSWAMI, M.D.                       §
                                              §
        Defendants.                           §                   4191h JUDICIAL DISTRICT

 ORDER DENYING DEFENDANTS VIVEK GOSWAMI, M.D. AND AUSTIN HEART,
     PLLC'S CH. 74 MOTION TO DISMISS AND MOTION FOR A WARD OF
                          ATTORNEYS' FEES

        Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss

Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion for Award

of Attorneys' Fees came to be heard and considered in the above-entitled and numbered cause on

October 29, 2014. The Court, after hearing argument of counsel and considering the written

motion, objections to the report of Dr. Jeffrey A. Breall, response and reply, is of the opinion that

the Defendants' motion should be DENIED and that the report of Dr. Jeffiey A. Breall

adequately complies with §74.351 of the Texas Civil Practice and Remedies Code. Accordingly,

it is hereby,

         ORDERED, ADJUDGED AND DECREED as follows:

        I. Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss

            Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion

            for Award of Attorneys' Fees are DENIED;




                                                                   365
                                   DC          BK14342 PG667




          2. Dr. Jeffrey A. Breal1's expert report complies with §74.351 of the Texas Civil

             Practice and Remedies Code; and

          3. Plaintiffs Counter-Motion for Sanctions is DENIED.

          SIGNED this   f



     AGREED-AS-
         -·


·'
                                                        icole Andrews
                                                      ChrisM. Knudsen
                                                      Margaret Garib
                                                      SERPE, JONES, ANDREWS,
                                                      CALLENDER & BELL, PLLC
                                                      2929 Allen Pkwy, Suite 1600
                                                      Houston, TX 77019




                                                               366
APPENDIX B

  CASES




    31
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720


                                                                 medical-malpractice claims against American Transitional
                                                                 Care Centers, Inc., d/b/a American Transitional Hospital,
                    46 S.W.3d 873
                Supreme Court of Texas.                          because it determined that the Palacioses’ expert report
                                                                 did not show a good-faith effort to provide a fair summary
  AMERICAN TRANSITIONAL CARE CENTERS                             of the expert’s opinions about the standard of care,
   OF TEXAS, INC. d/b/a American Transitional                    breach, and causation, as required by section 13.01. See
                Hospital, Petitioner,                            id. § 13.01(d), (e), (l), (r)(6). The court of appeals, after
                         v.                                      evaluating the trial court’s decision as it would a
      Teofilo PALACIOS and Maria Palacios,                       summary-judgment decision, reversed, holding that the
  individually and a/n/f of Gloria Janeth Palacios               report did meet the statutory requirements. 4 S.W.3d 857,
    and Rocio Daniela Palacios, minors, Maria                    860.
 Angelica Palacios, and Sentry Insurance, a mutual
              company, Respondents.                              We hold that a trial court’s decision to dismiss a case
                                                                 under section 13.01(e) is reviewed for abuse of discretion.
 No. 99–1311. | Argued Dec. 6, 2000. | Decided May               We further hold that to constitute a good-faith effort to
  10, 2001. | Rehearing Overruled June 28, 2001.                 provide a fair summary of an expert’s opinions under
                                                                 section 13.01(l ), an expert report must discuss the
Medical malpractice action was brought against hospital          standard of care, breach, and causation with sufficient
to recover for injuries patient allegedly suffered in fall at    specificity to inform the defendant of the conduct the
hospital. The 280th District Court, Harris County, Tony          plaintiff has called into question and to provide a basis for
Lindsay, J., dismissed case for failure to file expert report,   the trial court to conclude that the claims have merit. In
as required by Medical Liability and Insurance                   this case, the trial court did not abuse its discretion in
Improvement Act. Patient appealed. The Houston Court             concluding that the challenged report does not meet the
of Appeals, First District, reversed and remanded, 4             statutory requirements and in dismissing with prejudice
S.W.3d 857. On petition for review, the Supreme Court,           the claims against American Transitional. Accordingly,
Hankinson, J., held that: (1) trial court’s determination        we reverse the court of appeals’ judgment and dismiss
about adequacy of expert report under Act is reviewed            with prejudice the Palacioses’ claims.
under abuse-of-discretion standard, and (2) expert’s report
did not provide fair summary of standard of care and how         Teofilo Palacios suffered brain damage and other severe
it was breached.                                                 injuries following a two-story fall at work. After almost a
                                                                 year in an intensive rehabilitation program, he was
Court of Appeals’ judgment reversed.                             transferred to American Transitional Hospital for further
                                                                 rehabilitation. Although Palacios at that time was able to
                                                                 *876 communicate with others and respond to simple
Attorneys and Law Firms                                          commands, he required assistance with most daily tasks.
                                                                 In addition, due to the severity of his brain damage,
*875 Matthew T. McCracken, John C. Marshall, James C.            Palacios’ physicians prescribed bed restraints for him.
Marrow, Dee L. Dawson, Marshall & McCraken,                      Nevertheless, while a patient at American Transitional,
Houston, for Petitioner.                                         Palacios fell from his bed and required additional medical
                                                                 care for his injuries. His family claims that this fall caused
D. John Leger, Leger & Coplen, Levon G. Hovnatanian,
                                                                 him to sustain further brain injury, which impaired his
Martin Disiere & Jefferson, Houston, Mickey C. Shyrock,
                                                                 ability to communicate with others and to assist them in
Law Office of Mickey C. Shyrock, Athens, for
                                                                 his care.
Respondents.

Opinion                                                          Palacios and his family sued American Transitional and
                                                                 the treating doctors, respectively, for negligently failing to
Justice HANKINSON delivered the opinion of the Court.            prevent the fall and negligently treating him after the fall.
                                                                 After ninety days passed from the date the Palacioses
                                                                 filed suit, American Transitional, along with the other
In this medical-malpractice case we determine the                defendants, moved to require the Palacioses to file a
standards for reviewing an expert report under section           $7,500 cost bond, as required by section 13.01(b) of the
13.01 of the Medical Liability and Insurance                     Medical Liability and Insurance Improvement Act. See
Improvement Act. TEX.REV.CIV. STAT. ANN.. art.                   TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(b)
4590i, § 13.01. The trial court dismissed the Palacioses’        (authorizing a trial court to order a plaintiff to file a

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      1
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

$7,500 cost bond for each defendant physician or health-        opinions early in the litigation an obvious place to start in
care provider if the plaintiff has not complied with the        attempting to reduce frivolous lawsuits. See HOUSE
expert-report or $5,000 cost-bond requirement in section        COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. H.B.
13.01(a)); id. § 13.01(a) (requiring the plaintiff to file      971, 74th Leg., R.S. (1995).
either an expert report or a $5,000 cost bond for each
defendant physician or health-care provider within ninety       Accordingly, in section 13.01, the Legislature requires
days of filing suit). The trial court granted the motion, and   medical-malpractice plaintiffs, within 180 days of filing
the Palacioses filed a cost bond for each defendant.            suit, either to provide each defendant physician and
                                                                health-care provider with an expert report and the expert’s
After 180 days passed from the date the Palacioses filed        curriculum vitae, or to nonsuit the claims. TEX.REV.CIV.
suit, American Transitional moved to dismiss the case           STAT. ANN.. art. 4590i, § 13.01(d). If the plaintiff fails
against it because the Palacioses did not file an expert        within the time allowed either to provide the expert
report and curriculum vitae, or nonsuit the claims against      reports and curriculum vitae, or to nonsuit the case, the
American Transitional, as section 13.01(d) of the Act           trial court must sanction the plaintiff by dismissing the
requires. Id. § 13.01(d), (e). The Palacioses moved for an      case with prejudice, awarding costs and attorney’s fees to
extension of time to file the report, which the trial court     the defendant, and ordering the forfeiture of any
granted. See id. § 13.01(f), (g). The Palacioses then filed a   applicable cost bond necessary to pay that award. Id. §
report prepared by Dr. Catherine F. Bontke, who treated         13.01(e). If the plaintiff does timely file a report, the
Palacios at the first rehabilitation hospital. American         defendant may move to challenge the adequacy of the
Transitional again moved to dismiss under section               report, and the trial court must grant the motion if “it
13.01(e), claiming that the report did not satisfy the          appears to the court ... that the report does not represent a
statutory requirements. See id. § 13.01(l), (r)(6). The trial   good faith effort to comply with the definition of an
court granted the motion, dismissed with prejudice the          expert report.” Id. § 13.01(l). The statute defines an expert
claims against American Transitional, and severed those         report as “a written report by an expert that provides a fair
claims to make the judgment against American                    summary of the expert’s opinions ... regarding applicable
Transitional final. See id. § 13.01(e).                         standards of care, the manner in which the care rendered
                                                                ... failed to meet the standards, and the causal relationship
The Palacioses appealed, and with one justice dissenting,       between that failure and the injury, harm, or damages
the court of appeals reversed and remanded after using          claimed.” Id. § 13.01(r)(6). If a trial court determines that
summary-judgment review standards to evaluate the               an expert report does not meet these statutory
sufficiency of the expert report. 4 S.W.3d at 860. After        requirements and the time for filing a report has passed, it
indulging every reasonable inference in the Palacioses’         must then dismiss with prejudice the claims against the
favor and eliminating any deference to the trial court’s        defendant who has challenged the report. Id. § 13.01(e).
decision, the court of appeals concluded that the trial
court erred in dismissing the case because the Palacioses       American Transitional contends that a trial court’s
made a good-faith effort to provide a report that met the       determination about the adequacy of an expert report
requirements of section 13.01(r)(6). Id. at 862–63.             should be reviewed under an abuse-of-discretion standard.
American Transitional petitioned for review challenging         The Palacioses respond that whether a report meets the
both the standard of review applied by the court of             requirements of subsections 13.01(l) and (r)(6) is a
appeals and the sufficiency of the Palacioses’ report.          question of law. They suggest that a trial court’s decision
                                                                on the adequacy of a report should be reviewed as a court
[1]
    Texas courts have long recognized the necessity of          would review a summary-judgment decision: that is, by
expert testimony in medical-malpractice cases. E.g., Hart       indulging every reasonable inference and resolving any
v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v.         doubts in the nonmovant’s favor, and eliminating any
Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949).                deference to the trial court’s decision. We agree with
“There can be no other guide [than expert testimony], and       American Transitional.
where want of skill and attention is not thus shown by
                                                                [2] [3]
expert evidence applied to the facts, there is no evidence             The plain language of section 13.01 leads to the
of it proper to be submitted to the jury.” Hart, 399 S.W.2d     conclusion that abuse of discretion is the proper standard.
at 792. Because expert testimony is crucial to a medical-       First, the statute directs the trial court to grant a motion
malpractice case, *877 knowing what specific conduct the        challenging the adequacy of an expert report if it “appears
plaintiff’s experts have called into question is critical to    to the court” that the plaintiffs did not make a good-faith
both the defendant’s ability to prepare for trial and the       effort to meet the statutory requirements. Id. § 13.01(l).
trial court’s ability to evaluate the viability of the          This language plainly vests the trial court with discretion.
plaintiff’s claims. This makes eliciting an expert’s            See TEX. GOV’T CODE § 312.002. (“[W]ords shall be

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

given their ordinary meaning.”). Second, the statute states    then look outside the report at the plaintiff’s conduct to
that dismissal under section 13.01(e) is a sanction: If the    determine whether the plaintiff made a good-faith effort
requirements of section 13.01(d) are not met, the court        to meet the statutory requirements, id. § 13.01(l ). The
must “enter an order as sanctions” dismissing the case and     Palacioses, on the other hand, argue that the statute
granting the defendant its costs and attorneys’ fees.          requires only one inquiry—whether the report evidences a
TEX.REV.CIV. STAT. ANN .. art. 4590i, § 13.01(e).              good-faith effort to provide a fair summary of the expert’s
Sanctions are generally reviewed under an abuse-of-            opinions. According to the Palacioses, the trial court does
discretion standard. Koslow’s v. Mackie, 796 S.W.2d 700,       not have to make any factual determinations because the
704 (Tex.1990). And we presume the Legislature was             only relevant information is in the report itself. We agree
aware of the standard of review ordinarily applied in          with the Palacioses that a trial court should look no
sanctions cases when it explicitly identified a court’s        further than the report in conducting a section 13.01(l )
dismissal under section 13.01(e) as a sanction. *878 See       inquiry.
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128
(1943) ( “All statutes are presumed to be enacted by the       The issue for the trial court is whether “the report”
legislature with full knowledge of the existing condition      represents a good-faith effort to comply with the statutory
of the law and with reference to it.”).                        definition of an expert report. Id. § 13.01(l ). That
                                                               definition requires, as to each defendant, a fair summary
Nevertheless, the court of appeals concluded that the          of the expert’s opinions about the applicable standard of
usual standard of review for sanctions should not apply        care, the manner in which the care failed to meet that
here. The court reasoned that the provisions of article        standard, and the causal relationship between that failure
4590i at issue here were intended to discourage frivolous      and the claimed injury. Id. § 13.01(r)(6). Because the
lawsuits, while sanctions, in contrast, are a response to      statute focuses on what the report discusses, the only
litigation misconduct. We disagree with this distinction.      information relevant to the inquiry is within the four
                                                               corners of the document.
Filing a frivolous lawsuit can be litigation misconduct
                                                               [5] [6]
subject to sanction. See TEX.R. CIV. P. 13 (imposing                   Under subsections 13.01(l ) and (r)(6), the expert
sanctions for filing groundless motions, pleadings, or         report must represent only a good-faith effort to provide a
other papers in bad faith or for the purposes of               fair summary of the expert’s opinions. A report need not
harassment). And one purpose of the expert-report              marshal all the plaintiff’s proof, but it must include the
requirement is to deter frivolous claims. HOUSE COMM.          expert’s opinion on each of the elements identified in the
ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, 74th              statute. See *879 Hart v. Wright, 16 S.W.3d 872, 877
Leg., R.S. (1995). The Legislature has determined that         (Tex.App.—Fort Worth 2000, pet. denied). In setting out
failing to timely file an expert report, or filing a report    the expert’s opinions on each of those elements, the report
that does not evidence a good-faith effort to comply with      must provide enough information to fulfill two purposes if
the definition of an expert report, means that the claim is    it is to constitute a good-faith effort. First, the report must
either frivolous, or at best has been brought prematurely.     inform the defendant of the specific conduct the plaintiff
See id. This is exactly the type of conduct for which          has called into question. Second, and equally important,
sanctions are appropriate. See TransAmerican Natural           the report must provide a basis for the trial court to
Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)            conclude that the claims have merit. See 4 S.W.3d at 865
(holding that “death-penalty” sanctions are appropriate        (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d 829, 830
when a party’s discovery abuse justifies a presumption         (Tex.App.—San Antonio 1999, pet. denied) (noting that
that its claims lack merit). For these reasons, we hold that   one of the purposes of article 4590i is to deter frivolous
an abuse-of-discretion standard of review applies to a trial   claims).
court’s decision to dismiss a case under section 13.01(e).
                                                               [7] [8] [9] [10]
                                                                               A report that merely states the expert’s
[4]
    We next consider whether the trial court abused its        conclusions about the standard of care, breach, and
discretion in dismissing the Palacioses’ claims against        causation does not fulfill these two purposes. Nor can a
American Transitional. The parties disagree about how to       report meet these purposes and thus constitute a good-
determine a report’s adequacy under section 13.01(l ).         faith effort if it omits any of the statutory requirements.
American Transitional argues that the trial court must         See, e.g., Hart, 16 S.W.3d at 877 (holding that a report
engage in a two-step process: (1) the trial court must         was inadequate because it stated that the patient had a
determine whether the report constitutes a fair summary        heart attack and the doctor breached the standard of care,
of the expert’s opinions, TEX.REV.CIV. STAT. ANN..             without describing the standard of care); Wood, 988
art. 4590i, § 13.01(r)(6); and (2) if the trial court          S.W.2d at 831–32 (holding that an expert report did not
concludes that the report is not a fair summary, it must       meet the statutory requirements because it did not name

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

the defendants, state how the defendants breached the          minutes,” that Dr. Bontke believes American
standard of care, demonstrate causation and damages, or        Transitional’s staff should have tied the restraints to the
include a curriculum vitae). However, to avoid dismissal,      bed more securely.
a plaintiff need not present evidence in the report as if it
                                                               [12]
were actually litigating the merits. The report can be              The standard of care for a hospital is what an
informal in that the information in the report does not        ordinarily prudent hospital would do under the same or
have to meet the same requirements as the evidence             similar circumstances. See Birchfield v. Texarkana Mem’l
offered in a summary-judgment proceeding or at trial.          Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the
See, e.g., TEX.R. CIV. P. 166(f) (setting out the              standard of care is critical: Whether a defendant breached
requirements for the form and content of affidavits            his or her duty to a patient cannot be determined absent
offered as summary-judgment proof); TEX.R. EVID. 802           specific information about what the defendant should
(stating that most hearsay is inadmissible).                   have done differently. “While a ‘fair summary’ is
                                                               something less than a full statement of the applicable
[11]
    American Transitional contends that Dr. Bontke’s           standard of care and how it was breached, even a fair
report does not meet the statutory requirements because it     summary must set out what care was expected, but not
does not represent a good-faith effort to provide a fair       given.” 4 S.W.3d at 865 (Taft, J. dissenting). The
summary of her opinion on the standard of care and how         statement the Palacioses rely upon—that precautions to
American Transitional breached that standard. The              prevent Palacios’ fall were not properly used—is not a
Palacioses respond that the following parts of Dr.             statement of a standard of care. Neither the trial court nor
Bontke’s report establish these elements:                      American Transitional would be able to determine from
                                                               this conclusory statement if Dr. Bontke believes that the
   Based on the available documentation I was able to          standard of care required American Transitional to have
   conclude that: Mr. Palacios fell from his bed on 5/14/94    monitored Palacios more closely, restrained him more
   while trying to get out of it on his own. The nursing       securely, or done something else entirely. “It is not
   notes document that he was observed by nursing on the       sufficient for an expert to simply state that he or she
   hour for two hours prior to the fall. In addition, ten      knows the standard of care and concludes it was [or was
   minutes before the fall, the nursing notes documents        not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233
   [sic] the his wrist/vest restraints were on. Yet, at the    (Tex.App.—El Paso 1995, writ denied). Knowing only
   time of his fall he was found on the floor with his         that the expert believes that American Transitional did not
   vest/wrist restraints on but not tied to the bed. It is     take precautions to prevent the fall might be useful if
   unclear how he could untie all four of the restraints       American Transitional had an absolute duty to prevent
   from the bedframe in under ten minutes. Obviously,          falls from its hospital beds. But as a general rule, res ipsa
   Mr. Palacios had a habit of trying to undo his restraints   loquitur does not apply in medical-malpractice cases.
   and precautions to prevent his fall were not properly       TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting
   utilized.                                                   res ipsa loquitur in medical malpractice to the limited
                                                               classes of cases to which it applied as of August 29,
   ....                                                        1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951
                                                               (Tex.1990).
   All in all, Mr. Palacios sustained a second brain injury
   with a left subdural hematoma while he was an               When the expert report’s conclusory statements do not put
   inpatient at [the Hospital].... [I]n my opinion, the        the defendant or the trial court on notice of the conduct
   medical care rendered to Mr. Palacios at the time of his    complained of, section 13.01(l ) affords the trial court no
   second brain injury was below the accepted and              discretion but to conclude, as the trial court did here, that
   expected standard of care which he could expect to          the report does not represent a good-faith effort to provide
   receive. Moreover, this [sic] below the accepted            a fair summary of the standard of care and how it was
   standard of care extends to both the cause of the second    breached, as section 13.01(r)(6) requires. And because the
   injury as well as the subsequent treatment....              statutory 180 day time period had passed when the trial
                                                               court here made that determination, section 13.01(e)
The Palacioses rely mostly on one sentence in the report
                                                               required the court to dismiss with prejudice the
to establish the standard of care: “Mr. Palacios had a habit
                                                               Palacioses’ claims against American Transitional. See
of *880 trying to undo his restraints and precautions to
                                                               TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e).
prevent his fall were not properly utilized.” They argue
                                                               Accordingly, we reverse the court of appeals’ judgment
that the inference can be made from that sentence, along
                                                               and dismiss with prejudice the Palacioses’ claims.
with the statement that “[i]t is unclear how he could untie
all four of the restraints from the bed frame in under ten

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   4
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001)
44 Tex. Sup. Ct. J. 720

Parallel Citations                                             44 Tex. Sup. Ct. J. 720

End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         5
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)




                                                               Before Justices     PATTERSON,        PEMBERTON           and
                   228 S.W.3d 276                              WALDROP.
               Court of Appeals of Texas,
                        Austin.

  AUSTIN HEART, P.A. and David J. Kessler, M.D.,
                   Appellants,
                        v.                                                             OPINION
  Christian L. WEBB and Marilou Webb, Appellees.
                                                               G. ALAN WALDROP, Justice.
        No. 03–06–00607–CV. | May 9, 2007.
                                                               Austin Heart, P.A. and David J. Kessler, M.D. appeal the
                                                               district court’s order denying their motion to dismiss
Synopsis                                                       Christian and Marilou Webb’s medical malpractice
Background: Patient brought medical malpractice action         claims. Austin Heart and Dr. Kessler contend that the
against physician and physician’s professional association     expert report served on them pursuant to civil practice and
alleging that physician failed to diagnose and treat the       remedies code section 74.351 did not comply with the
medical condition which caused patient’s severe heart          statute because it did not sufficiently identify either
palpitations and other health conditions. Physician and        Austin Heart or Dr. Kessler as the parties responsible for
professional association moved to dismiss on the basis         the alleged breach of the standard of care or the cause of
that patient’s expert report did not identify them as the      the alleged injury to Mr. Webb. See Tex. Civ. Prac. &
parties responsible for breaching the standard of care or      Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We
causing injury to patient. The District Court, 98th Judicial   agree that the plaintiffs’ expert report was deficient and
District, Travis County, Paul Davis, P.J., initially granted   that the district court erred in denying the motion to
the motion to dismiss, but, on patient’s motion for a          dismiss. However, we are of the view that the cure
rehearing, reversed its ruling to deny the motion to           provisions of section 74.351(c) are designed to allow the
dismiss. Physician and professional association appealed.      plaintiffs an opportunity to address and correct the defect.
                                                               Consequently, we reverse the district court’s order
                                                               denying the motion to dismiss and remand this cause to
Holdings: The Court of Appeals, G. Alan Waldrop, J.,           the district court to consider whether a 30–day extension
held that:                                                     of the deadline for serving the report to allow the
                                                               plaintiffs to address the deficiency is appropriate.
[1]
   patient’s expert report was deficient as it did not
specifically state that the defendant physician was the        The Webbs sued Austin Heart and Dr. Kessler in January
physician that breached the relevant standard of care and      of 2006 alleging that Dr. Kessler failed to “diagnose and
caused alleged injury to patient, but                          treat the medical condition which caused [Mr. Webb’s]
                                                               severe palpitations and resulting associated health
[2]
  patient was entitled to a 30-day extension to cure such      conditions.” The palpitations and other symptoms
deficiencies.                                                  described by the Webbs were related to Mr. Webb’s
                                                               pacemaker. On May 31, 2006, the Webbs filed and served
                                                               the expert report and curriculum vitae of Dr. Alan E.
Reversed and remanded.                                         Cororve pursuant to the requirements of section 74.351 of
                                                               the civil practice and remedies code setting forth Dr.
Jan J. Patterson, J., filed a dissenting opinion.              Cororve’s opinions regarding Mr. Webb’s treatment for
                                                               his problems with his pacemaker. Austin Heart and Dr.
                                                               Kessler filed a motion to dismiss on June 21, 2006,
Attorneys and Law Firms                                        claiming that Dr. Cororve’s report did not identify either
                                                               Dr. Kessler or Austin Heart as the parties responsible for
*278 Robert L. Hargett, Emily J. Davenport, Davis &            breaching the standard of care or causing Mr. Webb
Wilkerson, P.C., Austin, for appellant.                        injury and, therefore, the report was not a timely report as
                                                               to them. In response, the Webbs claimed that the report
James L. Wright, Watts Law Firm, L.L.P., Austin, for           was sufficient as written and, in the alternative, filed a
appellee.                                                      motion for a 30–day *279 extension to cure in the event
                                                               the court found the report deficient.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



                                                                  required information within its four corners.”); see also
The district court initially granted the motion to dismiss        Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859
on August 22, 2006, and did not grant a 30–day extension          (Tex.App.-Houston [1st Dist.] 2006, no pet.).
to allow the plaintiffs to attempt to cure the deficiency.
                                                                  [4]
The Webbs filed a motion for rehearing and a motion for              We review a district court’s ruling on a motion to
new trial on September 15, 2006, arguing that the court           dismiss under section 74.351 for an abuse of discretion.
had misinterpreted case law relating to what constitutes a        Palacios, 46 S.W.3d at 877–78. A trial court abuses its
sufficient report under section 74.351 and that Dr.               discretion when it acts in an arbitrary or unreasonable
Cororve’s report was sufficient. They also re-urged their         manner or without reference to any guiding rules or
request for a 30–day extension to cure in the event the           principles. Downer v. Aquamarine Operators, Inc., 701
court denied their motion for rehearing. The district court       S.W.2d 238, 241–42 (Tex.1985). A trial court does not
then reversed its original ruling, granted the motion for         abuse its discretion simply because it may decide a matter
rehearing, and entered an order denying the motion to             within its discretion differently than an appellate court. Id.
dismiss. This appeal followed.                                    at 242. However, a trial court has no discretion in
                                                                  determining *280 what the law is or applying the law to
[1]
   Section 74.351 requires a claimant pursuing a health           the facts. Walker v. Packer, 827 S.W.2d 833, 840
care liability claim to serve one or more expert reports on       (Tex.1992). A clear failure by the trial court to analyze or
each party no later than the 120th day after the filing of        apply the law correctly will constitute an abuse of
the original petition. Id. § 74.351(a). The expert report         discretion. Id.
must provide “a fair summary of the expert’s opinions as
of the date of the report regarding applicable standards of       In a single issue, Austin Heart and Dr. Kessler argue that
care, the manner in which the care rendered by the                section 74.351(b) mandates dismissal of the Webbs’
physician or health care provider failed to meet the              lawsuit. Their argument is straightforward: Read literally,
standards, and the causal relationship between that failure       without any inferences or reliance on information outside
and the injury, harm, or damages claimed.” Id. §                  of its four corners, Dr. Cororve’s report does not identify
74.351(r)(6). A court shall grant a motion challenging the        either Dr. Kessler or Austin Heart as having breached the
adequacy of a report only if the report “does not represent       standard of care or having caused Mr. Webb injury. The
an objective good faith effort to comply” with the                Webbs respond that, while the sections of Dr. Cororve’s
definition of “expert report” in the statute. Id. § 74.351(l ).   report relating to the breach of the standard of care and
To constitute a good faith effort, the report must provide        causation do not identify any specific physicians, the
enough information to fulfill two purposes: (1) it must           meaning of the report read as a whole is apparent and
inform the defendant of the specific conduct the plaintiff        reveals that Dr. Cororve is referring to Mr. Webb’s
has called into question, and (2) it must provide a basis         treatment by Dr. Kessler.
for the trial court to conclude that the claims have merit.
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52                  Dr. Cororve’s two and one-half page report is divided into
(Tex.2002) (citing American Transitional Care Ctrs., Inc.         five sections—“Qualifications,” “Materials Reviewed and
v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)).                      Background,” “Standard of Care,” “Standard of care not
                                                                  met,” and “Causation.” In the section titled Materials
[2] [3]
       The Texas Supreme Court has also stated that a             Reviewed and Background, Dr. Cororve lists the various
report need not marshal all of the plaintiff’s proof, but it      medical records he reviewed. 1 He then sets out selected
must include the expert’s opinion on each of the elements         portions of these records detailing the relevant aspects of
identified in section 74.351. Palacios, 46 S.W.3d at 878.         Mr. Webb’s history of treatment for a trial fibrillation and
A report cannot merely state the expert’s conclusions             palpitations over a period of nearly four years beginning
about the statutory elements. Id. at 879. “Rather, the            with the placement of his pacemaker in November 2001.
expert must explain the basis of his statements to link his       This review of Mr. Webb’s treatment history includes a
conclusions to the facts.” Bowie Memorial, 79 S.W.3d at           number of references to Dr. Kessler’s office notes,
52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890                 comments by Dr. Kessler in those notes, complaints by
(Tex.1999)). In addition, since the statute focuses on what       Mr. Webb contained in the notes, a reference to the office
is required in the report, the only information relevant to       notes of a Dr. George Rodgers, an email from Mr. Webb
determining whether a report complies with the statute is         to Dr. Kessler, a response email from Dr. Rodgers, 2 and a
“within the four corners of the document.” Palacios, 46           general statement that “[Mr. Webb] was seen by various
S.W.3d at 878. This requirement precludes a court from            physicians, including several electrophysiological
filling gaps in a report by drawing inferences or guessing        consultations.” The background section concludes with
as to what the expert likely meant or intended. See Bowie         the observation that “[f]urther evaluation eventually
Memorial, 79 S.W.3d at 53 (“The report must include the           documented diaphragmatic stimulation and a new right

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



ventricular lead was placed on September 7, 2005. The            Cororve is identifying Dr. Kessler as the physician who
patient was subsequently discharged in excellent                 breached the standard of care and caused injury. Had Dr.
condition.”3 The background section of the report offers         Cororve referenced only actions by Dr. Kessler in the
no opinions regarding the appropriateness of the treatment       background section of his report, the link between Dr.
or the responses of the physicians to Mr. Webb’s                 Cororve’s opinions and the responsible physician might
complaints. It is strictly a recitation of historical material   be more apparent. However, Dr. Cororve also refers to
contained in the medical records reviewed by Dr.                 actions taken by Dr. Rodgers and makes a vague
Cororve.                                                         reference to Mr. Webb having been “seen by various
                                                                 physicians, including several electrophysiological
The report then concludes with the following three               consultations” after he was treated by Dr. Kessler but
sections:                                                        before his condition improved.6 There is nothing in the
                                                                 report that links Dr. Kessler to Dr. Cororve’s opinions
                                                                 regarding the breach of the standard of care and causation
                                                                 any more than Dr. Rodgers or the other “various
Standard of Care                                                 physicians” referenced.

  The standard of care in a patient such as this requires        The Webbs point out that (1) Dr. Kessler is the only
  more intensive investigation as to the source of a             defendant physician and (2) the essence of Dr. Cororve’s
  patient’s symptoms and subsequent corrective actions           opinions is that the breach of the standard of care was the
  to ameliorate the problem. Attempts at adjusting the           failure of the treating physicians, implicitly including Dr.
  ventricular pacing outputs should routinely be                 Kessler, to properly adjust the ventricular pacing outputs.
  attempted and would most likely have pinpointed the            *282 However, that Dr. Kessler is the only defendant
  problem much earlier. This standard of care was not            physician is not relevant to an analysis of whether an
  met.                                                           expert report complies with section 74.351. The fact that
                                                                 he is the only defendant physician and, therefore, very
                                                                 likely to be the subject of the report is outside the four
Standard of care not met                                         corners of the report. See Palacios, 46 S.W.3d at 878. It
                                                                 also does nothing to clarify to whom the opinions of the
  The diagnostic and corrective action eventually taken,
                                                                 expert supplying the report apply. The expert’s opinions
  specifically the increase *281 in the ventricular pacing
                                                                 are, of course, confined to the report and must tell the
  output, should have been implemented much sooner.
                                                                 reader not only what conduct breached the standard of
                                                                 care, but whose conduct breached the standard of care.
Causation                                                        The plaintiffs’ allegation that a particular physician was at
                                                                 fault does not substitute for the requirement that they
    Had the corrective action described occurred, Mr.            supply an expert report demonstrating that the expert is of
    Webb would not have undergone the physical and               the same opinion.
    mental problem(s) he had and could have continued his
    normal lifestyle much earlier than he did.                   We also do not agree that the substance of Dr. Cororve’s
[5]
    Dr. Kessler and Austin Heart point to these sections         opinions could only be associated with the conduct of Dr.
and argue that, while they may articulate an opinion on          Kessler. The essence of Dr. Cororve’s opinion is that the
the breach of the standard of care and on causation, the         physicians who treated Mr. Webb should have adjusted
sections do not identify Dr. Kessler as breaching the            his ventricular pacing outputs sooner and the failure to do
standard of care or causing injury.4 The Webbs concede           so was a breach of the standard of care. This opinion
that these sections do not expressly mention Dr. Kessler.        could apply or not apply equally to Dr. Kessler, Dr.
They argue, however, that the background section of the          Rodgers, or the various unnamed physicians. The report
report makes it clear Dr. Cororve’s opinions relate to Dr.       must state, in some manner, who breached the standard of
Kessler because it is primarily Dr. Kessler’s actions that       care and who caused the alleged injury, and whether that
are noted in the relevant history.5 Thus, they argue the         includes Dr. Kessler. In the words of the supreme court in
report should be read to mean that the opinions in the           Palacios, “the report must inform the defendant of the
standard of care and causation sections refer to the actions     specific conduct the plaintiff has called into question.”
and conduct of Dr. Kessler set out in the background             Palacios, 46 S.W.3d at 879. This includes informing the
section of the report.                                           defendant of the specific conduct in question of that
                                                                 defendant. See Palacios, 46 S.W.3d at 878 (The statute
The problem with this argument is that it requires the           requires, as to each defendant, a fair summary of the
reader to infer or make an educated guess that Dr.               expert’s opinions about the applicable standard of care,

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



the manner in which the care failed to meet that standard,      Kessler, the court has no discretion but to dismiss the
and the causal relationship between the failure and the         plaintiffs’ claims with prejudice. See Jernigan v. Langley,
claimed injury).                                                195 S.W.3d 91, 94 (Tex.2006); Marichalar, 185 S.W.3d
                                                                at 73–74. This overstates the holding in Garcia. The
We are mindful that a report’s adequacy under section           physician in Garcia was not mentioned in the report at all.
74.351 does not depend on whether the expert uses any           There was literally nothing in the report that related to the
particular magic words such as “the standard of care was        physician in any way. Thus, the report was no report as to
breached by Dr. Kessler.” See Bowie Memorial, 79                him. The Garcia court then held that this was a situation
S.W.3d at 53. However, the report must communicate in           where no expert report was timely filed with respect to the
some fashion—within its four corners—how the care               physician in question, precluding the trial court from
rendered by the physician failed to meet the applicable         considering an extension to cure because there was no
standard of care and the causal relationship between that       timely report to cure. 185 S.W.3d at 74 (trial court had no
failure and the injury suffered by the claimant. Tex. Civ.      authority to allow a cure period for a nonexistent report).
Prac. & Rem.Code Ann. § 74.351(r)(6). We recognize
that this information could be communicated in a number         A closer case is Jernigan v. Langley, 195 S.W.3d 91
of ways and it could be communicated in sections of a           (Tex.2006). In Jernigan, the supreme court noted that a
report other than sections titled “Standard of Care” or         mere “passing reference” to a physician in a report,
“Causation.” The form of the report and the location of         without explanation of how the physician breached the
the information in the report are not dispositive. However,     standard of care or caused the injury, would not constitute
in this case, Dr. Cororve’s report is silent as to whether a    a sufficient report. 195 S.W.3d at 94. The only reference
single physician, multiple physicians, or all physicians        to Dr. Jernigan in the report was “[a]t 4:30 p.m. [John
mentioned in the report failed to meet the standard of care     Langley’s] case was discussed with Dr. Jernigan and at
and caused injury to Mr. Webb. It simply does not state         4:50 p.m. a lactulose enema was ordered.” The expert’s
that the care rendered by Dr. Kessler failed to meet            opinion on breach of the standard of care had to do with
applicable standards and caused injury.                         the failure to examine certain x-rays. The report did not
                                                                link Dr. Jernigan or the referenced discussion with Dr.
[6]
   While we are of the view that Dr. Cororve’s report is        Jernigan to a breach of the standard of care or to the
deficient under section 74.351 because it requires the          failure to examine x-rays in any way. It made no other
reader to make an educated guess regarding an essential         mention of him or what he did at all. The supreme court
element, we are also aware that the defect might well be        noted that the single reference to Dr. Jernigan in the
curable. The tenor of Dr. Cororve’s report, coupled with        report was so oblique that there was no connection at all
the fact that there is only one physician defendant, makes      between the reference to him and the expert’s opinions
it quite likely that Dr. Cororve intended to opine that Dr.     regarding the standard of care and causation. It affirmed
Kessler breached the standard of care and caused injury         the trial court’s dismissal of the lawsuit based on the
even though the report did not contain that opinion. The        insufficiency of the report, stating that “the trial court had
report’s failure on this point is the kind of defect that the   no discretion but to conclude, as it did here, that
cure provisions of section 74.351(c) were designed *283         Langley’s claims against Dr. Jernigan must be
to address. Since the district court ultimately found the       dismissed.” Id.
report to be sufficient, the court did not consider whether
a 30–day extension of the report deadline to allow the          The report in Jernigan, as in Garcia, amounted to no
Webbs to attempt to cure a defect would be appropriate.         report at all as to Dr. Jernigan and warranted dismissal for
In light of our ruling that the report does contain a defect,   failure to serve a timely report. There was no discretion
we believe consideration by the trial court of the Webbs’       for the court to grant an extension to cure because there
request for an extension to attempt to cure the defect is       was no timely report—with respect to Dr. Jernigan—to
warranted.                                                      cure.7 Any attempt by the plaintiffs *284 to “cure” the
                                                                reports in Jernigan and Garcia would, in effect, have
Austin Heart and Dr. Kessler argue that Garcia v.               been to create and serve new reports—that did not exist at
Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005,           all within the time period for serving reports—with
no pet.), supports the proposition that an expert report that   respect to the physicians in question in each case. This is
references multiple health care providers but fails to          conceptually no different from the situation where a
delineate the standard of care, breach and causal               plaintiff simply missed the deadline for serving a report.
connection as to specific, individual defendants is
tantamount to no report at all with respect to those            Jernigan and Garcia differ from this case in crucial
defendants. They then posit that since Dr. Cororve’s            respects. Here, a timely report plainly discusses the
report should be considered no report at all as to Dr.          conduct of the physician in question and the report

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



discusses opinions on the standard of care and causation         JAN P. PATTERSON, Justice, dissenting.
that could be linked to the conduct of the physician set out
in the report, but simply are not. The report is not             While the expert report requirement in medical
deficient because it does not relate to Dr. Kessler at all. It   malpractice cases is designed to weed out frivolous
is deficient because the link between Dr. Kessler’s              claims, it is not meant to be an insurmountable hurdle.
conduct and the expert’s conclusions is not expressly            The majority *286 raises the bar, however, by requiring a
stated. The report in this case is, therefore, some report as    fastidious reading of the report. The expert report
to Dr. Kessler (among others), but it is not sufficient to       proffered by the Webbs may not be a perfect report, but it
meet all of the requirements of section 74.531. It is an         is clear when viewed as a whole whose conduct is at
example of what section 74.351(c) refers to as a report          issue—Dr. Kessler’s. I therefore cannot agree that the trial
that “has not been served within the [120–day period for         court abused its discretion in finding the report adequate. I
serving reports] because elements of the report are found        would affirm the order of the trial court.
deficient.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).
In such a circumstance, section 74.351(c) grants the trial       Even assuming the report is merely “some report as to Dr.
court discretion to allow a 30–day extension of the              Kessler (among others),” the remand fashioned by the
deadline “in order to cure the deficiency.” Id. Jernigan         majority is not appropriate in this case and alters the
and Garcia cannot be read to mean that any deficiency in         statutory scheme crafted by the legislature. Austin Heart
a report requires dismissal without the possibility of an        and Dr. Kessler moved to dismiss the Webbs’ lawsuit
extension to cure because that would mean section                solely on the ground that the expert report was “no report”
74.351(c) has no possible application and is superfluous.        and, thus, the trial court had no discretion to consider an
Section 74.351(c) contemplates that there are                    extension to cure deficiencies. Having found that the
circumstances where a timely report will be deficient, but       report is indeed some report for which the trial court
the deficiency can be cured. To be consistent with the           could have granted an extension, the majority has rejected
statute, Jernigan and Garcia must be read to allow for at        Austin Heart’s and Dr. Kessler’s sole ground for
least some situations where a timely report is deficient,        dismissal. The appropriate remedy would be a remand to
but the trial court should consider whether the deficiency       the trial court for the cause to proceed without the need
is such that it warrants allowing a cure period.8 Id.            for an extension. For these reasons, I respectfully dissent.

*285 We are of the opinion that the report in this case
falls into that category. It was served timely, it makes
more than a passing reference to Dr. Kessler, and it notes
conduct by Dr. Kessler that could be linked to the expert’s       FACTUAL AND PROCEDURAL BACKGROUND
conclusions regarding the breach of the standard of care
and causation. It is deficient only because it does not          On January 31, 2006, the Webbs filed suit against Austin
expressly make the link between the expert’s conclusions         Heart and Dr. Kessler, alleging that Dr. Kessler,
and the referenced conduct by Dr. Kessler. If the expert is      individually, and Austin Heart, through the actions of Dr.
of the opinion that Dr. Kessler’s conduct breached the           Kessler, negligently failed to diagnose and treat Christian
standard of care and caused injury, he will not have to          Webb for a medical condition related to his pacemaker
generate a new, previously nonexistent report. He will           that caused him to experience “severe palpitations” and
simply have to add the link between his already stated           other associated health conditions. On May 31, 2006, the
conclusions and the already referenced conduct of Dr.            Webbs filed the expert report and curriculum vitae of Dr.
Kessler. Therefore, the circumstances here are not similar       Alan Cororve pursuant to section 74.351 of the civil
to the situation where a plaintiff simply has missed the         practice and remedies code. See Tex. Civ. Prac. &
deadline for serving a report with respect to the conduct        Rem.Code Ann. § 74.351(a) (West Supp.2006). Austin
of a physician.                                                  Heart and Dr. Kessler filed a motion to dismiss under
                                                                 section 74.351(b), asserting that the Webbs had failed to
We reverse the district court’s order denying the motion         file an expert report specifically addressing the standard
to dismiss filed by Austin Heart, P.A. and Dr. Kessler and       of care, breach of the standard of care, or causation as to
remand this cause for further proceedings.                       either Austin Heart or Dr. Kessler. See id. § 74.351(b).
                                                                 The district court initially granted the motion to dismiss.
                                                                 The Webbs filed a motion for rehearing and motion for
                                                                 new trial, and the district court granted the motions. The
                                                                 district court then denied Austin Heart’s and Dr. Kessler’s
Dissenting Opinion by Justice PATTERSON.                         motion to dismiss, and this interlocutory appeal followed.


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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



                                                               question and provide a basis for the trial court to
                                                               determine that the claims have merit. Id. at 879.

                       ANALYSIS                                The supreme court has stated that “to avoid dismissal, a
                                                               plaintiff need not present evidence in the report as if it
In their single issue on appeal, Austin Heart and Dr.          were actually litigating the merits. The report can be
Kessler argue that dismissal was mandated by section           informal in that the information in the report does not
74.351(b).                                                     have to meet the same requirements as the evidence
                                                               offered in a summary-judgment proceeding or at trial.” Id.
                                                               Because the statute focuses on what the report should
                                                               discuss, the only information relevant to the inquiry is that
Abuse of discretion standard
                                                               which appears within the four corners of the document.
We review a trial court’s ruling on a motion to dismiss        Id. at 878. When examined in its entirety, an expert report
under section 74.351(b) for an abuse of discretion.            may be so deficient as to a particular defendant that it
American Transitional Care Ctrs. of Tex., Inc. v.              constitutes no report as to that defendant. See, e.g., Garcia
Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial            v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San
court abuses its discretion if it acts in an arbitrary or      Antonio 2006, no pet.) (Garcia II); Garcia v. Marichalar,
unreasonable manner or without reference to any guiding        185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)
rules and principles. Downer v. Aquamarine Operators,          (Garcia I ).
Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When
reviewing matters committed to the trial court’s
discretion, we may not substitute our own judgment for
                                                               Dr. Cororve’s report
that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56,
63 (Tex.2003).                                                 To satisfy the expert report requirement, the Webbs
                                                               served Austin Heart and Dr. Kessler with a two-and-one-
                                                               half-page report from Dr. Cororve. The report begins by
                                                               stating that “[a]ny reference in this report to Dr. David J.
The expert report requirement
                                                               Kessler, M.D. refers to Dr. Kessler individually, and his
In a health-care liability claim, the claimant must provide    employer, Austin Heart, P.A.”1 In a section titled
each defendant with one or more expert reports, including      “Materials Reviewed and Background,” the first
a curriculum vitae for each expert, within 120 days of         paragraph begins, “My opinions are based upon my
filing the original petition. Tex. Civ. Prac. & Rem.Code       review of ...,” then lists specific medical records and
Ann. § 74.351(a). An “expert report” is:                       office notes from four medical facilities and five doctors,
                                                               and states that “[i]n addition, my opinions are based upon
                                                               my experience, training, knowledge, and qualifications as
            a written report by an expert that
                                                               a physician.” The report next discusses Mr. Webb’s
            provides a fair summary of the
                                                               treatment history following the implantation of his
            expert’s *287 opinions as of the
            date of the report regarding                       pacemaker on November 30, 2001:
            applicable standards of care, the
            manner in which the care rendered
                                                                 Subsequent to that procedure, Mr. Webb complained
            by the physician or health care                      on various occasions concerning his sensing the
            provider failed to meet the                          pacemaker pacing or being aware of forceful
            standards,     and    the     causal                 heartbeats. To that extent, Dr. Kessler noted on
            relationship between the failure and
                                                                 01/18/02     “possibly    diaphragmatic     stimulation
            the injury, harm, or damages
                                                                 intermittently.” With the office visit of 03/19/03, Dr.
            claimed.
                                                                 Kessler notes this was the second complaint of
                                                                 abdominal twitching. The pacemaker was reduced to
Id. § 74.351(r)(6). Failure to serve an adequate expert
                                                                 see if abdominal symptoms could be relieved with less
report mandates dismissal with prejudice. Id. § 74.351(b).
                                                                 frequent pacing. On 04/25/03, Dr. Kessler states the
A report need not marshal all of the plaintiff’s proof, but
                                                                 patient was aware of pacing intermittently and was
it must include the expert’s opinion on each of the
elements identified in the statute. Palacios, 46 S.W.3d at       suspicious of diaphragmatic stimulation.
878. To constitute a good faith effort, the report must
inform the defendant of the specific conduct called into
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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



    *288 Dr. Kessler states he had previously assessed           The diagnostic and corrective action eventually taken,
    this and had not found it to be present. On that day,        specifically the increase in the ventricular pacing
    he tested the pacemaker with various outputs, the            output, should have been implemented much sooner.
    patient was aware of pacing at higher outputs, but the
    doctor did not believe the patient had true
    diaphragmatic stimulation.                                 Causation

    During a pacemaker check performed on 06/08/03,               Had the corrective action described occurred, Mr.
    the patient stated he still had “hiccup” feelings in his      Webb would not have undergone the physical and
    abdomen, and Dr. Rodgers’ office note of 05/06/04             mental problem(s) he had and could have continued his
    stated the patient had some feelings of hiccup-like           normal lifestyle much earlier than he did.
    discomfort.                                                   Austin Heart and Dr. Kessler do not challenge the
                                                                  adequacy of the report’s description of these three
    On 12/16/04, Dr. Kessler references the patient’s             elements; rather, they assert that it is not clear to which
    ongoing anxiety, use of Xanax and his request for the         doctor they apply because the report mentions five
    PCP’s assistance managing the anxiety. Mr. Webb’s             doctors and four health care institutions, but fails to
    email to Dr. Kessler on 04/27/05 states how the               reference any of the providers in the analysis of
    patient’s “been suffering two years.” The patient’s           standard of care, breach and causation. They urge, *289
    email of 05/04/05 asks if the pacemaker lead might            therefore, that Dr. Cororve’s report is essentially “no
    be in the wrong place, and Dr. Rodgers responded              report” as to Austin Heart and Dr. Kessler.
    “no.”2 Dr. Kessler’s note of 05/27/05 states the           Because Austin Heart and Dr. Kessler do not contest the
    patient was complaining of palpitations but “I am          adequacy of the report’s descriptions of the statutorily
    reluctant to place a new lead at this time.”               required elements, the only question before this Court is
                                                               whether the trial court abused its discretion in determining
  Subsequent to these events, Mr. Webb continued to            that the report sufficiently ties Dr. Kessler to the analysis
  have palpitations and problems with diaphragmatic            of the statutory elements. From the context and structure
  stimulations. He was seen by various physicians,             of the report, it is clear that Dr. Cororve’s listing of the
  including several electrophysiological consultations.        notes and records of the doctors and health care
  The persistence of his symptoms significantly impaired       institutions in the “Materials Reviewed” paragraph of the
  his quality of life and ability to concentrate at work.      report was not intended to make the doctors or health care
  Because of this, he was presecribed an anti-depressant       institutions themselves the focus of Dr. Cororve’s
  and anti-anxiety medication. Further evaluation              analysis. Thus, the focus is on the section of the report
  eventually documented diaphragmatic stimulation and          discussing Mr. Webb’s medical treatment and the sections
  a new right ventricular lead was placed on September         setting out the statutorily required elements. In the
  7, 2005. The patient was subsequently discharged in          medical-treatment discussion, only two doctors are
  excellent condition.                                         named—Dr. Kessler and Dr. Rodgers—and there is one
  The report has three final sections setting out the three    reference to unnamed “various physicians.” No doctor is
  statutorily required elements:                               expressly mentioned in the sections addressing the
                                                               statutorily required elements.

Standard of Care                                               Austin Heart and Dr. Kessler contend that Dr. Cororve’s
                                                               report did not adequately tie Dr. Kessler to the statutory
  The standard of care in a patient such as this requires      elements, citing this Court to Jernigan, 195 S.W.3d 91,
  more intensive investigation as to the source of a           Garcia II, 198 S.W.3d 250, Garcia I, 185 S.W.3d 70, and
  patient’s symptoms and subsequent corrective actions         Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d
  to ameliorate the problem. Attempts at adjusting the         913 (Tex.App.-Texarkana 2006, no pet.). These cases are
  ventricular pacing outputs should routinely be               distinguishable.
  attempted and would most likely have pinpointed the
  problem much earlier. This standard of care was not          In Jernigan, the plaintiff filed suit against a hospital and
  met.                                                         several physicians including Dr. Jernigan. 195 S.W.3d at
                                                               92. The plaintiff served two expert reports; however, the
                                                               first failed to mention Dr. Jernigan at all, and the second
Standard of care not met
                                                               mentioned him in only one sentence: “At 4:30 p.m. [the
                                                               plaintiff’s] case was discussed with Dr. Jernigan....” Id. at
                                                               93. The supreme court concluded that the report was

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



inadequate as to Dr. Jernigan, stating that “[t]his passing     concluded that Dr. Garcia had not been served with a
reference does not identify with specificity any action or      report and, thus, the trial court did not have authority to
inaction by Dr. Jernigan that breached the applicable           grant the extension. Id. at 74. In Garcia II, the appellate
standard of care. This perfunctory mention alleges no           court addressed Dr. Garcia’s motion to dismiss. 198
misconduct whatsoever, much less discusses the required         S.W.3d 250. The court concluded that “neither report
elements with ‘sufficient specificity’ to inform Dr.            informed Dr. Garcia of the specific conduct he allegedly
Jernigan of ‘the conduct the plaintiff has called into          performed that [the plaintiff] had called into question,”
question.’ ” Id. (quoting Palacios, 46 S.W.3d at 875).          and, thus, the expert reports did not constitute a good-
                                                                faith effort to comply with the statutory requirements. Id.
In Longino, the plaintiffs sued two doctors and a hospital      at 255. The court therefore held that the trial court abused
for failing to diagnose their child’s bacterial meningitis      its discretion in denying Dr. Garcia’s motion to dismiss,
sooner. 183 S.W.3d at 915. The plaintiffs served a single       and the cause was remanded with instructions to the trial
expert report that did not distinguish between the actions      court to render judgment dismissing the claims against
of the two doctors. Id. at 917. The report stated that, “[i]n   Dr. Garcia with prejudice and to award him his reasonable
consultation with Dr. James Longino,” Dr. Cameron               attorney’s fees and costs of court. Id. at 256 (citing Tex.
ordered tests and admitted the plaintiffs’ child to the         Civ. Prac. & Rem.Code Ann. § 74.351(b)).
hospital, and in the discussion of the standard of care, the
report stated that                                              Unlike Jernigan, Longino, and Garcia, in this case, the
                                                                Webbs have filed a lawsuit complaining of the actions of
             Dr. Cameron[’s] and Dr. Longino’s                  only one doctor, Dr. Kessler, and their expert report is not
             care of [the plaintiffs’ child] fell               one in which they mentioned him only in passing, in
             below the standard of care.... Their               connection only with another doctor, or not at all. Instead,
             failure to either recognize or                     he is the subject of the majority of the report and is named
             acknowledge        the      obvious                eleven times.3 The first paragraph, which states that any
             symptoms of fever, altered mental                  reference to Dr. Kessler refers to him individually and to
             status, and neck pain; to perform a                his employer, Austin Heart, may be fairly read as
             timely diagnostic lumbar puncture;                 signaling that the report is about Dr. Kessler. In addition,
             and to aggressively treat [the                     Dr. Cororve’s description of Mr. Webb’s medical history
             child’s] bacterial meningitis with                 covers five visits with and one e-mail to Dr. Kessler
             an appropriate combination of                      spanning two and one half years in which Dr. Kessler
             antibiotics led to an unnecessary                  noted the following: “possibly diaphragmatic stimulation
             exacerbation of his symptoms.                      intermittently,” a second complaint about abdominal
                                                                twitching, Mr. Webb’s awareness of pacing intermittently
Id. The court concluded that the report contained “no           and suspicion of diaphragmatic stimulation, Mr. Webb’s
specific information concerning how Longino breached            awareness of pacing at higher outputs, disbelief that the
the standard of care apart from Cameron’s conduct,” and         patient had true diaphragmatic stimulation, Mr. Webb’s
therefore did not demonstrate a good-faith effort as to         ongoing anxiety and request for assistance managing the
Longino. Id.                                                    anxiety, and Mr. Webb’s complaining of palpitations, but
                                                                “I am reluctant to place a new lead at this time.” The
In the Garcia cases, the plaintiff filed suit against three     report’s two references to comments from Dr. Rodgers—a
doctors, two nurses, and a hospital. Garcia II, 198 S.W.3d      notation that the patient had some feelings of hiccup-like
at 252. The plaintiff served two expert reports, but neither    discomfort and a response of “no” to Mr. Webb’s e-mail
report mentioned Dr. Garcia at *290 all. Id. Dr. Garcia         asking if the lead might be in the wrong place—as well as
filed a motion to dismiss the claims against him asserting      the single reference to unnamed “various physicians,” do
that he had not been “served” with a report. Id. The trial      not obscure the report’s focus on the actions of Dr.
court initially granted the motion, but later dissolved its     Kessler. In addition, unlike Longino, the actions of the
order and granted the plaintiff a 30–day extension to cure      two doctors named are distinguishable.
any deficiencies in the report. Id. In Garcia I, the
appellate court addressed the extension, distinguishing         Dr. Cororve’s analysis of the statutory elements states that
situations in which a deficient report is filed from those in   the standard of care required “more intensive
which no report is filed—a trial court has discretion to        investigation,” “[a]ttempts at adjusting the ventricular
grant a 30–day extension in the former situation, but not       pacing outputs should routinely be attempted,” and “[t]he
the latter. 185 S.W.3d at 73. Because the reports served        diagnostic and corrective *291 action eventually taken,
by the plaintiff focused on the acts of other defendants        specifically the increase in the ventricular pacing output,
and failed to mention Dr. Garcia at all, the court              should have been implemented much sooner.” In the

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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



discussion of Mr. Webb’s medical history earlier in the                     prejudice and has no discretion to grant a 30–day
report, it appears that both Dr. Kessler and Dr. Rodgers                    extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)-
investigated Mr. Webb’s symptoms; however, only Dr.                         (c); Garcia I, 185 S.W.3d at 73. Yet, if the report is
Kessler is named in connection with testing and making                      merely “deficient” (and timely filed, as here), the trial
adjustments to the pacemaker. In addition, Dr. Kessler’s                    court is not required to immediately dismiss and has
notations contradict what Dr. Cororve states is the                         discretion to grant a 30–day extension to cure the
standard of care. According to Dr. Cororve’s report, Dr.                    deficiencies. Tex. Civ. Prac. & Rem.Code Ann. §
Kessler “did not believe the patient had true                               74.351(c).
diaphragmatic stimulation” however, “[f]urther evaluation
eventually documented diaphragmatic stimulation and a                       Austin Heart and Dr. Kessler elected to move for
new right ventricular lead was placed.” Under “Standard                     dismissal solely on the ground that the report was “no
of Care,” Dr. Cororve states that “[a]ttempts at adjusting                  report.”5 Having concluded that the report is “some report
the ventricular pacing outputs should routinely be                          as to Dr. Kessler (among others),” the majority has
attempted and would most likely have pinpointed the                         rejected the sole ground for dismissal. As such, the
problem much earlier.” After reviewing the report in its                    appropriate remedy would be a remand to the trial court
entirety, I cannot conclude that the trial court abused its                 for the cause to proceed without the need for an
discretion in determining that the report represents a                      extension.
good-faith effort to address the actions of Dr. Kessler.



The Remand                                                                                         CONCLUSION

The majority concludes that Dr. Cororve’s report is                         In summary, I disagree with the majority’s holding that
deficient and remands this cause to the district court to                   the trial court abused its *292 discretion in finding that
consider whether a 30–day extension is appropriate to                       the expert report proffered by the Webbs adequately links
address the deficiency. This remedy is inappropriate                        Dr. Kessler to the elements of standard of care, breach of
because it provides relief to Austin Heart and Dr. Kessler                  the standard, and causation. I would affirm the order of
on a ground not raised in the trial court or on appeal. See                 the trial court. I further disagree with the remedy
Tex.R.App. P. 33.1.                                                         fashioned by the majority because it grants relief to
                                                                            Austin Heart and Dr. Kessler on a ground that they did
Austin Heart and Dr. Kessler challenged Dr. Cororve’s                       not raise in the trial court or on appeal. For these reasons,
report solely on the ground that it was “no report,” not                    I respectfully dissent.
that it was a “deficient report.”4 The difference between
the two is strategically significant. If the report is “no
report,” then the trial court must dismiss the case with

Footnotes
1      These included records of five physicians, three hospitals, and a clinic.

2      In their brief, the Webbs state that the email response was actually by Dr. Kessler rather than Dr. Rodgers and the reference in
       the report is a typographical error. However, there is no evidence in the record on this point other than Dr. Cororve’s report.
3      The report does not mention who was responsible for the diagnosis of diaphragmatic stimulation or placing a new right
       ventricular lead.
4      Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler. Dr. Cororve’s report notes at the outset that
       “[a]ny reference in this report to David J. Kessler, M.D. refers to Dr. Kessler individually, and his employer, Austin Heart,
       P.A.” Consequently, for the purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler.
5      The Webbs suggest that a tally of the number of times a physician is mentioned in a report is significant. They note that Dr.
       Kessler’s name appears eleven times in Dr. Cororve’s report (as opposed to three times for Dr. Rodgers and once for “various
       physicians”). They argue that this could lead to a reasonable conclusion that the report must be about Dr. Kessler and his
       actions. However, we are not persuaded that such a tally is relevant to the analysis. A physician may be named in a report any
       number of times simply because he was intimately involved in the treatment of a patient, yet the complaint may be with the
       conduct of a physician who saw the patient only once and is mentioned in the report only once. The number of times a physician
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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)



      is mentioned in a report, by itself, has little bearing on whether the opinions expressed in the report concern that physician.
      What matters, of course, is how the physician is mentioned and what the report communicates about that physician.
6     It is not clear what the reference to “various physicians” and “electrophysiological consultations” in the report means or is
      intended to communicate.
7     Jernigan interpreted a prior version of the statute that had a different standard for granting an extension to cure. Under the
      previous iteration of the statute, the trial court could grant an extension only if it found that the failure to comply with the statute
      was “not intentional or the result of conscious indifference but was the result of an accident or mistake.” See former
      Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. The
      Jernigan opinion does not discuss the application of this standard, the trial court’s failure to grant an extension under this
      standard, or whether the trial court could have considered such an extension if it had made such findings. Thus, the Jernigan
      opinion is distinguishable from this case on this basis alone. However, even if the trial court’s discretion to dismiss claims under
      either version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no report” for the
      purposes of dismissal under either version of the statute.
8     The dissent argues that by remanding to allow the trial court to consider whether a section 74.351(c) extension is appropriate we
      are granting Dr. Kessler and Austin Heart more relief than they requested or are entitled to. The dissent’s theory is that there is a
      distinction under section 74.351 between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal
      on the basis that a report was served, but it does not meet the requirements of the statute and is deficient. According to the
      dissent, if a defendant seeks dismissal only on the basis that no report was served, then dismissal is not appropriate if the court
      finds that a report, no matter how deficient, was served. There are two problems with this theory.
         First, the dismissal mechanism of section 74.351 does not work the way the dissent suggests. Under section 74.351, a
         claimant must serve an “expert report,” as defined in the statute, or be subject to dismissal. If a claimant does not serve a
         report that complies with the statutory requirements, then the claimant has not served an “expert report” as defined in the
         statute. Whether a claimant actually fails to serve a report at all or serves a deficient report the effect under section 74.351(b)
         is the same—the claimant has failed to serve the required “expert report” and dismissal is the remedy. However, section
         74.351(c) provides a potential cure period for situations where the claimant has served a report, but the report does not
         constitute the required “expert report” because “elements of the report are found deficient.” The claimant then has an
         opportunity to fix the defect in the report that was served. If there is a failure to cure the defect by the extended deadline, then
         dismissal is mandatory because the claimant has failed to serve an “expert report” as defined in the statute.
         While section 74.351(b) does not distinguish between a complete failure to serve a report and the failure to serve a complying
         report, there is a distinction between the two for the purposes of 74.351(c). When a claimant fails to serve a report at all,
         section 74.351(c) does not provide a basis for the trial court to grant any extension of the deadline for serving a report.
         Consequently, dismissal is mandatory without any cure period. When a claimant serves a report, but it is deficient, section
         74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a claimant has failed to serve
         a report at all or has served a deficient report, the statutory basis of the motion to dismiss by a defendant is the same—the
         claimant has failed to serve an “expert report” as required by section 74.351(b). The fact that the claimant who files a
         deficient report may request and receive an extension of time to cure the deficiencies does not alter the nature of the
         defendant’s motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an “expert report.”
         Second, the defendants in this case did request dismissal on the basis that, while the Webbs had served a report that
         mentioned Dr. Kessler, the report “fails to address the standard of care applicable to Dr. Kessler, the breach of the standard or
         any alleged causal link.” This is an allegation that the report served was deficient. The defendants acknowledge that a report
         was served and that the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address the
         statutorily required elements. They are aware that section 74.351(c) grants the trial court some discretion in allowing an
         extension to cure certain deficient reports. But, they argue that the report in this case is so deficient that it should be viewed as
         “no report,” requiring dismissal rather than remand for consideration of an extension period. By alleging that the deficiency is
         severe enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period. They are not
         altering their claim that the report they received is deficient and will require dismissal if not corrected.
         We have concluded that the report is deficient, but not so deficient as to constitute “no report.” Therefore, our options are (1)
         reverse the trial court order denying the motion to dismiss and render judgment of dismissal or (2) reverse the trial court order
         and remand for consideration of whether an extension should be granted to give the plaintiffs an opportunity to attempt to
         cure. Remanding for the case to proceed on its merits, even though we agree with the appellants that the report is deficient, is
         not an option.
1     While Dr. Cororve’s report explicitly mentions Austin Heart, the Dallas court of appeals has held that when a defendant is only
      alleged to be vicariously liable for the negligence of another defendant, the expert report need not specifically name or address
      the negligence of the defendant to whom liability will be imputed. University of Tex. Southwestern Med. Ctr. v. Dale, 188
      S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). What is relevant is that the report specifically identify the person whose
      conduct the plaintiff is calling into question and show how that person’s conduct constituted negligence. Id.


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Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)


2     Earlier in the report, under the materials reviewed section, Dr. Cororve refers to an e-mail from Mr. Webb to Dr. Kessler dated
      05/04/05. In their brief on appeal, the Webbs assert that the report erroneously attributes the response to that e-mail as being
      from Dr. Rodgers when it was actually from Dr. Kessler. There is, however, no evidence in the record indicating who sent the e-
      mail.
3     While it is true that the number of times a physician is named, by itself, does not indicate the report complains of that
      physician’s conduct, it is more likely that a report discussing mainly the conduct of one physician is about the conduct of that
      physician.
4     The motion to dismiss clearly distinguishes the two scenarios, stating:
          This is not an occasion in which a report was served on Austin Heart, P.A. or David J. Kessler, M.D. wherein the expert
          failed to address a requisite element, such as the standard of care, the alleged breach of the standard, or the alleged causal
          link, thus making the report deficient. Here, the report constitutes no report at all.
        Thus, Austin Heart and Dr. Kessler did not, as the majority contends, “argue that the report in this case is so deficient that it
        should be viewed as ‘no report.’ ”
5     The remand fashioned by the majority grants Austin Heart and Dr. Kessler relief not requested because the majority treats their
      motion to dismiss as if it were based on two grounds: (1) that the report was “no report” and (2) that even if the report was some
      report that it was deficient. Austin Heart’s and Dr. Kessler’s motion, however, was based solely on the first ground. Without a
      motion to dismiss based on deficiency, there is no basis for a finding of deficiency and no need for a 30–day extension “to cure
      the deficiency.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     11
Bogar v. Esparza, 257 S.W.3d 354 (2008)




                                                               Diane Henson, J., filed dissenting opinion on denial of
                                                               motion for en banc reconsideration.
                   257 S.W.3d 354
               Court of Appeals of Texas,
                        Austin.
                                                               Attorneys and Law Firms
          Mark D. BOGAR, M.D., Appellant
                                                               *357 Carla Garcia Connolly, Connolly & Castagna,
                          v.
                                                               L.L.P., Austin, for Appellant.
      Dolores G. ESPARZA, Individually and as
     Administrator of the Estate of Katherine G.               Robert C. Alden, Don L. Davis, Byrd, Davis & Furman
  Guerrero; Deceased; Fernando Guerrero; Sofia G.              LLP, Austin, Stephen B. Pershing, Center for
   Butschy; Gilberto Guerrero; Antonio Guerrero;               Constitutional Litigation, P.C., Washington, DC, for
  Rosie G. Garza; Benito Guerrero; Josey G. Selvera;           Appellees.
            and Frances G. Faz, Appellees.
                                                               Before Justices     PATTERSON,        PEMBERTON            and
       No. 03–07–00037–CV. | May 16, 2008.                     WALDROP.

Synopsis
Background: Survivors of deceased patient brought
medical malpractice action against patient’s physician and
hospital after patient died from post-surgery                                          OPINION
pharmaceutical drug overdose. Physician and hospital
filed a joint motion for dismissal and attorney fees based     BOB PEMBERTON, Justice.
on survivors’ alleged failure to file an expert report that
complied with statutory requirements. The Probate Court        We withdraw our opinion, dissenting opinion and
No. 1, Travis County, Guy S. Herman, J., denied the            judgment dated June 28, 2007 and substitute the
motion for dismissal. Physician appealed.                      following in its stead. We overrule the Appellees’ Motion
                                                               for Rehearing.

                                                               We again address issues arising from the expert report
Holdings: On denial of rehearing, the Court of Appeals,        requirements of section 74.351 of the civil practice and
Bob Pemberton, J., held that:                                  remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §
[1]
                                                               74.351 (West Supp.2006). Appellant Mark D. Bogar,
   statute allowed physician to file an interlocutory appeal   M.D. appeals the probate court’s denial of his motion to
from trial court’s denial of the motion to dismiss;            dismiss appellees’ health care liability claims under
[2]
                                                               section 74.351(b) for failure to serve an expert report.
   expert report failed to comply with the statutory           Their appeal requires us to consider (1) whether we have
requirements, entitling physician to sanction;                 subject-matter jurisdiction to consider it; (2) whether
[3]
                                                               appellees served the required expert report; and, if not, (3)
    the expert report constituted “no report” as to            the appropriate appellate remedy. We conclude that we
physician, such that dismissal of the action against him       have jurisdiction over Dr. Bogar’s interlocutory appeal
was required without any opportunity to cure the report;       and that the controlling law and “four corners” of
and                                                            appellees’ report leave us no alternative but to reverse and
[4]
                                                               render judgment dismissing appellees’ claim and
   discovery limitations set forth in expert-report statute    awarding attorney’s fees and costs. See id. § 74.351(b). In
did not deny survivors due process.                            their motion for rehearing and en banc *358
                                                               reconsideration, appellees have urged that our application
                                                               of section 74.351 violates due process and due course of
Reversed, rendered, and remanded in part.
                                                               law. We disagree, for reasons we will explain herein. We
                                                               will remand to the probate court to determine the amount
Jan P. Patterson, J., filed a dissenting opinion and
                                                               of attorney’s fees to which Dr. Bogar is entitled.
dissented from the denial of en banc reconsideration.




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Bogar v. Esparza, 257 S.W.3d 354 (2008)



                    BACKGROUND
                                                                Both Dr. Bogar and Healthsouth timely filed notices of
Appellees sued Dr. Bogar and Healthsouth on May 1,              interlocutory appeal. In the interim, Healthsouth settled
2006, alleging negligence in connection with medical care       with appellees. We accordingly address only the appellate
provided to Katherine R. Guerrero by Dr. Bogar and the          issues presented by Dr. Bogar.
“agents, servants, employees, representatives, and staff”
of Healthsouth Rehabilitation Hospital of Austin between
December 28, 2004, and January 12, 2005, when Ms.
Guerrero died. Appellees alleged that following surgery,
Ms. Guerrero was placed under the care of Dr. Bogar and                                ANALYSIS
Healthsouth and, in the course of her rehabilitative
treatment, was given a fatal overdose of pharmaceutical         In a single issue, Dr. Bogar argues that the probate court
products. Appellees pleaded that an autopsy report from         abused its discretion in denying his motion to dismiss and
the Travis County Medical Examiner concluded that Ms.           request for attorney’s fees and costs. In addition to
Guerrero “died as a result of an overdose of oxycodone          disputing the merits of this contention, appellees have
and propoxyphene.”                                              filed a motion to dismiss *359 Dr. Bogar’s interlocutory
                                                                appeal for want of jurisdiction, contending that no statute
On or around June 6, 2006, Appellees served on Dr.              authorizes him to appeal the order he seeks to challenge.
Bogar and Healthsouth an expert report prepared by Dr.
Jesse Adame that purported to comply with the
requirement of subsection 74.351(a). See Tex. Civ. Prac.
& Rem.Code Ann. § 74.351(a) (“In a health care liability        Jurisdiction
                                                                [1]
claim, a claimant shall, not later than the 120th day after          Appellate courts generally have subject-matter
the date the claim was filed, serve on each party or the        jurisdiction only over appeals from final judgments and
party’s attorney one or more expert reports ... for each        have jurisdiction over appeals of interlocutory orders only
physician or health care provider against whom a liability      when that authority is explicitly granted by statute.
claim is asserted.”). Both defendants timely filed              Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d
objections to the sufficiency of Dr. Adame’s report. See        184, 185 (Tex.App.-Austin 2005, no pet) (citing Stary v.
id. (“Each defendant physician or health care provider          DeBord, 967 S.W.2d 352, 352–53 (Tex.1998)). Section
whose conduct is implicated in a report must file and           51.014(a) of the civil practice and remedies code
serve any objection to the sufficiency of the report not        authorizes an interlocutory appeal from two types of
later than the 21st day after the date it was served, failing   orders regarding expert reports under chapter 74. First, an
which all objections are waived.”). Each defendant              interlocutory appeal may be taken from an order that
contended that Dr. Adame’s report failed to satisfy the         “denies all or part of the relief sought by a motion under
statutory definition of an “expert report” by failing to        Section 74.351(b), except that an appeal may not be taken
provide a fair summary of the expert’s opinions regarding       from an order granting an extension under Section
applicable standards of care, the manner in which the care      74.351(c).” Tex. Civ. Prac. & Rem.Code Ann. §
rendered by each defendant failed to meet the standards,        51.014(a)(9) (West Supp.2006). Second, an interlocutory
and the causal relationship between such failure and Ms.        appeal may be taken from an order that “grants relief
Guerrero’s death. See id. § 74.351(a), (l ), (r)(6). Further,   sought by a motion under Section 74.351(l ).” Id. §
Dr. Bogar urged that Dr. Adame, a pathologist, had failed       51.014(a)(10).
to demonstrate that he was an “expert” qualified to render      [2]
opinions concerning the standards of care applicable to            Appellees assert that the order from which Dr. Bogar
Dr. Bogar, a physical medicine rehabilitation physician.        seeks to appeal is neither of these. They suggest that “the
See id. § 74.351(r)(5), § 74.401 (West 2005).                   relief sought by a motion under Section 74.351(b)” is
                                                                available only where a claimant has failed to timely file
Subsequently, after appellees’ 120–day deadline for             an instrument purporting to be an “expert report” by the
serving their expert reports expired, see id. § 74.351(a),      120–day deadline of subsection (a), not when a purported
Dr. Bogar and Healthsouth filed a joint motion seeking          “expert report” is timely filed but is found to be
dismissal with prejudice, attorney’s fees and costs for         inadequate. See id. § 74.351(b) (“If ... an expert report has
failure to file an expert report complying with section         not been served within the period specified by Subsection
74.351. See id. § 74.351(b). Dr. Bogar later filed an           (a)....”). Here, appellees maintain, there is no dispute that
amended motion to dismiss adding his earlier challenge to       “the expert report of Dr. Adame was served within the
Dr. Adame’s qualifications. On January 10, 2007, the            required period of time.” Appellees further assert that
probate court denied the dismissal motions.                     challenges to the adequacy or sufficiency of expert

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



reports, as contrasted with their absence or timeliness, are       provider failed to meet the standards, and the causal
governed exclusively by section 74.351(l ). Section                relationship between that failure and the injury, harm, or
74.351(l ) states that “[a] court shall grant a motion             damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. §
challenging the adequacy of an expert report only if it            74.351(r)(6); see id. § 74.351(r)(5) (definition of
appears to the court, after hearing, that the report does not      “expert”). Thus, if the report does not comply with
represent an objective good faith effort to comply with the        subsection (r)’s “expert report” definition, it does not
definition of an expert report in Subsection (r)(6).” Id. §        satisfy the claimant’s requirement under subsection (a)
74.351(l ). Because Dr. Bogar’s motion, in appellees’              and exposes the claimant to potential sanctions under (b),
view, is “a motion under section 74.351(l ),” they assert          including dismissal.
that his right of interlocutory appeal is controlled by
section 51.014(a)(10) rather than (a)(9), and no appeal is         Subsection (c), however, provides that “[i]f an expert
available from the probate court’s order denying him               report has not been served within the period specified by
relief. See id. § 51.014(a)(10) (permitting appeal from an         Subsection (a) because elements of the report are found
order that “grants relief sought by a motion under Section         deficient,” the trial court is afforded discretion to grant a
74.351(l )”) (emphasis added). They equate this case to            single 30–day extension “in order to cure the deficiency.”
Academy of Oriental Medicine, L.L.C. v. Andra, where we            Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (emphases
held that an order denying a motion challenging the                added); See Ogletree, 262S.W.3d at ––––, 2007 WL
sufficiency of an expert report was governed by section            4216606, at *2–3, 2007 Tex. LEXIS 1028, at *7–8 (“the
74.351(l ) rather than section 74.351(b) and that                  Legislature recognized that not all initial timely served
“[b]ecause this appeal challenges an order that is neither         reports would satisfy each of the statutory criteria. As a
an order denying the relief sought by a motion under §             result, the [2003] amendments explicitly give trial courts
74.351(b) nor one granting relief sought by a motion               discretion [in subsection (c) ] to grant a thirty-day
under § 74.351(l ), we lack jurisdiction to hear it.” 173          extension so that parties may, where possible, cure
S.W.3d at 186–89. We disagree with appellees’ views of             deficient reports.... In this important respect, a deficient
section 74.351 and Andra.                                          report differs from an absent report.”). Conversely, “[i]f
                                                                   no report is served within the 120–day deadline provided
[3]
    Under section 74.351(b), as the supreme court has              by 74.351(a)—i.e., an ‘absent report’—the Legislature
recently explained, a plaintiff may fail to “serve” an             denied trial courts the discretion to deny motions to
“expert report” within the period specified by Subsection          dismiss or grant extensions.” Ogletree, 262S.W.3d at –––
(a) not only by failing to serve any expert report within          –, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at
that deadline (an “absent report”), but also by failing to         *6; see also id. at –––– & n. 2, 2007 WL 4216606, at *2
provide a report within the deadline that satisfies the            & n. 2, at *7 & n. 2 (“section 74.351’s language is
statutory requirements for “expert reports” (a “deficient          somewhat confusing, as the statute uses the phrase “has
report”). See Ogletree *360 v. Matthews, No. 05–0502, ––           not been served” to refer both to deficient and absent
– S.W.3d ––––, –––– & n. 2, 2007 WL 4216606, at *2–3               reports.”).
& n. 2, 2007 Tex. LEXIS 1028, at *6–8 & n. 2, (Tex.
Nov. 30, 2007); Austin Heart P.A. v. Webb, 228 S.W.3d              The supreme court also reiterated the concept that a report
276, 284 (Tex.App.-Austin 2007, no pet.); Apodaca v.               served within the 120–day deadline that fails entirely to
Russo, 228 S.W.3d 252, 257–58, (Tex.App.-Austin 2007,              implicate the conduct of a defendant is not merely
no pet.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61               deficient, but is in effect an absent report or no report as
(Tex.2003) (dismissal under former article 4590i                   to that defendant. See id. at –––– – ––––, 2007 WL
warranted for “failure to comply” with report deadline by          4216606, at *2–3, at *6–8 (citing with approval Garcia v.
either failure to file or failure to file adequate report). This   Marichalar, 185 S.W.3d 70, 73 (Tex.App.-San Antonio
conclusion is apparent from the text and structure of              2005, no pet.) for the principle that an “expert report” that
section 74.351. Subsection (a) requires the claimant to file       mentioned other providers but not Garcia was in effect no
one or more “expert reports” not later than the 120th day          report as to Garcia and concluding that an extension was,
after the date the original petition was filed, and                therefore, improper); cf. Austin Heart, 228 S.W.3d at 284
subsection (b) mandates sanctions “[i]f, as to a defendant         (holding that timely report that “plainly discusses the
physician or health care provider, an expert report has not        conduct of the physician in question” but was deficient in
been served within the period specified by Subsection              failing to explicitly link the physician to the *361 report’s
(a).” “Expert report” is defined within section 74.351 as:         stated opinions regarding standard of care and causation
“a written report by an expert that provides a fair                was potentially curable and should be remanded for
summary of the expert’s opinions as of the date of the             consideration of whether a subsection (c) extension
report regarding applicable standards of care, the manner          should be granted).
in which the care rendered by the physician or health care

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



Recently, the Texas Supreme Court has laid to rest any
question as to whether the availability of interlocutory
review of an order denying relief under section 74.351(b)
differs depending on whether the motion’s grounds relate         Dr. Adame’s report
to (1) the absence of any timely-served expert report, (2) a     We turn now to Dr. Bogar’s issue. Dr. Bogar asserts that
timely expert report that is nonetheless not “served” on a       the probate court abused its discretion in denying his
defendant because it is deficient as to one or more              section 74.351(b) motion because appellees failed to
statutory criteria, or (3) a timely expert report that is        “serve” him with an expert report. Specifically, Dr. Bogar
effectively “no report” as to a defendant because it fails to    urges that (1) Dr. Adame’s report did not represent a good
implicate that defendant’s conduct. The supreme court            faith effort to comply with the statutory requirements for
concluded, as we did on original submission, that it does        “expert reports” and, in fact, constituted no report as to
not. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08             him; and (2) Dr. Adame, as a pathologist, was not
(Tex.2008). A potential limitation on this right to appeal       qualified as an “expert” to evaluate Dr. Bogar’s
exists, however, where a timely expert report implicates a       performance as a rehabilitative *362 medicine specialist.
defendant’s conduct: the trial court, in its discretion, may     We need not reach the latter contention because we agree
grant an extension under section 74.351(c), in which case        that Dr. Adame’s report was deficient with regard to the
the order denying the motion under section 74.351(b) is          statutory requirements for expert reports.
not appealable. Tex. Civ. Prac. & Rem.Code Ann. §§
                                                                 [4] [5] [6]
51.014(a)(9), 74.351(b)-(c); see Ogletree, 262 S.W.3d at                 As noted above, the “expert report” or reports that
––––, 2007 WL 4216606, at * 3–4, 2007 Tex. LEXIS                 a health care liability claimant must serve under section
1028, at *6–8 (“If no report is served within the 120 day        74.351(a) must provide “a fair summary of the expert’s
deadline provided by 74.351(a), the Legislature denied           opinion as of the date of the report regarding the
trial courts the discretion to dismiss or grant extensions,      applicable standards of care, the manner in which the care
and a trial court’s refusal to dismiss may be immediately        rendered by the physician or health care provider failed to
appealed.... [But] even when a report is deemed not              meet the standards, and the causal relationship between
served because it is deficient, the trial court retains          that failure and the injury, harm, or damages claimed.”
discretion to grant a thirty-day extension, and the              Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A trial
Legislature explicitly stated that such orders are not           court, again, must grant a motion challenging the
appealable.... [I]f a deficient report is served and the trial   adequacy of a report only if the report “does not represent
court grants a thirty-day extension, that decision—even if       an objective good faith effort to comply” with this
coupled with a denial of a motion to dismiss—is not              definition of “expert report.” Id. § 74.351(l ). To
subject to appellate review.”). In other words, an order         constitute a “good faith effort,” the report must provide
denying relief under subsection (b) is immediately               enough information to fulfill two purposes: (1) it must
appealable unless the trial court has discretion under           inform the defendant of the specific conduct the plaintiff
subsection (c) to grant a 30–day extension and actually          has called into question; and (2) it must provide a basis
does so.                                                         for the trial court to conclude that the claims have merit.
                                                                 Austin Heart, 228 S.W.3d at 279 (citing Bowie Mem’l
Here, Dr. Bogar filed objections to Dr. Adame’s expert           Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American
report within 21 days of service, see Tex. Civ. Prac. &          Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
Rem.Code Ann. § 74.351(a), and a motion, after the 120–          S.W.3d 873, 879 (Tex.2001)). Although a report need not
day deadline had expired, explicitly invoking subsection         marshal all of a claimant’s proof, it must include the
(b) and asserting that the probate court should dismiss          expert’s opinion on each of the elements identified in
appellees’ claim against him with prejudice and award            section 74.351. Id. (citing Palacios, 46 S.W.3d at 878). It
attorney’s fees and costs for failure to file “a statutorily     is not enough for the report merely to state the expert’s
defined expert report” by the deadline. See id. §                conclusions about the statutory elements. Id. (citing
74.351(b). The probate court denied that motion without          Palacios, 46 S.W.3d at 879). “Rather, the expert must
granting an 30–day extension. Id. § 74.351(b), (c). That         explain the basis of his statements to link his conclusions
order “denies all or part of the relief sought by a motion       to the facts.” Id. (quoting Bowie Mem’l, 79 S.W.3d at 52)
under Section 74.351(b),” and we have subject-matter             (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
jurisdiction to adjudicate Dr. Bogar’s appeal from that          (Tex.1999)).
order. Id. § 51.014(a)(9); see Lewis, 253 S.W.3d at 207;
                                                                 [7]
Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *2–                Importantly, because the statute dictates what is
3, 2007 Tex. LEXIS 1028, at *6–8; Andra, 173 S.W.3d at           required in the report, the only information relevant to
186–87. We accordingly deny appellees’ motion to                 determining whether a report complies with the statute is
dismiss Dr. Bogar’s appeal.                                      that within “the four corners” of the report. Id. (citing

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



Palacios, 46 S.W.3d at 878). This requirement “precludes                  with the Duragesic patch, her dose
a court from filling gaps in a report by drawing inferences               was reduced back to 25 mcg. She
or guessing as to what the expert likely meant or                         was also given Protonix for
intended.” Id. (citing Bowie Mem’l, 79 S.W.3d at 53).                     gastrointestinal         prophylaxis.
                                                                          Despite a fairly stable hospital
[8]
   We review a trial court’s ruling on a section 74.351(b)                course, her pain increased. On
motion under an abuse of discretion standard. Palacios,                   January 7, 2005, after her records
46 S.W.3d at 877–78. A trial court abuses its discretion                  were reviewed and she was cleared
when it acts in an arbitrary or unreasonable manner or                    for surgery, she was taken to the
acts without reference to any guiding rules or principles.                operating            room          at
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,                     Seton/Brackenridge Hospital for
241 (Tex.1985). A clear failure by the trial court to                     open reduction and internal fixation
analyze or apply the law correctly also constitutes an                    of her left femur. Her surgery went
abuse of discretion. Walker v. Packer, 827 S.W.2d 833,                    well and she was transferred back
840 (Tex.1992).                                                           to HealthSouth Rehabilitation
                                                                          Hospital of Austin on January 8,
The document prepared by Dr. Adame recites his                            2005. She resumed her medical
qualifications and concludes that “I am qualified based on                regimen along with physical and
my education, training and experience to offer an expert                  occupational therapy. Her pain
opinion regarding the cause and mechanism of death of                     persisted and she was taken off of
Mrs. Katherine Ramirez Guerrero. As a pathologist, I am                   Duragesic patch post surgery.
familiar with the standard of care required of physicians                 OxyContin was added to her
not to prescribe drugs either alone or in combination that                therapy, initially at 10 mg and later
will cause a fatal overdose.” “Such conduct,” Dr. Adame                   increased to 20 mg. She had bouts
adds, “falls below the standard of care required of                       of constipation and loose stool
physicians.”                                                              which was medically managed. On
                                                                          January 12, 2005 at 9:34 p.m. she
Dr. Adame then lists the medical records and other                        experienced          cardiopulmonary
materials he had reviewed, and summarizes Ms.                             arrest. Despite cardiopulmonary
Guerrero’s medical history. Dr. Adame notes that Ms.                      resuscitation until 10:13 p.m., she
Guerrero was 76 years of age, and had a “past medical                     was pronounced dead.
history of hyperlipidemia, *363 osteoarthritis, poorly
controlled hypertension, and chronic dizziness.” He           Dr. Adame then summarizes the “significant findings” of
recounts that Ms. Guerrero had complained of left hip         the autopsy report from the Travis County Medical
pain following a December 25, 2004 fall and had been          Examiner’s Office, including “the conclusions ... that
“admitted to Seton/Brackenridge Hospital after is was         Mrs. Guerrero died as a result of an overdose of
determined that she had a nondisplaced fracture of the left   oxycodone and propoxyphene.”
femur,” but “[i]t was also determined at that time, that no
surgical intervention was needed.” Adame then states:         Adame then states his “opinions and conclusions.” He
                                                              begins: “I concur with the autopsy conclusions.” He
            Her     medical     problems     and              observes that the medical examiners “performed a
            rehabilitation were managed by                    complete autopsy with toxocological analysis of blood,
            HealthSouth           Rehabilitation              vitreous humor, and urine,” and references certain
            Hospital of Austin. She was                       autopsy findings. Dr. Adame describes the composition
            transferred to that facility on                   and effect of oxycodone and propoxyphene as various
            December 28, 2004. She was                        dosing levels, including the levels indicative of toxicity
            placed on a Duragesic patch at 25                 and death. Drawing on these observations, he states the
            mcg on December 29, 2004. It was                  following:
            increased to 50 mcg on December
            30, 2004 because of continued                       Mrs. Guerrero had postmortem blood oxycodone
            significant pain. She was also given                concentration of 0.25 mg/L. This level and the clinical
            her usual home medications                          findings of nausea and labored breathing (noted in
            including     Doxepin,     Norvasc,                 nursing notes shortly before her death) indicates that
            Zescril, Tenormin, and Imdur.                       the oxycodone was inducing respiratory depression.
            Because of significant drowsiness
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Bogar v. Esparza, 257 S.W.3d 354 (2008)



      .....                                                       [the patient] more closely, restrained him more securely,
                                                                  or done something else entirely”). In essence, Dr.
      Mrs. Guerrero had postmortem blood propoxyphene             Adame’s report is a second autopsy report, opining about
      levels of 1.0 mg/L. This concentration of propoxyphene      the cause of Ms. Guerrero’s death without explaining who
      and the clinical findings of nausea, labored breathing,     caused it or how. See Sherman v. Austin State Hosp., No.
      and cardiac arrest (noted in nursing notes shortly before   03–05–00296–CV, 2006 WL 305300, at *1, 2006
      her death) indicates that the propoxyphene was              Tex.App. LEXIS 1115, at *30–4 (Tex.App.-Austin 2006,
      inducing respiratory depression, cardiac arrhythmia,        pet. denied) (mem.op.)(“A report finding only the cause
      and circulatory collapse and subsequent death. In           of death does not satisfy the statutory requirements.”),
      addition, the respiratory depression was exacerbated by     cert. denied, 549 U.S. 1133, 127 S.Ct. 976, 166 L.Ed.2d
      the high concentrations of oxycodone (see above).           740 (2007). We hold that the probate court abused its
                                                                  discretion in denying Dr. Bogar’s motion for sanctions
Dr. Adame then concludes:                                         under section 74.351(b). We sustain Dr. Bogar’s issue.
      In summary, Mrs. Guerrero had toxic levels of
      oxycodone along with lethal levels of propoxyphene
      which caused her *364 demise. The mechanism of              Remedy
      death was respiratory depression, cardiac arrhythmia,       [10]
                                                                       In the probate court, appellees requested that, in the
      and circulatory collapse. Additionally, autopsy             event Dr. Adame’s report was found deficient, the court
      examination failed to demonstrate an anatomic cause of      grant them a discretionary 30–day extension under section
      death.                                                      74.351(c) to enable them to cure any deficiencies in the
                                                                  report. See Tex. Civ. Prac. & Rem.Code Ann. §
      All of my opinions above are predicated upon a              74.351(c). Because the probate court held that Dr.
      reasonable medical probability.                             Adame’s report “is sufficient in meeting the requirements
[9]                                                               of ... Ch. *365 74,” it did not reach the extension issue. As
     Dr. Adame’s report fails to comply with the                  earlier noted, trial courts have discretion to grant
requirements of section 74.351. Most notably, it does not         extensions under subsection (c) where “an expert report
identify in any way the person or persons whose conduct           has not been served within the period specified by
is the subject of any of his opinions regarding standard of       Subsection (a) because elements of the report are found
care, causation, and death. We have held that where a             deficient.” See id. § 74.351(c). Conversely, where an
defendant is not identified at least in some manner within        expert report has not been “served” as to a defendant
the “four corners” of the report, the report is, for that         within the 120–day period because no report is timely
reason alone, deficient as to that defendant because it           served or a report fails to implicate the defendant’s
would require the reader to infer or make an educated             conduct, the trial court has no discretion but to dismiss
guess as to whose actions the expert is complaining.              upon a section 74.351(b) motion. Ogletree, 262 S.W.3d at
Austin Heart, 228 S.W.3d at 281; Apodaca, 228 S.W.3d              ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028,
at 257–58; see Marichalar, 198 S.W.3d at 255.1 The                at *6 (citing Marichalar, 185 S.W.3d at 73). In Austin
report likewise fails to describe the standard of care            Heart, we discerned from this statutory scheme legislative
potentially applicable to Dr. Bogar, other than a broad           intent that in “at least some situations where a timely
reference to “the standard of care required of physicians         report is deficient [but not entirely absent or no report] ...
not to prescribe drugs either alone or in combination that        the trial court should consider whether the deficiency is
will cause a fatal overdose,” which he never applies or           such that it warrants allowing a cure period.” 228 S.W.3d
analyzes in light of specific facts and circumstances.            at 284. Because we concluded that the report at issue in
Further, Dr. Adame never describes how Dr. Bogar might            the case was deficient as opposed to no report regarding
have breached a standard of care or link such a breach to         the physician defendant, we deduced that subsection (c)
Ms. Guerrero’s death. See Jernigan v. Langley, 195                required us to remand to the trial court, in lieu of
S.W.3d 91, 93–94 (Tex.2006) (affirming dismissal under            rendering a judgment of dismissal and sanctions, to afford
former article 4590i where report made only “passing              the court the opportunity to exercise its discretion whether
mention” of defendant physician and failed to state how           to grant a 30–day extension. Id. Appellees urge that the
he breached the standard of care or how his alleged               same appellate relief is appropriate here if we reverse the
breach caused injury); see also Palacios, 46 S.W.3d at            probate court’s order denying Dr. Bogar’s section
879–80 (conclusory statement that “precautions to prevent         74.351(b) motion.
[patient’s] fall were not properly utilized” did not
sufficiently apprise physician whether the expert believed        Our disposition of this question turns on whether the
that the standard of care required him “to have monitored         flaws in Dr. Adame’s report render it merely deficient

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



with respect to the statutory criteria or, as Dr. Bogar        report that links Dr. Kessler to Dr. Cororve’s opinions
argues, render the report no report as to him. If we hold      regarding the breach of the standard of care and causation
the former, we would, under Austin Heart, remand to            any more than Dr. Rodgers or the other ‘various
afford the trial court the opportunity to exercise its         physicians’ references.” Id. at 281. Although we
discretion whether to grant a 30–day extension under           emphasized that “a report’s adequacy under section
section 74.351(c) to cure the deficiency. If we conclude       74.351 does not depend on whether the expert uses any
that Dr. Adame provided no report as to Dr. Bogar, we          particular magic words such as ‘the standard or care was
would instead render the judgment the trial court should       breached by Dr. Kessler,’ ” we observed that “Dr.
have rendered—dismissal. Austin Heart, 228 S.W.3d at           Cororve’s report is silent as to whether a single physician,
284; see Ogletree, 262 S.W.3d at ––––, 2007 WL                 multiple physicians, or all physicians mentioned in the
4216606 at *3, 2007 Tex. LEXIS 1028, at *8–9 (“If no           report failed to meet the standard of care and caused
report is served within the 120 day deadline provided by       injury to Mr. Webb.” Id. at 281–82. Nonetheless, we
74.351(a), the Legislature denied trial courts the             distinguished Dr. Cororve’s deficient report from the “no
discretion to dismiss or grant extensions....”). We            report” found in Marichalar:
accordingly compare Dr. Adame’s report to those in other
cases under section 74.351 in which the distinction              Here, a timely report plainly discusses the conduct of
between a timely report constituting no report versus a          the physician in question and the report discusses
merely deficient report has been addressed.                      opinions on the standard of care and causation that
                                                                 could be linked to the conduct of the physician set out
In Marichalar, the plaintiff asserted claims for medical         in the report, but simply are not. The report is not
negligence relating to a sponge that was left in her body        deficient because it does not relate to Dr. Kessler at all.
during abdominal surgery. She named as defendants three          It is deficient because the link between Dr. Kessler’s
physicians—Prieto, Garcia–Arecha, and Garcia—two                 conduct and the expert’s conclusions is not expressly
nurses, and the hospital. Marichalar timely served an            stated. The report in this case is, therefore, some report
expert report prepared by an obstetrician-gynecologist,          as to Dr. Kessler (among others), but it is not sufficient
Dr. Miller, in which he stated that Prieto, the surgeon, and     to meet all of the requirements of section 74.351. It is
Garcia–Arecha, the assistant surgeon, deviated from the          an example of what section 74.351(c) refers to as a
standard of care because they allowed “the lap sponges           report that “has not been served within the [120–day
not to be counted correctly and then noted in the chart that     period for serving reports] because elements of the
they were correct” and then “failing to diagnose and             report are found deficient.”
remove the laparotomy sponge in a timely manner.”
However, neither Dr. Miller nor a nurse expert implicated      Id. at 284; see also id. at 285 (suggesting that “[i]f the
Dr. Garcia, as opposed to the other providers, in their        expert is of the opinion that Dr. Kessler’s conduct
respective reports. See Garcia v. Marichalar, 198 S.W.3d       breached the standard of care and caused injury, he will
250, 253 (Tex.App.-San Antonio 2006, no pet.). The San         not have to generate a new, previously nonexistent report.
Antonio Court of Appeals concluded that “with regard to        He will simply have to add the link between his already
Garcia, there was no timely served expert report,”             stated conclusions and the already referenced conduct of
requiring the trial court to dismiss Marichalar’s claims       Dr. Kessler. Therefore, the circumstances here are not
against Garcia and depriving it of any discretion to grant a   similar to the situation where a plaintiff simply has
30–day extension. Marichalar, *366 185 S.W.3d at 73;           missed the deadline for serving a report with respect to
Marichalar, 198 S.W.3d at 252.                                 the conduct of a physician.”).

In Austin Heart, the expert, Dr. Cororve, repeatedly           More recently, the supreme court in Ogletree, although
referred in the report’s background section to defendant       apparently endorsing the “no report” concept of
physician Dr. Kessler by name and discussed various acts       Marichalar, see Ogletree, 262 S.W.3d at ––––, 2007 WL
by him and other identified and unidentified caregivers.       4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing
However, Dr. Cororve did not explicitly link Dr.               Marichalar with approval), also indicated that the
Kessler’s acts to Cororve’s subsequent opinions regarding      omission of a defendant’s name would not categorically
the applicable standard of care, how it was breached, and      render a report “no report” as to that defendant. The
how the breach caused injury. Austin Heart, 228 S.W.3d         plaintiffs alleged negligence by Dr. Jan Ogletree, a
at 280–81. We concluded that the report was deficient          urologist, in performing a urinary catheterization
because “it requires the reader to infer or make an            procedure on John Burke Matthews in a manner causing
educated guess that Dr. Cororve [the expert] is identifying    him injuries and ultimate death. The plaintiff timely
Dr. Kessler as the physician who breached the standard of      served the one-page expert report of Dr. Richard Karsh,
care and caused injury” and that “[t]here is nothing in the    which stated, in relevant part:

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



  In my opinion (but I would have to defer to a urologist       “where there is an absence of a report, rather than a report
  on this) given the inability of the nursing staff to pass     that implicated a provider’s conduct but was somehow
  the Foley catheter into the bladder and the necessity         deficient.” Ogletree, 262S.W.3d at –––– n. 2, 2007 WL
  *367 for the urologist to utilize a stiff metallic “wire”     4216606, at *7 n. 2, 2007 Tex. LEXIS 1028, at *7 n. 2.
  to transverse the urethra, such manipulation and              These statements imply that a defendant provider’s
  catherization should have been performed under                conduct can be “implicated” by a report even if the
  fluoroscopic guidance. Had that been done the                 provider is not explicitly mentioned by name and that
  perforation might well have been avoided but certainly        although such an omission might render the report
  could have been diagnosed at the outset, with the             deficient, it would not for that reason alone render the
  likelihood of a smaller tear having resulted.                 report “no report” as to the provider.2

  If not recognized in a timely manner, such a tear could       *368 [11] Turning to Dr. Adame’s report, it is, as noted,
  lead to long-term problems, including bladder (or, if a       essentially a second autopsy report, opining about the
  urethral tear, urethral) dysfunction, infection, etc. It is   cause of Ms. Guerrero’s death without explaining who
  apparent that a cystogram was performed shortly after         caused it or how. There are only cursory references to the
  the catherization, although the exact timetable is            conduct of anyone connected to Ms. Guerrero’s care. In
  unclear; nor do I have records to determine whether or        the “History” section of his report, Dr. Adame notes that
  not the response of the physician to the tear was             after her fall, Ms. Guerrero’s “medical problems and
  appropriate. (Of course, those might be best reviewed         rehabilitation   were     managed      by    HealthSouth
  by a urologist).                                              Rehabilitation Hospital of Austin,” where she was later
                                                                “transferred back ... on January 8, 2005” following her
Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *1,           hip surgery at Brackenridge. Adame then recounts:
2007 Tex. LEXIS 1028, at *2–3. Dr. Ogletree complained
that Dr. Karsh, as a radiologist, was not qualified to                      She resumed on her medical
render opinions on a urologist’s standard of care. Because                  regimen along with physical and
of this defect, Ogletree asserted, no “expert report” was                   occupational therapy. Her pain
“served” within the 120–day deadline, the trial court had                   persisted and she was taken off of
no discretion to grant a 30–day extension and its denial of                 Duragesic patch post surgery.
his section 74.351(b) motion should therefore be                            OxyContin was added to her
immediately appealable. The supreme court, however,                         therapy, initially at 10 mg and later
characterized this type of complaint as a report being                      increased to 20 mg. She had bouts
“deemed not served because it is deficient,” and subject to                 of constipation and loose stools
a discretionary 30–day extension under section 74.351(c).                   which were medically managed.
Id. at ––––, 2007 WL 4216606, at *3, at *7–8. It held that                  On January 12, 2005, at 9:34 p.m.,
“[b]ecause a report that implicated Dr. Ogletree’s conduct                  she experienced cardiopulmonary
was served and the trial court granted an extension, the                    arrest. Despite cardiopulmonary
court of appeals could not reach the merits of its motion                   resuscitation until 10:13 p.m., she
to dismiss.” Id. at ––––, 2007 WL 4216606, at *4, at *9                     was pronounced dead.
(emphasis added).
                                                                In his “opinions and conclusions” regarding the cause of
Although the supreme court did not squarely address the         death, Dr. Adame does not elaborate on the specific
significance of Dr. Karsh’s omission of Dr. Ogletree’s          conduct or persons to whom he attributes the overdose
name from his report, it characterized the report as            other than vaguely alluding to “clinical findings” of
“directed solely to Dr. Ogletree’s care (although it did not    “nausea, labored breathing, and cardiac arrest” that, to
mention him by name),” id. at ––––, 2007 WL 4216606,            him, confirmed that the amounts and combination of
at *1, at *2, and “implicating” Dr. Ogletree’s conduct. Id.     oxycodone and propoxyphene were inducing respiratory
at ––––, 2007 WL 4216606, at *4, at *9 (“a report that          depression, cardiac arrhythmia, circulatory collapse, and
implicated Dr. Ogletree’s conduct”). The supreme court’s        subsequent death.
references to a report “implicating” a provider’s conduct
appears to allude to section 74.351(a)’s 21–day deadline        Although the distinction between “no report” and a
by which “[e]ach defendant physician or health care             deficient-but-potentially curable report can be elusive, we
provider whose conduct is implicated in a report must file      conclude that Dr. Adame’s report is no report as to Dr.
and serve any objection to the sufficiency of the report.”      Bogar. Dr. Adame, again, never mentions Dr. Bogar in his
Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis           report. Although that omission alone may not alone
added). Elsewhere the court distinguishes between cases         render the report “no report,” the report entirely fails to

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



implicate Dr. Bogar’s conduct—if any person’s conduct.                     recovery. It may be that once
The report is simply silent regarding how the overdose                     discovery is complete and the case
occurred and who, if anyone, was responsible for it. Dr.                   is tried, there is no need for expert
Adame does not identify any acts or omissions, by                          testimony.... But the Legislature
persons identified or unidentified, to which he attributes                 envisioned that discovery and the
the overdose. Cf. Ogletree, 262 S.W.3d at ––––, 2007 WL                    ultimate determination of what
4216606, at *1, 2007 Tex. LEXIS 1028, at *2–4 (report                      issues are submitted to the
opining that “the urologist” should have performed                         factfinder should not go forward
manipulation and catheterization under fluoroscopic                        unless at least one expert has
guidance and attributing patient’s injuries to same). Nor,                 examined the case and opined as to
even assuming Adame’s passing references to Ms.                            the applicable standard of care, that
Guerrero’s “medical regimen” and receipt of oxycodone                      it was breached, and that there is a
could implicate the conduct of any person, would his                       causal relationship between that
report implicate Dr. Bogar’s conduct as opposed to                         failure to meet the standard of care
unidentified agents of Healthsouth. See Marichalar, 185                    and the injury, harm, or damages
S.W.3d at 73; Marichalar, 198 S.W.3d at 252. Dr. Adame                     claimed. Thus, because res ipsa
cannot cure these omissions simply by “add[ing] the link                   loquitur is an evidentiary rule while
between his already stated conclusions and *369 the                        the expert report is a threshold
already referenced conduct” of Dr. Bogar. See Austin                       requirement for bringing a lawsuit,
Heart, 228 S.W.3d at 285. There is nothing in the report                   we do not believe that the
regarding Dr. Bogar that could be linked to anything.                      Legislature intended for section
Consequently, Dr. Adame could “cure” the deficiencies in                   74.201 to eliminate the procedural
his report only by “generat[ing] a new, previously                         requirement of an expert report at
nonexistent report” as to Dr. Bogar. See id. Such a                        the commencement of litigation.
remedy, as we have explained, is proscribed by section
74.351.3                                                       See Marichalar, 198 S.W.3d at 255–56. (internal citations
                                                               and quotes omitted). We find this analysis persuasive.
[12]                                                           Consequently, even if res ipsa loquitur applied to
    In their motion for rehearing and reconsideration en
banc, appellees acknowledge that “[t]he report did not         appellees’ claims against Dr. Bogar, it would not excuse
assign blame for the victim’s harm to a specific physician     their failure to serve him with an expert report.
or hospital employee by name” and is silent regarding
“who exactly did what.” They suggest that “Dr. Adame’s
report shows a fatal overdose of medications given to an
inpatient in the hospital, a lapse with all the hallmarks of   Constitutional issues
                                                               [13]
res ipsa loquitur ” that “create[s] a powerful presumption          In their motion for rehearing and for reconsideration
that the overdoses were the result specifically of             en banc, appellees attribute their noncompliance to
negligence by the treating physician of record.” Even          chapter 74’s *370 limitations on discovery, urging that
assuming res ipsa loquitur applied in this case, this          “the report could not have [complied] without compulsory
evidentiary presumption would not create an exception to       process, as the precise facts regarding which named
section 74.351’s expert report requirement. The                individuals administered each dose, failed to comprehend
Marichalar court rejected a similar contention in a            the danger or catch the error, or failed to remedy its
“sponge case”—surgeons left surgical sponges inside the        effects, were then and remain today in the sole possession
plaintiff during abdominal surgery. The court explained:       of the defendants.” Section 74.351(s) provides:

                                                                 Until a claimant has served the expert report and
            While section 74.201 allows for the
                                                                 curriculum vitae as required by Subsection (a), all
            application of res ipsa loquitur, we
                                                                 discovery in a health care liability claim is stayed
            do not interpret it as an exception
                                                                 except for acquisition by the claimant of information,
            to section 74.351’s expert report
                                                                 including medical or hospital records or other
            requirement. Res ipsa loquitur is an
                                                                 documents or tangible things, related to the patient’s
            evidentiary rule. In contrast, section
                                                                 health care through:
            74.351’s expert report requirement
            establishes a threshold over which                     (1) written discovery as defined in Rule 192.7, Texas
            a claimant must proceed to                             Rules of Civil Procedure;
            continue a lawsuit; it does not
            establish a requirement            for
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Bogar v. Esparza, 257 S.W.3d 354 (2008)



       (2) depositions on written questions under Rule 200,      in particular, we are mindful of two general principles.
       Texas Rules of Civil Procedure; and                       First, “there are constitutional limitations upon the power
                                                                 of courts ... to dismiss an action without affording a party
       (3) discovery from nonparties under Rule 205, Texas       the opportunity for a hearing on the merits of his [or her]
       Rules of Civil Procedure.                                 cause.” Thoyakulathu v. Brennan, 192 S.W.3d 849, 855
                                                                 (Tex.App.-Texarkana 2006, no pet.) (quoting Walker, 111
Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s).                     S.W.3d at 66 (quoting TransAmerican Nat. Gas Corp. v.
“Notwithstanding any other provision of this section, after      Powell, 811 S.W.2d 913, 917–18 (Tex.1991))). Second,
a claim is filed all claimants, collectively, may take not       the filing of a frivolous lawsuit can be misconduct subject
more than two depositions before the expert report is            to sanction. Id. (citing Palacios, 46 S.W.3d at 878).
served as required by Subsection (a).” Id. § 74.351(u).          “[O]ne purpose of the expert-report requirement is to
These provisions thus bar oral depositions of parties and        deter frivolous claims.” Walker, 111 S.W.3d at 66. “The
allow only two oral depositions of non-parties before the        Legislature has determined that failing to timely file an
expert report is served. They also bar pre-suit depositions      expert report, or filing a report that does not evidence a
to investigate potential claims under rule 202. In re            good-faith effort to comply with the definition of an
Jorden, 249 S.W.3d 416, 420 (Tex.2008).                          expert report, means that the claim is either frivolous, or
[14] [15]
                                                                 at best has been brought prematurely. This is exactly the
        Appellees urge that their inability to orally depose     type of conduct for which sanctions are appropriate.”
Dr. Bogar before serving their expert report creates “an         Palacios, 46 S.W.3d at 878. Consequently, the supreme
intolerable procedural conundrum” or “catch–22” by               court rejected a due-process challenge to former article
preventing them from obtaining the very information they         4590i’s mandatory dismissal of health care liability
need to prepare a sufficient expert report.4 This                claims for failure to comply with statutory requirements.
“conundrum,” appellees assert, imposes an “impossible            Walker, 111 S.W.3d at 66 (“The Gutierrezes’ failure to
condition” on medical malpractice claimants’ property            file an adequate report thus raised the presumption that
rights in their causes of action that violates the due           their claims were frivolous, or at best, premature.... We do
process clause of the fourteenth amendment to the United         not believe the Constitution requires prior notice that the
States Constitution and due course of law under article I,       law is serious about a clearly stated consequence for
section 19 of the Texas Constitution. See U.S. Const.            failing to comply with its terms. The sanction imposed ...
amend. XIV; Tex. Const. art. I, § 19.5 Appellees                 was a direct result of their failure to file an expert report
acknowledge that “Texas courts construe Article I,               that complied with the statutory requirements.
Section 19, in line with the federal due process                 Consequently, dismissal was appropriate and did not
guarantees” and that “[s]tandards for Texas constitutional       violate the due process clause, even in the absence of a
claims regarding access to the courts are the same under         notice of noncompliance prior to the motion to dismiss.”);
due process and open courts.” See University of Tex. Med.        see Brennan, 192 S.W.3d at 855–56 (applying Walker to
Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995); Sax v.             section 74.351).
Votteler, 648 S.W.2d 661, 664 (Tex.1983).6 Appellees
stop short of “contend[ing] that the expert report               Turning to appellees’ specific challenge, they have the
requirement must be invalidated for all cases,” but instead      burden of establishing that section 74.351’s discovery
urge us to “construe Section 74.351 to avoid a                   limitations have in fact prevented them from satisfying
constitutional problem” by either “declar[ing], for cases        the statute’s expert-report requirements and pursuing their
where medical negligence by one or more defendants               claim. See McGlothlin v. Cullington, 989 S.W.2d 449,
*371 is clear but where the plaintiff cannot allocate fault      453 (Tex.App.-Austin 1999, pet. denied) (burden on
among them without discovery, that Section 74.351(s)             claimant asserting open-courts violation is to provide
does not stay the discovery necessary to obtain the fault        sufficient evidence that the expert report requirement, and
allocation facts that would perfect the required expert          not her own inaction, actually functioned to keep her from
report; or declar[ing] the expert report in such a case          pursuing her claim). Appellees suggest in their motion
sufficient without those facts, since they are unnecessary       that they were forced to “prepare their report[ ] on
to demonstrate at the threshold that the case has merit.”7       medical records alone” and that these records were
[16] [17] [18] [19]
                                                                 inadequate, but do not suggest they ever actually pursued
              We begin with the presumption that section         the discovery permitted under section 74.351(s) beyond
74.351 is constitutional. Walker, 111 S.W.3d at 66.              serving requests for disclosures at some unspecified point
Additionally, the party challenging the constitutionality of     in *372 time.8 Nor is there any evidence in the record to
a statute bears the burden of establishing that the              support such an assertion. We observe that section
enactment fails to meet constitutional requirements. Id.         74.351(s) and (u) authorize claimants to obtain discovery
With regard to restrictions on health care liability claims      via not only requests for disclosure, but interrogatories,

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



requests for production, requests for admissions, and          specifically of *373 negligence by the treating physician
depositions on written questions to parties (i.e., forms of    of record,” whom they assert was Dr. Bogar. We disagree
discovery that could have been directed to Dr. Bogar);         that it is irrational, in light of the legislature’s goal of
and rule 205 requests for production, depositions on           curtailing frivolous health care liability claims, for it to
written questions, and up to two oral depositions of non-      require that appellees serve an expert report explaining
parties.9 The rules further provide mechanisms for             why or how this outcome was actually caused by the
enforcing compliance with discovery requests.10 Appellees      conduct of Dr. Bogar, as opposed to some other person or
dismiss the significance of “[t]he limited written             health care provider. See Walker, 111 S.W.3d at 66
discovery that Section 74.351(a) nominally permits before      (explaining that the plaintiffs’ failure to comply with the
service of the expert report,” asserting that it is “widely    expert-report requirements “raised the presumption that
understood not to extend beyond the medical records            their claims were frivolous, or at best, premature” and
specifically mentioned in that subsection, and defense         dismissal did not violate due process); Marichalar, 198
counsel in health care liability actions uniformly refuse      S.W.3d at 254–55 (“Section 74.351(r)(6) requires that an
any other written discovery.” If that could be so, it is not   expert report explain how the care rendered by the
because of anything the legislature actually provided in       physician failed to meet the applicable standard of care
section 74.351, nor do appellees present evidence that any     and the causal relationship between that failure and the
such application of section 74.351(s) in fact prevented        injury suffered by the claimant.”); see also Brennan, 192
them from obtaining any necessary discovery they had           S.W.3d at 855–56 (applying Walker to reject as-applied
actually sought. See Brennan, 192 S.W.3d at 854 n. 5           challenge to expert-report requirement where claimant
(rejecting similar due-process argument “premised on           had attempted to serve report timely, but fax machine
[claimant’s] failure to receive discovery from another         failed; “Section 74.351 need not provide an exception
party” as “ignor[ing] the remedies available to him to         geared toward such misfortune in order to provide
enforce lawful discovery requests”); see also Marichalar,      constitutionally adequate safeguards.”).
198 S.W.3d at 254 n. 1 (observing that “if the medical
records are indeed conflicting” as to assistant surgeon’s      We accordingly reject appellees contentions that our
identity, as counsel had orally contended, “Marichalar         application of section 74.351 on the present record
could have propounded discovery to Dr. Garcia to               violates due process or due course of law.
discovery whether he was the assistant surgeon ... [a]nd if
Dr. Garcia failed to timely answer the discovery requests,
Marichalar could have moved to compel his answers.”).
Like the Brennan court, “we can certainly imagine a due
process deprivation to a health care liability claimant                             CONCLUSION
pinned between a firm expert report deadline and a
hypothetical absence of discovery tools,” but must             As the Texas Supreme Court recently acknowledged, the
similarly conclude that appellees have not carried their       requirements of section 74.351(b) “can lead to seemingly
burden of demonstrating that they were denied due              harsh results.” Ogletree, 262S.W.3d at ––––, 2007 WL
process by such a situation here. Brennan, 192 S.W.3d at       4216606, at *3, 2007 Tex. LEXIS 1028, at *3. Here, they
856 n. 8; see McGlothlin, 989 S.W.2d at 453 (claimant’s        require us to render judgment dismissing appellees’
affidavit made “no mention of any actual attempt to            claims against Dr. Bogar with prejudice and awarding Dr.
obtain an expert report,” in lieu of article 4590i bond        Bogar attorney’s fees and costs. See Tex. Civ. Prac. &
requirement, “only some perceived financial barrier”).         Rem.Code Ann. § 74.351(b). Further, our performance of
                                                               our duty to effectuate these legislative mandates does not,
[20]
    Appellees also question whether there is a rational        on this record, exceed constitutional limitations. We
relationship between chapter 74’s expert-report                accordingly reverse and render a judgment of dismissal
requirement as applied here and the legislature’s goal of      and remand to the probate court for a determination of the
discouraging frivolous lawsuits. See Lucas v. United           amount of the attorney’s fee award.
States, 757 S.W.2d 687, 691 (Tex.1988) (holding that it
was “unreasonable and arbitrary for the legislature to
conclude that arbitrary damage caps, applicable to all
claimants no matter how seriously injured, will help           Dissenting Opinion by Justice PATTERSON.
assure a rational relationship between actual damages and
the amounts awarded.”). This argument is predicated
upon appellees’ view that the bare fact Ms. Guerrero died      JAN P. PATTERSON, J., dissenting.
of a drug overdose while in the hospital “create[s] a
powerful presumption that the overdoses were the result

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



Given the length of time this accelerated interlocutory         care; he was the only doctor named in the lawsuit. An
appeal has been pending, I will adopt my prior dissent          autopsy established that Ms. Esparza, who was admitted
with an additional observation, substituting this opinion       for post-operative hip surgery rehabilitation, died of an
and dissenting to the denial of appellees’ motion for           overdose of Oxycodone and Vicodin. After a hearing, the
rehearing. In Palacios, the supreme court held that (i) a       trial court expressly found the report to be sufficient and
trial court’s decision whether to dismiss a case under this     denied the motion to dismiss.1
statute is reviewed for abuse of discretion, and (ii) to
constitute a good-faith effort to provide a fair summary of     The supreme court has recently held that an expert report
an expert’s opinions, “an expert report must discuss the        that implicates the doctor’s conduct, but fails to mention
standard of care, breach, and causation with sufficient         the doctor by name, is merely deficient and subject to the
specificity to inform the defendant of the conduct the          trial court’s discretionary power to grant a 30–day
plaintiff has called into question and to provide a basis for   extension as allowed under section 74.351(c). See
the trial court to conclude that the claims have merit.”        Ogletree v. Matthews, No. 05–0502, ––– S.W.3d ––––, ––
American Transitional Care Ctrs. v. Palacios, 46 S.W.3d         ––, ––––, 2007 WL 4216606, at *1, 4, 2007 Tex. LEXIS
873, 875 (Tex.2001) (predecessor statute). In that case,        1028, at *2, 14 (Tex. Nov. 30, 2007). While the majority
the court found that the trial court did not abuse its          recognizes this recent supreme court holding, it fails to
discretion in its ruling and reversed the court of appeals.     apply it to an expert report that plainly implicates
Based upon Palacios, I would hold that the trial court did      appellant’s conduct in prescribing a lethal dose of
not abuse its discretion here. For these reasons, I             Oxycodone and Vicodin—choosing instead to ignore the
respectfully dissent.                                           statutory discretion imparted to the trial court by the
                                                                legislature. See id.
The majority has stepped into both shoes of the trial court:
(i) overruling its determination that the expert report is      Although the trial court’s determination is not shielded
sufficient and the litigation should go forward, and (ii)       from review, we may not substitute our judgment for that
finding the report to be not just deficient, but “no report,”   of the trial court charged with a gatekeeping function in
thus foreclosing *374 an opportunity to cure any asserted       the first instance under this statute. Indeed, the trial court
deficiency. As the reviewing court, we are admonished           is charged not only with exercising its discretion in
that a trial court abuses its discretion if it acts in an       affirming or denying the motion to dismiss, but the trial
arbitrary or unreasonable manner without reference to           court may—in its discretion—grant a 30–day extension to
guiding rules or principles. See Garcia v. Martinez, 988        cure any deficiency. Tex. Civ. Prac. & Rem.Code Ann. §
S.W.2d 219, 222 (Tex.1999). When reviewing a trial              74.351(c) (West Supp.2007). Because the trial court here
court’s decision for an abuse of discretion, we recognize       found the report to be sufficient—and not deficient or “no
that such discretionary choices are left to a court’s           report”—it did not consider whether to grant a
judgment, and its judgment is to be guided by sound legal       discretionary extension to amend the report.
principles. Albemarle Paper Co. v. Moody, 422 U.S. 405,
416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting              I believe the trial court did not abuse its discretion in
United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807)          concluding that the report was sufficient. Because (i) the
(Marshall, C.J.)). We may not substitute our own                standard of review recognizes that there is a range of
judgment for that of the trial court. Bowie Mem’l Hosp. v.      decisions that are appropriate as long as the trial court
Wright, 79 S.W.3d 48, 52 (Tex.2002). While a trial              does not act in an arbitrary or unreasonable manner or
court’s failure to analyze and apply the law correctly          without reference *375 to guiding rules and principles,
would constitute an abuse of discretion, Walker v. Packer,      and (ii) the trial court acted in accord with the supreme
827 S.W.2d 833, 840 (Tex.1992), “[t]he test for abuse of        court’s holdings in Palacios,2 I would conclude that the
discretion is not whether, in the opinion of the reviewing      trial court was guided by and employed sound legal
court, the facts present an appropriate case for the trial      principles and properly denied the motion to dismiss. I
court’s action.... [I]t is a question of whether the court      would affirm the trial court’s order.
acted without reference to any guiding rules and
principles.” Downer v. Aquamarine Operators, Inc., 701          Alternatively, because the trial court found the report to
S.W.2d 238, 241–42 (Tex.1985). A trial court does not           be sufficient and not deficient or “no report,” I would
abuse its discretion merely because it decides a                follow this Court’s precedent in Austin Heart, P.A. v.
discretionary matter differently than an appellate court        Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.),
would in a similar circumstance. Id. at 242.                    and remand this cause for further proceedings to allow the
                                                                trial court to exercise its discretion and determine whether
The parties agree that Dr. Bogar was the physical               a 30–day extension should be granted.3
medicine rehabilitation doctor in charge of Ms. Esparza’s

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



By cherry-picking language from the supreme court’s            trial court under section 74.351(c), the appellees should
Ogletree opinion to support its admitted “elusive” line        be given a 30–day extension of time in order to cure any
between a deficient report and a “nonexistent” report, the     deficiencies in the expert report.1
majority overlooks the supreme court’s common sense
approach regarding expert reports that implicate a health      The majority reverses the trial court’s determination that
provider’s conduct: The supreme court reasoned that            Dr. Adame’s expert report is sufficient and renders
“while the 2003 amendments were intended to decrease           judgment of dismissal, holding that this report constitutes
claims, they do not mandate dismissal for deficient, but       “no report” as to Dr. Bogar and therefore that the trial
curable, reports.” Ogletree, 262 S.W.3d at ––––, 2007          court did not have discretion to allow a 30–day extension.
WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *9. In             See id. § 74.351(b) (stating that trial court shall dismiss
finding this report “no report,” we are beyond cherry-         claim if expert report has not been served within 120
picking and into hair-splitting for which the aim is not to    days); Ogletree v. Matthews, No. 06–0502, –––S.W.3d ––
seek the statutory mandate nor substantial justice.            ––, ––––, 2007 WL 4216606, at * 3, 2007 Tex. LEXIS
                                                               1028, at *8 (Tex. Nov. 30, 2007) (“If no report is served
I would, therefore, grant the motion for rehearing.            within the 120 day deadline provided by 74.351(a), the
                                                               Legislature denied trial courts the discretion to deny
                                                               motions to dismiss or grant extensions.”). If an expert
                                                               report fails to implicate the conduct of a particular
JAN P. PATTERSON, Justice, dissenting.                         defendant, it is treated as “no report” as to that particular
                                                               defendant. See Apodaca v. Russo, 228 S.W.3d 252, 257
For the reasons expressed in my dissenting opinion to this     (Tex.App.-Austin 2007, no pet.) (report that described
Court’s disposition of this case on rehearing, I               conduct of other doctors and health-care providers but
respectfully dissent from the denial of appellee’s motion      failed to mention appellee at all constituted “no report” as
for en banc reconsideration. See Bogar v. Esparza, No.         to appellee); Garcia v. Marichalar, 185 S.W.3d 70, 72–73
03–07–00037–CV, 257 S.W.3d 354 (Tex.App.-Austin                (Tex.App.-San Antonio 2005, no pet.) (report that focused
May 16, 2008) (Patterson, J., dissenting).                     on conduct of other defendants and did not mention
                                                               appellant at all was considered “no report” as to
                                                               appellant). However, an expert report that does not fully
                                                               satisfy the statutory criteria but is not so inadequate as to
DIANE HENSON, Justice, dissenting.
                                                               be deemed “no report” is treated as a deficient report, and
                                                               trial courts have discretion to allow parties an extension
The expert reports required by section 74.351 of the civil
                                                               of time in order to cure the deficiencies. See Ogletree, 262
practice and remedies code “are simply a preliminary
                                                               S.W.3d at ––––, 2007 WL 4216606, at *3, 2007 Tex.
method to show a plaintiff has a viable cause of action
                                                               LEXIS 1028, at *10 (“[A] deficient report differs from an
that is not frivolous or without expert support.” Kelly v.
                                                               absent report. Thus, even when a report is deemed not
Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th
                                                               served because it is deficient, the trial court retains
Dist.] 2008, no pet. h.). One of the benefits behind the
                                                               discretion to grant a thirty-day extension.”).
expert-report requirement is that the screening mechanism
frees up judicial resources to address non-frivolous
                                                               While Dr. Adame’s report does not mention Dr. Bogar by
claims. See House Comm. on Civil Practices, Bill
                                                               name, it unambiguously implicates Dr. Bogar’s conduct.
Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995) (noting
                                                               Unlike the reports in Apodaca, see 228 S.W.3d at 257, or
that predecessor statute to section 74.351 “would help
                                                               Marichalar, see 185 S.W.3d at 72–73, the report in the
focus judicial resources on legitimate claims”). The
                                                               present case does not implicate, identify, or describe the
present case, which arose after a patient *376 suffered a
                                                               conduct of any physicians or medical professionals other
fatal overdose of oxycodone and propoxyphene while
                                                               than Dr. Bogar. Furthermore, Dr. Adame’s report
receiving post-operative care for hip-replacement surgery,
                                                               describes “the standard of care required of physicians not
does not appear to be the type of meritless claim that the
                                                               to prescribe drugs either alone or in combination that will
legislature intended to prevent by imposing the gate-
                                                               cause a fatal overdose.” (Emphasis *377 added). The
keeping measure of the expert report.
                                                               report states that “[s]uch conduct falls below the standard
                                                               of care required of physicians,” and details how the levels
I join Justice Patterson’s dissent in holding that the trial
                                                               of oxycodone and propoxyphene found in Guerrero’s
court acted within its discretion in finding the expert
                                                               blood exceeded the amounts known to cause death. In
report sufficient, but write separately to further address
                                                               light of this language, it is clear from the four corners of
the majority’s failure to remand this case for a
                                                               the report that Dr. Adame is implicating the conduct of
determination of whether, in the discretion afforded to the
                                                               the physician who prescribed oxycodone and

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Bogar v. Esparza, 257 S.W.3d 354 (2008)



propoxyphene to Guerrero. See American Transitional                         opinion. The report’s failure on this
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878                    point is the kind of defect that the
(Tex.2001) (“[T]he only information relevant to the                         cure     provisions    of     section
inquiry is within the four corners of the document.”). See                  74.351(c) were designed to
also Ogletree, 262S.W.3d at ––––, 2007 WL 4216606at                         address.
*1, 2007 Tex. LEXIS 1028, at *2 (where expert report
implicated appellant’s conduct but did not mention              Id. at 282–83 (emphasis added).
appellant by name, report was merely deficient and
subject to extension allowed under section 74.351(c),           Significantly, the Austin Heart opinion also states, “Had
rather than “no report” as to appellant).                       Dr. Cororve referenced only actions by Dr. Kessler in the
                                                                background section of his report, the link between Dr.
An expert report does not have to meet the same                 Cororve’s opinions and the responsible physician might
requirements as evidence offered in a summary-judgment          be more apparent.” Id. at 281. The link between Dr.
proceeding or at trial, but is merely required to “discuss      Adame’s opinions and Dr. Bogar could not be more
the standard of care, breach, and causation with sufficient     apparent in the present case, where no other physicians or
specificity to inform the defendant of the conduct the          health-care professionals are named as defendants or
plaintiff has called into question.” Palacios, 46 S.W.3d at     mentioned in the expert report.
875, see also 879. The trial court, in its discretion, may
have reasonably concluded that Dr. Bogar was                    Furthermore, the Texas Supreme Court’s mandate that
sufficiently informed of the conduct that the plaintiff in      only information within the four corners of the expert
this case was calling into question—prescribing a               report *378 may be reviewed for sufficiency, see
combination of drugs in amounts that resulted in a fatal        Palacios, 46 S.W.3d at 878, does not necessarily preclude
overdose.                                                       the trial court from conducting an independent analysis of
                                                                the information contained in the report. In IHS
The majority’s holding in the present case conflicts with       Acquisition No. 140, Inc. v. Travis, No. 13–07–00481–
this Court’s holding in Austin Heart, P.A. v. Webb, 228         CV, 2008 WL 1822780, 2008 Tex.App. LEXIS 2950
S.W.3d 276 (Tex.App.-Austin 2007, no pet.), in which we         (Tex.App.-Corpus Christi Apr. 24, 2008, no pet. h.), the
held that an expert report’s failure to specifically identify   appellant argued that the trial court made an improper
a physician as having breached the standard of care or          inference about causation that extended outside of the
having caused the patient’s injury merely results in a          four corners of the expert report. The report failed to
deficient report, subject to the cure provisions of section     address a one-month gap between treatment of the
74.351(c), rather than “no report.” Id. at 282–83. The          patient’s eye abscess and her death, and the trial court
report in Austin Heart not only discussed the conduct of        commented that the gap was the time which “causes the
the appellant without identifying the appellant as having       abscess to grow in the system and proliferate.” Id. at * 3,
breached the standard of care or caused the injury, but         at *24. The court of appeals held that the trial court did
also discussed the conduct of various other physicians          not abuse its discretion in making such a comment, noting
without making it clear that the report related to the          that expert reports may contain some level of ambiguity
appellant physician. Id. at 280. Despite these omissions,       “that is subject to the independent analysis of the trial
this Court stated:                                              court.” Id. The court further stated:

             While we are of the view that Dr.                    [T]he trial court’s explanation was only beyond the
             Cororve’s report is deficient under                  ‘four corners’ of the report in the sense that the trial
             section 74.351 because it requires                   court explained medical concepts—such as abscess and
             the reader to make an educated                       cardiogenic shock—which Dr. Starer did not explain.
             guess regarding an essential                         The trial court, however, did not propose unique
             element, we are also aware that the                  causation theories that were not discussed in the expert
             defect might well be curable. The                    report.
             tenor of Dr. Cororve’s report,
                                                                  We believe that Dr. Starer’s report, which explained
             coupled with the fact that there is
                                                                  causation, but which did not explain certain medical
             only one physician defendant,
                                                                  concepts that would perhaps need to be explained at
             makes it quite likely that Dr.
                                                                  trial, was ‘less than all the evidence necessary to
             Cororve intended to opine that Dr.
                                                                  establish causation at trial,’ but still provided a ‘fair
             Kessler breached the standard of
                                                                  summary’ of causation.... The trial court’s comments
             care and caused injury even though
             the report did not contain that
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  14
Bogar v. Esparza, 257 S.W.3d 354 (2008)



    were not an improper ‘inference’ and do not constitute                     meet the statutory requirements, “consideration by the
    an abuse of discretion.                                                    trial court of [the appellees’] request for an extension to
                                                                               attempt to cure the defect is warranted.” See Austin Heart,
Id. at * 9, at *25 (quoting Tovar v. Methodist Healthcare                      228 S.W.3d at 283.
Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68
(Tex.App.-San Antonio 2005, pet. denied)).                                     I agree with Justice Patterson’s dissent that the trial court
                                                                               acted within its discretion in determining that Dr.
Similarly, the trial court’s conclusion that the report                        Adame’s report was sufficient. However, assuming that
implicated the conduct of Dr. Bogar—the only physician                         the report was not sufficient, I would hold in the
named as a defendant—where no other physicians or                              alternative that Dr. Adame’s report is merely deficient,
healthcare providers were implicated in the report can                         rather than “no report” as to Dr. Bogar, and therefore that
best be characterized as an analysis of the information                        the proper remedy is a remand to allow the trial court to
included in the report, rather than an impermissible                           determine whether to grant a 30–day extension of time
venture outside the four corners of the expert report.                         under section 74.351(c), giving the appellees an
                                                                               opportunity to cure any deficiencies.2 As a result, I
Because the trial court found Dr. Adame’s report to be                         respectfully join the dissent.
sufficient, no 30–day extension was ever required,
although the appellees requested an extension in the event
that the report was found to be deficient. In light of the
majority’s ruling that Dr. Adame’s expert report fails to

Footnotes
1       As we emphasized in Austin Heart—and as suggested by the supreme court in Ogletree, as we discuss below—this is not a
        “magic words” test. There may be a number of ways that a defendant may be referenced within the four corners a report so as to
        comply with the legislature’s mandate that the report “provide[ ] a fair summary 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.” Tex. Civ. Prac. & Rem.Code Ann. §
        74.351(r)(6) (emphasis added).
2       In Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.App.-Austin 2007, no pet.), this Court affirmed a trial court order
        dismissing a health care liability suit under section 74.351(b) and refusing to grant a 30–day extension under section 74.351(c).
        The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement
        precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including
        failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name
        or otherwise. The panel observed that “[a]lthough appellant has sued only Dr. Russo, other doctors and health-care providers are
        implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another
        doctor by name, but fails to mention Dr. Russo at all.” Id. at 257. The panel found the report deficient and no report, reasoning
        that it did not “specifically identify the defendant and apply the statutory elements to that defendant,” id. at 258, and “[i]f a
        report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a
        30–day extension.” Id. at 257. We need not consider Ogletree’s implications for Apodaca’s analysis of the “no report” issue
        because it is dicta. See Ogletree, 262 S.W.3d at ––––, ––––, 2007 WL 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *6–8
        (emphasizing discretionary nature of 30–day extension when trial court finds expert report deficient).
3       The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart,
        228 S.W.3d at 285 (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351
        does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, 228 S.W.3d at 291 (Patterson,
        J., dissenting) (“[t]he difference between the two is strategically significant. If the report is ‘no report,’ then the trial court must
        dismiss the case with prejudice and has no discretion to grant a 30–day extension.”) (emphasis in original); Apodaca, 228
        S.W.3d at 257 (“If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial
        court may not grant a 30–day extension.”) (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no
        pet.)).
4       Appellees similarly suggest that this regime incentivizes medical malpractice defendants to “maintain[ ] silence until the expert
        report deadline [to] entirely defeat a valid claim that in any other tort case they would each work affirmatively to defect onto a
        co-defendant as early as possible.”
5       Dr. Bogar does not dispute that appellees preserved their constitutional arguments in the trial court.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        15
Bogar v. Esparza, 257 S.W.3d 354 (2008)



6     However, as appellees further recognize, the open courts guarantee, see Tex. Const. art. I, § 13, is not directly implicated in this
      case because it applies only to common-law causes of action, not their statutory wrongful-death or survival claims.
7     Appellees similarly urge us to “avoid a constitutional confrontation” by remanding the case to afford them the opportunity to
      amend their expert report.
8     In a footnote in their motion, appellees complain that “Texas courts have never implemented the regime of preliminary
      disclosures provided in principle in Section 74.352; the plaintiffs had to request disclosures from the defendants, who
      responded—after the expert report was served—with little or nothing of substance.”
9     See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u); Tex.R. Civ. P. 192.7(a) (defining “written discovery”); see generally
      Tex.R. Civ. P. 194, 196–98, 200–01.
10    See Tex.R. Civ. P. 215.

1     The hospital settled and was dismissed from the lawsuit.

2     In Palacios, the court faulted the expert report for its conclusory statement that the standard of care required the hospital to have
      monitored Palacios more closely, restrain him more securely or done something else entirely. The court stated: “Knowing only
      that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American
      Transitional had an absolute duty to prevent falls from its hospital beds.” American Transitional Care Ctrs. v. Palacios, 46
      S.W.3d 873, 880 (Tex.2001). Here, the trial court may have concluded that the standard of care and duty were clear from the
      report detailing the “toxic levels of oxycodone along with lethal levels of propoxyphene” that caused the death.
3     The majority’s criticism of this approach relies on Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.), and
      Garcia v. Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, no pet.), but those cases are distinguishable in that both
      involved multiple defendants, whereas here we have only one defendant—Dr. Bogar.
1     I do not take issue with the majority’s holding that the appellees, who failed to take full advantage of the discovery tools
      provided by section 74.351 of the civil practices and remedies code, cannot now argue that the statute imposes an
      unconstitutional burden by restricting discovery until after expert reports have been served. See Tex. Civ. Prac. & Rem.Code
      Ann. § 74.351(s), (u) (West Supp.2007). However, while the appellees may not have established that section 74.351’s discovery
      limitations prevented them from serving a sufficient expert report, they have also not been given any opportunity to cure
      deficiencies in Dr. Adame’s report, which, until this Court’s holding on appeal, had been deemed sufficient as to Dr. Bogar.
2     In addition to arguing that Dr. Adame’s report constituted “no report,” Dr. Bogar also argues that Dr. Adame, a pathologist, was
      not qualified to render opinions concerning the standard of care applicable to physical medicine rehabilitation physicians, such
      as Dr. Bogar. While the majority does not address this contention in light of their holding that the expert report constituted “no
      report” as to Dr. Bogar, I would hold that even if Dr. Adame is deemed unqualified to render an expert opinion in this case, the
      appellees should still be afforded the opportunity to request the 30–day extension provided by section 74.351(c).
         A similar argument regarding expert qualifications was made in Ogletree, in which the appellant asserted that a radiologist
         was incapable of opining on the standard of care applicable to urologists. Ogletree v. Matthews, No. 06–0502, ––– S.W.3d ––
         ––, ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *4 (Tex. Nov. 30, 2007). In a concurring opinion, Justice
         Willett stated that the defect in the expert report consisted of “designating the wrong type of medical professionals to opine
         on standard of care,” and that using the wrong type of expert “is the type of defect for which a trial court may grant a
         discretionary section 74.351(c) extension.” Id. at *6, at *18 (Willett, J., concurring).




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     16
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833


                                                               Accordingly, we reverse the court of appeals’ judgment
                                                               and dismiss with prejudice the Wrights’ claims against
                     79 S.W.3d 48
                Supreme Court of Texas.                        Bowie Memorial Hospital.

   BOWIE MEMORIAL HOSPITAL a/k/a Bowie                         Barbara Wright was admitted to Bowie after she sustained
   Hospital District d/b/a Bowie Hospital District             injuries in a car accident. While at Bowie, Michael Layne,
     Authority d/b/a Bowie Memorial Hospital,                  a physician’s assistant that Bowie employed, x-rayed
                      Petitioner,                              Barbara’s right knee and foot and diagnosed her with a
                           v.                                  fractured patella. However, Layne allegedly misplaced or
  Barbara WRIGHT and P.L. Wright, Respondents.                 misread the foot x-ray and, therefore, did not discover that
                                                               Barbara had also fractured her right foot in the accident.
            No. 01–0814. | June 13, 2002.                      Shortly after Barbara was admitted to Bowie, Dr. Hodde,
                                                               Layne’s supervisor, recommended that Bowie refer her to
Patient brought medical malpractice action against             an orthopedic surgeon. Barbara was immediately referred
hospital, physician, physician’s assistant, and others,        to an orthopedic surgeon and transferred to another
alleging that failure to timely discover that her foot was     hospital. Her accompanying medical report, which Layne
fractured led to necessity of two additional surgeries. The    prepared, only indicated that Barbara had a fractured
78th District Court, Wichita County, Keith Nelson, J.,         knee.
dismissed patient’s claims. Patient appealed. The Fort
Worth Court of Appeals, 48 S.W. 3d 443, affirmed in            Nearly a month after the accident, Barbara’s orthopedic
part, reversed in part, and remanded. Upon grant of            surgeon discovered Barbara’s fractured foot. By that time,
hospital’s petition for review, the Supreme Court held that    the surgeon had already operated on Barbara’s knee. The
expert report submitted by patient did not constitute a        Wrights claim that the surgeon could have operated on
good-faith effort to summarize causal relationship             Barbara’s foot at the same time if he had known about the
between hospital’s alleged failure to meet applicable          injury. Instead, Barbara had two additional surgeries over
standards of care and patient’s injury under Medical           the next ten months.
Liability and Insurance Improvement Act.
                                                               Barbara and her husband sued Bowie, Layne, and Dr.
Reversed.                                                      Hodde for medical malpractice. The Wrights also sued the
                                                               orthopedic surgeon, another treating doctor, and three
                                                               medical clinics not associated with Bowie. The Wrights’
Attorneys and Law Firms                                        allegations pertinent here are that Bowie personnel did
                                                               not: diagnose Barbara’s foot fracture; protect her foot;
*50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles &       review diagnostic tests ordered and administered at the
Thompson, Dallas, Susan Irene Nelson, Dallas, for              hospital; or properly supervise Layne.
Petitioner.
                                                               The Wrights filed an expert medical report about
Britta Jean Gordon, Michael Kevin Queenan, Queenan
                                                               Bowie’s, Dr. Hodde’s, and another doctor’s alleged
Law Firm, DeSoto, for Respondents.
                                                               negligence. See TEX.REV.CIV. STAT. art. 4590i, §
                                                               13.01(d). The expert report states, in part:
Opinion

PER CURIAM.                                                      I have reviewed the material you sent me on the above
                                                                 case. I believe that the hospital fell below the
                                                                 appropriate standard of care in not having a defined
This case involves the Medical Liability and Insurance           mechanism in place whereby x-rays taken in the E.R.
Improvement       Act’s     (“the    Act”)    expert-report      are read by a physician specialized in interpreting the
requirements. See TEX.REV.CIV. STAT. art. 4590i, §               films in a timely manner (i.e., less than 24 hrs). X-rays
13.01. The trial court dismissed the plaintiffs’ medical         taken in the E.R. need to have re-reads performed
malpractice claims after it determined that their expert         within 24 hrs and if *51 there is a discrepency [sic] in
report did not satisfy the Act’s requirements. The court of      the x-ray readings a system should be in place to
appeals concluded that the trial court abused its discretion     inform the patient of this. There did not appear to be
when it dismissed the plaintiffs’ claims, because the            any procedure that the hospital has for tracking x-rays.
expert report represented a good-faith effort to comply          The hospital also doesn’t seem to have a system of
with the Act. 48 S.W.3d 443, 448. We disagree.                   orienting health care professionals working in the E.R.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

      nor any form of Q/A for P.A.’s staffing the E.R. There         art. 4590i, § 13.01(d); American Transitional Care Ctrs.
      didn’t appear to be any organized system or protocols          of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).
      for P.A. supervision in the E.R.                               The expert report must provide “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
      I do believe that it is reasonable to believe that if the x-   meet the standards, and the causal relationship between
      rays would have been correctly read and the                    that failure and the injury, harm, or damages claimed.”
      appropriate medical personnel acted upon those                 TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6). If a
      findings then Wright would have had the possibility of         plaintiff timely files an expert report and the defendant
      a better outcome.                                              moves to dismiss because of the report’s inadequacy, the
                                                                     trial court must grant the motion “only if it appears to the
Bowie moved to dismiss the Wrights’ claims, alleging                 court, after hearing, that the report does not represent a
that the expert report “fails to establish how any act or            good faith effort to comply with the definition of an
omission of employees of Bowie Memorial Hospital                     expert report in Subsection (r)(6) of this *52 section.”
caused or contributed to Ms. Wright’s injuries.”                     TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis
Therefore, Bowie argued, the report does not satisfy the             added).
Act’s requirements.
                                                                     [2]
                                                                          We recently discussed the Act’s expert-report
The trial court held two hearings to determine if the report         requirement for medical-malpractice cases. See Palacios,
represents a good-faith effort to meet the Act’s                     46 S.W.3d at 877–80. In Palacios, we explained that,
requirements. See TEX.REV.CIV. STAT. art. 4590i, §                   when considering a motion to dismiss under section
13.01(l ). At the first hearing, the trial court asked about         13.01(l ), “[t]he issue for the trial court is whether ‘the
the causal relationship between Bowie’s conduct and                  report’ represents a good-faith effort to comply with the
Barbara’s injury. The Wrights explained that if Bowie had            statutory definition of an expert report.” Palacios, 46
diagnosed Barbara’s fractured foot earlier, then she                 S.W.3d at 878. To constitute a “good-faith effort,” the
“probably would have had a better outcome.” They also                report must provide enough information to fulfill two
conceded that the orthopedic specialist Barbara saw                  purposes: (1) it must inform the defendant of the specific
immediately after leaving Bowie “had an independent                  conduct the plaintiff has called into question, and (2) it
duty to verify” Bowie’s medical report. Nevertheless, the            must provide a basis for the trial court to conclude that the
Wrights claimed that, if Bowie’s report had indicated that           claims have merit. Palacios, 46 S.W.3d at 879.
Barbara had a broken foot, it would have been “much
easier” for the orthopedic doctor to make a proper                   [3] [4] [5]
                                                                               The trial court should look no further than the
diagnosis. After the second hearing, the trial court granted         report itself, because all the information relevant to the
Bowie’s motion to dismiss. The record indicates that the             inquiry is contained within the document’s four corners.
trial court did not believe the Wrights’ claims against              Palacios, 46 S.W.3d at 878. The report need not marshal
Bowie, “the people who transferred [Barbara],” had merit,            all the plaintiff’s proof, but it must include the expert’s
given that the orthopedic surgeon “could have done his               opinion on each of the three elements that the Act
own work.”                                                           identifies: standard of care, breach, and causal
                                                                     relationship. Palacios, 46 S.W.3d at 878. A report cannot
The court of appeals reversed and remanded, holding that             merely state the expert’s conclusions about these
the trial court abused its discretion when it dismissed the          elements. Palacios, 46 S.W.3d at 879. “[R]ather, the
Wrights’ claims against Bowie. 48 S.W.3d at 448. The                 expert must explain the basis of his statements to link his
court concluded that the report inadequately summarizes              conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d
the causal relationship between Bowie’s alleged                      882, 890 (Tex.1999).
negligence and Barbara’s injury. However, it determined
that the report represents a good-faith effort to comply             [6] [7] [8]
                                                                              We review a trial court’s order dismissing a claim
with the Act, because it raises the possibility that, but for        for failure to comply with section 13.01(d)’s expert-report
Bowie’s breach, Barbara “would have had a better                     requirements under an abuse-of-discretion standard.
outcome.” 48 S.W.3d at 447.                                          Palacios, 46 S.W.3d at 878. A trial court abuses its
[1]
                                                                     discretion if it acts in an arbitrary or unreasonable manner
    Medical-malpractice plaintiffs must provide each                 without reference to any guiding rules or principles.
defendant physician and health-care provider an expert               Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
report with the expert’s curriculum vitae, or they must              241–42 (Tex.1985). When reviewing matters committed
voluntarily nonsuit the action. See TEX.REV.CIV. STAT.               to the trial court’s discretion, a court of appeals may not

                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

substitute its own judgment for the trial court’s judgment.   rather than the “reasonable medical probability”—that
See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41        Barbara might have had a better outcome, the court of
(Tex.1989).                                                   appeals concluded that the report’s adequacy should not
                                                              turn “solely upon the claimant’s failure to use magical
Here, the parties do not dispute that the expert report       words like ‘reasonable probability.’ ” 48 S.W.3d at 447.
fairly summarizes the alleged standard of care, because it    Accordingly, the court of appeals held that the report met
states that a hospital should have established procedures     the good-faith effort test, because it gave the trial court a
to read and interpret x-rays in a timely manner and to        basis to conclude that the Wrights’ claims against Bowie
inform patients about the results. See TEX.REV.CIV.           have merit. 48 S.W.3d at 448.
STAT. art. 4590i, § 13.01(r)(6). Also, the parties do not
dispute that the report fairly summarizes how Bowie           We agree with the court of appeals’ conclusion that a
allegedly breached the standard of care, because the          report’s adequacy does not depend on whether the expert
report states that Bowie did not have a procedure to track    uses any particular “magical words.” Nothing in the Act’s
x-rays. See TEX.REV.CIV. STAT. art. 4590i, §                  plain language, or in Palacios, suggests that, for these
13.01(r)(6). Consequently, the parties only contest           purposes, an expert report must express the causal
whether the report constitutes a “good-faith effort” to       relationship in terms of “reasonable medical probability.”
fairly summarize the causal relationship between Bowie’s      However, we disagree with the court of appeals’
alleged breach and Barbara’s injury. See TEX.REV.CIV.         conclusion that the trial court abused its discretion in
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at       dismissing the Wrights’ claims against Bowie. We have
879.                                                          held that the only information relevant to whether a report
                                                              represents a good-faith effort to comply with the statutory
Contrary to the court of appeals’ conclusion, it is not       requirements is the report itself. Palacios, 46 S.W.3d at
enough that the expert report “provided insight” about the    878. And, we have held that we review a trial court’s
plaintiff’s claims. See 48 S.W.3d at 447. Rather, to          decision about whether a report constitutes a good-faith
constitute a good-faith effort to establish the causal-       effort to comply with the Act under an abuse-of-discretion
relationship element, the expert report must fulfill          standard. Palacios, 46 S.W.3d at 878.
Palacios ‘s two-part test. See Palacios, 46 S.W.3d at 879.
Thus, under the Palacios test, we must determine whether      After reviewing this report, we conclude that the trial
the trial court acted unreasonably and without reference to   court could have reasonably determined that the report
guiding principles when it dismissed the Wrights’ claims      does not represent a good-faith effort to summarize the
against Bowie. See Downer, 701 S.W.2d at 241–42.              causal relationship between Bowie’s failure to meet the
                                                              applicable standards of care and Barbara’s injury. See
The Wrights primarily rely on one statement in the report     TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6);
to establish causation: “if the x-rays would have been        Palacios, 46 S.W.3d at 879. That is because the report
correctly read and the appropriate medical personnel *53      simply opines that Barbara might have had “the
acted upon those findings then Wright would have had the      possibility of a better outcome” without explaining how
possibility of a better outcome.” In their brief to this      Bowie’s conduct caused injury to Barbara. We cannot
Court, the Wrights contend that this statement “explains      infer from this statement, as the Wrights ask us to, that
why Petitioners’ damages were caused by Bowie                 Bowie’s alleged breach precluded Barbara from obtaining
Hospital’s breach: if the proper medical personnel at         a quicker diagnosis and treatment for her foot. Rather, the
Bowie had reviewed the x-rays, [Barbara] would have had       report must include the required information within its
a chance of diagnosis and treatment of her foot fracture.”    four corners. See TEX.REV.CIV. STAT. art. 4590i, §
                                                              13.01(r)(6); Palacios, 46 S.W.3d at 878. Because the
Bowie responds that the report’s statement about              report lacks information linking the expert’s conclusion
causation is conclusory, because it does not explain how      (that Barbara might have had a better outcome) to
Bowie’s failing to correctly read or act upon the x-rays      Bowie’s alleged breach (that it did not correctly read and
caused injury to Barbara. Moreover, Bowie asserts, the        act upon the x-rays), the trial court could have reasonably
statement does not even identify the specific injuries        determined that the report was conclusory. See Palacios,
Bowie’s conduct allegedly caused.                             46 S.W.3d at 880; Earle, 998 S.W.2d at 890. A
                                                              conclusory report does not meet the Act’s requirements,
In reviewing the report’s adequacy, the court of appeals      because it does not satisfy the Palacios test. Palacios, 46
focused on “whether the report provides a basis to            S.W.3d at 879.
conclude that the claims have merit.” 48 S.W.3d at 447
(citing Palacios, 46 S.W.3d at 878–79). Although the          *54 For these reasons, we hold that the trial court did not
causation statement recognizes only the “possibility”—        abuse its discretion when it concluded that the report did

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

not represent a good-faith effort to meet the Act’s           appeals’ judgment and dismiss with prejudice the
requirements. Therefore, the trial court had no discretion    Wrights’ claims against Bowie. See TEX.R.APP. P. 59.1.
but to dismiss the plaintiffs’ claims against Bowie. See
TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ); Palacios,
46 S.W.3d at 880. In reviewing the trial court’s order, the
court of appeals improperly substituted its own judgment      Parallel Citations
for the trial court’s judgment. See Flores, 777 S.W.2d at
41. Accordingly, we grant Bowie’s petition for review.        45 Tex. Sup. Ct. J. 833
Without hearing oral argument, we reverse the court of
End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)




                       227 S.W.3d 221
                  Court of Appeals of Texas,                                          OPINION
                    Houston (1st Dist.).
                                                              TERRY JENNINGS, Justice.
      CHCA MAINLAND L.P. d/b/a Mainland Medical
                     Center, Appellant,                       In this interlocutory appeal,1 appellant, CHCA Mainland
                             v.                               L.P. doing business as Mainland Medical Center
       James M. BURKHALTER, Individually and as               (“Mainland”), challenges the trial court’s January 25,
        Independent Executor of the Estate of Glenda          2006 order denying its motion to dismiss the health care
       Burkhalter, Deceased, and Jamie N. Burkhalter          liability claim of appellees, James M. Burkhalter,
             and Joe E. Ferguson, II, Appellees.              individually and as independent executor of the estate of
                                                              Glenda Burkhalter, deceased, and Jamie N. Burkhalter
          No. 01–06–00158–CV. | March 8, 2007.                and Joe E. Ferguson, II (“the Burkhalters”).2

                                                              We reverse the trial court’s January 25, 2006 order
Synopsis
Background: Surviving family member of deceased               denying Mainland’s motion to *224 dismiss and render
patient, individually and as independent executor of          judgment dismissing with prejudice the Burkhalters’
                                                              claims against Mainland.
patient’s estate, as well as other family members, brought
medical negligence action against physician and medical
center, alleging that the emergency care patient received
caused her death. Medical center moved to dismiss on the
basis of an insufficient expert report. The 122nd District                    Procedural Background
Court, Galveston County, John Ellisor, J., denied the
motion. Medical center appealed.                              In their original petition, filed on July 8, 2005, the
                                                              Burkhalters sued Mainland and Dr. Robin Lynn
                                                              Armstrong,3 alleging that their negligence proximately
                                                              caused the death of Glenda Burkhalter. On July 22, 2005,
Holdings: The Court of Appeals, Terry Jennings, J., held      the Burkhalters amended their original petition, further
that:
                                                              alleging that, on or about August 28, 2003, Glenda
[1]                                                           Burkhalter sought medical care and treatment at
      the medical center’s appeal was timely, and             Mainland’s emergency room because she was suffering
[2]                                                           from progressive epigastric abdominal pain radiating to
   the expert report submitted in support of claims against
                                                              her back, nausea, vomiting, diarrhea, some chest pain, and
medical center omitted the statutory elements, thus
                                                              palpitations. They also alleged that Mainland and Dr.
requiring dismissal of the action.
                                                              Armstrong were negligent and proximately caused Glenda
                                                              Burkhalter’s injuries in (1) “deviating from the standard
                                                              of care for treatment of gallstone pancreatitis secondary to
Reversed and rendered.
                                                              acute common bile duct obstruction by stone(s)”; (2)
                                                              “failing to properly and timely diagnosis [sic] [Glenda
Attorneys and Law Firms                                       Burkhalter’s] gallstone pancreatitis secondary to acute
                                                              common bile duct obstruction by stone(s)”; (3) “failing to
*223 John Wesley Raley, Lanette Lurleen Lutich–               properly treat [Glenda Burkhalter’s] condition”; (4)
Matthews, Houston, TX, Michelle Elaine Robberson,             “failing to refer [Glenda Burkhalter] with expressed
Cooper & Scully, Dallas, TX, for appellant.                   immediacy to a specialist or physician qualified to
                                                              confirm diagnosis and treat [her], or to consult with such
Sheila P. Haddock, The Law Firm of Sheila P. Haddock,         a specialist or physician concerning [her] condition”; (5)
PLLC, Houston, TX, for appellees.                             “failing to insure that [Glenda Burkhalter] was properly
                                                              monitored”; and (6) “failing to admit [Glenda Burkhalter]
Panel consists of Justices NUCHIA, JENNINGS, and              to an intensive care unit upon discharge from the
HIGLEY.                                                       emergency room.”



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                               1
CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)



On August 1, 2005, the Burkhalters served Mainland with
the expert report4 of John H. Fullerton, M.D. Mainland,       Section 74.351(l ) provides the proper basis for lodging
on August 22, 2005, filed its “Objection to Plaintiffs’       objections to the adequacy of an expert report. See id. §
Chapter 74.351 Expert Report.” Mainland objected to Dr.       74.351(l ) (Vernon Supp.2006) (“A court shall grant a
Fullerton’s report as inadequate and requested a              motion challenging the adequacy of an expert report only
“dismissal” of the Burkhalters’ claim.5 The Burkhalters       if it appears to the court, after hearing, that the report does
filed a response, and, on November 18, 2005, the trial        not represent an objective good faith effort to comply
court entered a written order denying Mainland’s              with the definition of an expert report in Subsection
“objections.” Mainland, on December 6, 2005, filed a          (r)(6).”); Methodist Healthcare Sys. of San Antonio, Ltd.
“Motion to Dismiss” the Burkhalters’ claim based on Dr.       v. Martinez–Partido, No. 04–05–00868–CV, 2006 WL
Fullerton’s “inadequate” report. The Burkhalters filed a      1627844, at *2 (Tex.App.-San Antonio June 14, 2006,
response, and the trial court, on January 25, 2006, signed    pet. denied) (mem. op.). Although an interlocutory appeal
its order denying Mainland’s motion to dismiss.               may be taken from an order that “grants relief sought by a
Subsequently, on February 14, 2006, Mainland filed its        motion under Section 74.351(l ),” a defendant has no right
notice of appeal of the January 25, 2006 order.               of interlocutory appeal if the trial court denies the
                                                              defendant’s challenge to the adequacy of an expert report
                                                              under section 74.351(l ). TEX. CIV. PRAC. &
                                                              REM.CODE ANN. § 51.014(a)(10) (Vernon Supp.2006);
                                                              Lewis v. Funderburk, 191 S.W.3d 756, 760 (Tex.App.-
                       Jurisdiction                           Waco 2006, pet. filed).
[1]
   At the outset, we address the Burkhalters’ argument        [2]
                                                                 An expert report may be deemed untimely filed under
that Mainland’s appeal is untimely because “[a] defendant     section 74.351(a) if the report is served before the 120–
seeking review of a trial court’s refusal to dismiss based    day deadline, but deficient. Acad. of Oriental Med., L.L.C.
on an inadequate expert report must file a notice of appeal   v. Andra, 173 S.W.3d 184, 187 n. 5 (Tex.App.-Austin
within 20 days of the order denying relief.” See              2005, no pet.); Martinez–Partido, 2006 WL 1627844, at
TEX.R.APP. P. 26.1(b), 28.1. They assert that “[a]lthough     *1. If an adequate expert report “has not been served”
captioned as an ‘Objection’ to the expert report,             within the 120–day period, the court, on the defendant’s
Mainland’s first motion specifically cited section            motion, shall, subject to section 74.351(c),6 enter an order
74.351(b) and clearly sought the relief enumerated in that    that “awards to the affected physician or health care
subsection: dismissal and recovery of costs and attorney’s    provider reasonable attorney’s fees and costs of court”
fees.” See TEX. CIV. PRAC. & REM.CODE ANN. §                  and “dismisses the claim with respect to the physician or
74.351(b) (Vernon Supp.2006). Therefore, because “[t]he       health care provider, with prejudice to the refiling of the
motion was denied November 18, 2005, ... any                  claim.” TEX. CIV. PRAC. & REM.CODE ANN. §
interlocutory appeal must have been commenced no later        74.351(b). A person may appeal from an interlocutory
than December 8, 2005.” In response, Mainland argues          order that “denies all or part of the relief sought by a
that *225 because the trial court, in its first order, only   motion under Section 74.351(b), except that an appeal
denied its “objections” to Dr. Fullerton’s report and did     may not be taken from an order granting an extension
not rule on its request to dismiss the Burkhalters’ claims    under Section 74.351.” Id. § 51.014(a)(9) (Vernon
under section 74.351(b), the November 18, 2005 order          Supp.2006); see id. § 74.351(c) (Vernon Supp.2006).
was not appealable.
                                                              Here, Mainland, in its August 22, 2005 “Objection to
Section 74.351(a) provides that within 120 days of filing     Plaintiffs’ Chapter 74.351 Expert Report,” in addition to
an original petition in a health care liability claim, a      objecting to the adequacy of the Burkhalters’ report, also
plaintiff must serve on each defendant an expert report,      requested dismissal of the Burkhalters’ claims with
along with the expert’s curriculum vitae. Id. § 74.351(a)     prejudice. However, the trial court, in its November 18,
(Vernon Supp.2006). An expert report is defined as “a         2005 order, did not rule on Mainland’s initial request to
written report by an expert that provides a fair summary      dismiss the case pursuant to section 74.351(b). Rather, the
of the expert’s opinions as of the date of the report         trial court only overruled Mainland’s objections to Dr.
regarding applicable standards of care, the manner in         *226 Fullerton’s report made pursuant to section 74.351(l
which the care rendered by the physician or health care       ). We note that in order to complain of an error on appeal,
provider failed to meet the standards, and the causal         the record must show that the trial court either expressly
relationship between that failure and the injury, harm, or    or impliedly ruled on the request, objection, or motion.
damages claimed.” Id. § 74.351(r)(6) (Vernon                  See TEX.R.APP. P. 33.1(a)(2)(A). Only after Mainland
Supp.2006).                                                   filed its subsequent “Motion to Dismiss” did the trial

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)



court enter its January 25, 2006 order denying Mainland’s         definition of an expert report in Subsection (r)(6).” Id. §
request for a dismissal pursuant to section 74.351(b).            74.351(l ); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
Accordingly, we have jurisdiction over the instant appeal         51–52 (Tex.2002) (applying former article 4590i, section
of the trial court’s January 25, 2006 order denying               13.01(l )).
Mainland’s motion to dismiss.
                                                                  [6] [7] [8]
                                                                            Because the statute focuses on what the report
                                                                  discusses, the only information relevant to the inquiry is
                                                                  within the four corners of the document. Palacios, 46
                                                                  S.W.3d at 878. A report need not marshal all the
                       Expert Report                              plaintiffs’ proof, but it must include the expert’s opinion
                                                                  on each of the elements identified in the statute. Id. In
In its sole issue, Mainland argues that the trial court, in its   setting out the expert’s opinions on each of those
January 25, 2006 order, erred in denying Mainland’s               elements, the report must provide enough information to
motion to dismiss because Dr. Fullerton’s expert report           fulfill two purposes *227 if it is to constitute a good faith
“did not contain a fair summary of the expert’s opinions          effort. Id. at 879. First, the report must inform the
against Mainland on any of the three elements required by         defendant of the specific conduct the plaintiffs have called
section 74.351(r)(6).” Mainland asserts that the report           into question. Id. Second, and equally important, the
“failed to include any standard(s) of care for the hospital       report must provide a basis for the trial court to conclude
or the hospital staff, and it was conclusory as to the            that the claims have merit. Id.
hospital and hospital staff on the elements of breach of the
standard of care and causation,” and therefore “was not an        [9] [10]
                                                                         A report that merely states the expert’s conclusions
objective good faith effort under section 74.351(l ).”            about the standard of care, breach, and causation does not
[3] [4] [5]                                                       fulfill these two purposes. Id. Rather, the expert must
         We review a trial court’s decision on a motion to        explain the basis of his statements to link his conclusions
dismiss a case under section 74.351(b) for an abuse of            to the facts. Wright, 79 S.W.3d at 52. Nor can a report
discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v.      meet these purposes and thus constitute a good faith effort
Palacios, 46 S.W.3d 873, 875 (Tex.2001) (holding trial            if it omits any of the statutory requirements. Palacios, 46
court’s decision to dismiss under former article 4590i,           S.W.3d at 879. However, to avoid dismissal, a plaintiff
section 13.01(e), is reviewed for abuse of discretion);           need not present evidence in the report as if it were
Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex.App.-               actually litigating the merits. Id. The report can be
Houston [1st Dist.] 2003, pet. denied) (same). A trial            informal in that the information in the report does not
court abuses its discretion if it acts in an arbitrary or         have to meet the same requirements as the evidence
unreasonable manner without reference to guiding rules            offered in a summary judgment proceeding or at trial. Id.
or principles. Downer v. Aquamarine Operators., Inc.,
701 S.W.2d 238, 241–42 (Tex.1985). When reviewing                 [11] [12] [13]
                                                                              Identifying the standard of care is critical:
matters committed to the trial court’s discretion, we may         whether a defendant breached his or her duty to a patient
not substitute our own judgment for that of the trial court.      cannot be determined absent specific information about
Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992).                 what the defendant should have done differently. Id. at
                                                                  880. While a “fair summary” is something less than a full
Here, the issue is whether Dr. Fullerton’s report                 statement of the applicable standard of care and how it
represents an objective good faith effort to comply with          was breached, even a fair summary must set out what care
the statutory definition of an expert report. See TEX. CIV.       was expected, but not given. Id. When a plaintiff sues
PRAC. & REM.CODE ANN. § 74.351(l ); Palacios, 46                  more than one defendant, the expert report must set forth
S.W.3d at 878. The definition requires a fair summary of          the standard of care for each defendant and explain the
the expert’s opinions as of the date of the report regarding      causal relationship between each defendant’s individual
applicable standards of care, the manner in which the care        acts and the injury. See Doades v. Syed, 94 S.W.3d 664,
rendered by the physician or health care provider failed to       671–72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v.
meet the standards, and the causal relationship between           Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th
that failure and the injury, harm, or damages claimed.            Dist.] 2001, no pet.).
TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6).
If a plaintiff timely files an expert report and the              [14]
                                                                       Mainland argues that Dr. Fullerton’s report is
defendant moves to dismiss because of the report’s                inadequate because he “did not include in his report any
inadequacy, a trial court must grant the motion “only if it       discussion of any standard of care applicable to a hospital,
appears to the court, after hearing, that the report does not     its nurses, or other hospital employees” and, “[a]s to
represent an objective good faith effort to comply with the       Mainland, Dr. Fullerton’s opinions on breach and

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)



causation were conclusory at best.” Mainland asserts that                  The Burkhalters argue that because they allege in their
“[i]n his report, Dr. Fullerton never states the standards of              petition that Dr. Armstrong was acting as the hospital’s
care applicable to a hospital or its nurses or other                       “agent, servant, and/or employee,” that “each statement
employees.” It further asserts that “[a]lthough Dr.                        regarding Dr. Armstrong may implicate Mainland.”
Fullerton states in one sentence—the only mention of the                   However, the Burkhalters cite no authority for the
hospital or its staff in the entire expert report—that the                 proposition that, by alleging in a petition that a doctor is
hospital staff breached the standard of care during Glenda                 acting as an “agent, servant, and/or employee” of a
[Burkhalter’s] hospitalization at Mainland, he does not                    hospital, an expert report may be adequate under section
identify how Mainland’s staff breached the standard of                     74.351 in regard to a hospital. Moreover, Mainland notes
care.” Additionally, “[i]n discussing proximate causation,                 that “Dr. Fullerton did not state that his opinions against
Dr. Fullerton does not state how any conduct of Mainland                   Dr. Armstrong would also apply against the hospital
or its nurses or other employees was a proximate cause of                  because of the Burkhalters’ pleading that Dr. Armstrong
Glenda [Burkhalter’s] death,” and “his opinions on                         was an agent of the hospital.”
proximate cause are conclusory.”
                                                                           Because Dr. Fullerton’s expert report omits at least one of
In the five-page report, the only specific mention of the                  the three specifically enumerated requirements of section
hospital occurs when Dr. Fullerton states that “[n]egligent                74.351(r)(6) in regard to Mainland, it cannot constitute an
care was rendered to Glenda Burkhalter and the standard                    objective good faith effort to meet the statutory
of care breached—by Dr. Armstrong, the treating                            requirements. See Jernigan, 195 S.W.3d at 94.
physicians (including the hospitalists), and the hospital                  Accordingly, we hold that the trial court erred in denying
staff-during her hospitalization at Mainland Medical                       Mainland’s December 6, 2005 motion to dismiss the
Center.” However, the report fails to mention the                          health care liability claim of the Burkhalters.
appropriate standard of care specifically in regard to
Mainland, its nurses, and its staff. The report similarly
fails to identify specifically how Mainland, its nurses, or
staff breached that standard of care. Nor does the report
explain any causal relationship between the acts of                                                   Conclusion
Mainland, its nurses and staff, and the injuries of Glenda
Burkhalter. Thus, the report omitted the statutory                         We reverse the trial court’s January 25, 2006 order
elements of the Burkhalters’ claim against Mainland. See                   denying Mainland’s motion to dismiss and render
TEX. CIV. PRAC. & REM.CODE *228 ANN. § 74.351(l                            judgment dismissing with prejudice the Burkhalters’
), (r)(6); Jernigan v. Langley, 195 S.W.3d 91, 94                          claims against Mainland.7
(Tex.2006).


Footnotes
1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2006).

2      See id. § 74.351 (Vernon Supp.2006). Before September 1, 2005, section 74.351(a) required that a plaintiff, within 120 days of
       filing a health care liability claim, serve on each defendant an expert report, along with the expert’s curriculum vitae. See Act of
       June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg.,
       R.S., ch. 635, § 1–3, 2005 Tex. Sess. Law Serv. 1590, 1591 (Vernon Supp.2006). Section 74.351(a) has been amended since the
       Burkhalters’ health care liability claim accrued. See id. (providing that amendment took effect September 1, 2005). However,
       which version of the statute applies does not affect our analysis, and we therefore cite to the current version of the statute.
3      Dr. Armstrong is not a party to this appeal.

4      See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

5      See id. § 74.351.

6      See id. § 74.351(c) (“If an expert report has not been served ... 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.”).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      4
CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)


7     We note that, in its brief, Mainland did not request an award of reasonable attorney’s fees. See id. § 74.351(b)(1).




End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     5
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919



                                                                Opinion
                   998 S.W.2d 882
                Supreme Court of Texas.                         *884 Justice HECHT delivered the opinion of the Court.
         Stephen EARLE, M.D., Petitioner,
                       v.                                       This medical malpractice case raises several issues, but
        Michael RATLIFF and Shirley Ratliff,                    our attention centers on whether the plaintiff’s claim that
                  Respondents.                                  the defendant negligently performed surgery on him is
                                                                barred by limitations. The plaintiff contends that
No. 98–0115. | Argued April 7, 1999. | Decided July
                                                                limitations did not begin to run on his claim until his post-
    1, 1999. | Rehearing Overruled Oct. 7, 1999.
                                                                surgical course of treatment by the defendant ended, and
Patient sued surgeon who performed two back surgeries           until he became aware that the defendant had fraudulently
involving metal bone plates and pedicle screws, asserting       concealed from him the truth about the surgery and the
medical malpractice and lack of informed consent. The           treatment that followed. Further, the plaintiff asserts, to
288th Judicial District Court, Bexar County, David              bar his claim would violate the Open Courts provision of
Peeples, J., granted summary judgment for surgeon on            the Texas Constitution.1 On each of these matters we
statute of limitations grounds. Patient appealed. The San       disagree with the plaintiff, but on other claims described
Antonio Court of Appeals, 961 S.W.2d 591, reversed and          below, we believe the plaintiff is correct. The district
remanded. Surgeon filed petition for review. The                court granted defendant summary judgment on all
Supreme Court, Hecht, J., held that: (1) any negligence by      plaintiff’s claims. The court of appeals reversed summary
surgeon concerning initial surgery occurred on or before        judgment on all claims.2 We partially affirm, and partially
date of that surgery, and limitations period thus began to      reverse, the judgment of the court of appeals and remand
run on that date rather than when surgeon quit treating         the case to the district court for further proceedings.
patient; (2) surgeon did not fraudulently conceal known
wrong, so as to toll limitations periods for medical
malpractice claim; (3) open courts provision of state
constitution did not preclude limitations bar of patients’                                    I
claims relating to initial back surgery; (4) genuine issue of
material fact existed, precluding summary judgment for          Michael Ratliff, a thirty-eight-year-old freight handler in
surgeon, on whether he was negligent concerning second          good health, sustained a work-related back injury in June
surgical implant of devices in patient’s back; (5) surgeon      1991, for which he was treated by Dr. Stephen Earle. On
could not be held negligent concerning disclosure of risks      November 21, 1991, Earle operated on Ratliff, fusing his
attendant to second spinal implant surgery, where surgeon       lumbar spine at three levels, decompressing nerves at four
disclosed all risks identified by Texas Medical Disclosure      levels, and inserting metal bone plates and screws
Panel and thus complied with Medical Liability Insurance        manufactured by AcroMed Corporation. Unfortunately,
Improvement Act; and (6) Medical Liability and                  Ratliff’s condition gradually worsened. Earle continued to
Insurance Improvement Act barred patient’s Deceptive            treat Ratliff, and on November 16, 1993, Earle operated
Trade Practices-Consumer Protection Act (DTPA) claims           again to remove and replace the instrumentation
that surgeon misrepresented and concealed truth                 implanted in the first surgery. Following this surgery,
concerning back surgeries.                                      Ratliff’s condition deteriorated even further, to the point
                                                                where he was in constant pain and unable to walk, talk, or
Judgment of the Court of Appeals affirmed in part and           care for himself. A month later, Ratliff saw a television
reversed in part, and case remanded.                            report on the risks associated with the AcroMed
                                                                instrumentation that had been surgically implanted in him
                                                                and removed. Ratliff contends that this was his first
Attorneys and Law Firms                                         inkling that Earle’s treatment had been improper. Ratliff
                                                                returned to Earle on January 4, 1994, for a final visit, and
*883 George H. Spencer, Sr., Phylis J. Speedlin, San
                                                                not quite two months later, on February 28, he and his
Antonio, for Petitioner.
                                                                wife (collectively, “Ratliff”) sued Earle and others. We
Donna J. Bowen, Michael L. Slack, Austin, James A.              are concerned only with Ratliff’s action against Earle.
Hall, San Antonio, for Respondents.
                                                                Ratliff sued Earle for negligence, fraudulent concealment,
                                                                strict liability, and violations of the Deceptive Trade
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     1
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

Practices–Consumer Protection Act.3 Ratliff alleged that            (Ratliff has dismissed his strict liability claim in
Earle was negligent in:                                             order to participate in a settlement reached in In re
                                                                    Orthopedic Bone Screw Products Liability Litigation
                                                                    (Fanning v. Acromed Corp.).4)
     · misdiagnosing his condition;                           Earle moved for summary judgment on several grounds,
                                                              including: that Ratliff’s claims relating to his 1991
         · performing unwarranted and unnecessary             surgery were barred by limitations; that with respect to
         surgeries on him;                                    the 1993 surgery, Earle did not breach the standard of
                                                              care owed Ratliff or cause him any injury; that Earle
         · implanting in his back pedicle devices not         obtained from Ratliff the consent to treatment and surgery
         approved by the Federal Food and Drug                required by statute;5 and that Earle did not knowingly
         Administration;                                      make any misrepresentation to Ratliff. In connection with
                                                              the last ground, Earle argued that Ratliff’s health care
         · failing to warn him of the risks of the surgery
                                                              liability claims could not be recast as DTPA violations.
         and the causes of his subsequent pain; and
                                                              Earle supported his motion with his own affidavit and
         · misrepresenting throughout the entire course       certain medical records. Ratliff responded, relying on his
         of treatment the risks of pedicle instrumentation    own affidavit and that of an expert witness, Dr. Vert
         and the problems experienced by other patients       Mooney, as well as other medical records. The district
         from such a procedure.                               court granted Earle’s motion “on all grounds”, and Ratliff
                                                              appealed.
     Ratliff further alleged that Earle had fraudulently
     concealed:                                               The court of appeals reversed, holding that Earle was not
                                                              entitled to summary judgment on any ground raised in his
         · that the surgeries were unwarranted and            motion.6 Concerning limitations, the court concluded “that
         unnecessary;                                         the allegations of this case [involving] elements of both
                                                              misdiagnosis and mistreatment mak[e] it difficult to
         · that objective reports did not support Earle’s     ascertain a specific date when the malpractice claim
         diagnosis and recommendation of surgery;             arose.”7 Under the circumstances, the court found that
                                                              limitations did not begin to run on Ratliff’s claims until
         · that statements Earle made to induce Ratliff to    the date of Earle’s last treatment,8 which, as we have said,
         have surgery were incorrect;                         was less than two months before Ratliff filed suit.
         · that assurances Earle gave Ratliff about his       We granted Earle’s petition for review.9 We first consider
         condition and the reasons *885 for his               whether Ratliff’s claims relating to the 1991 surgery are
         continuing pain were misleading, incomplete,         barred by limitations, and then whether Earle was entitled
         and inaccurate; and                                  to summary judgment on Ratliff’s other claims.
         · the risks of using spinal fixation devices, some
         of which were printed on an insert in the
         packaging of the instrumentation Earle
         implanted in Ratliff.                                                             II
     Finally, Ratliff alleged that Earle violated the DTPA    Ratliff’s negligence claims are “health care liability
     by telling him that:                                     claims” within the meaning of the Medical Liability and
                                                              Insurance Improvement Act.10 Section 10.01 of the Act
         · he needed surgery;                                 provides in pertinent part that
         · he would get “95% better” and would be able           no health care liability claim may be commenced
         to return to work;                                      unless the action is filed within two years from the
                                                                 occurrence of the breach or tort or from the date the
         · the devices implanted in Ratliff were safe,
                                                                 medical or health care treatment that is the subject of
         approved for such use, and permanent; and
                                                                 the claim or the hospitalization *886 for which the
         · the pain he endured was to be expected and            claim is made is completed....11
         would get better.                                    Thus, under this statute limitations is to run from one of
                                                              three dates: the date of the breach or tort, the completion

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  2
Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

of treatment, or the completion of hospitalization. We            Gormley’s motion for summary judgment stated that
have repeatedly held that a plaintiff cannot choose the           the health care of which Stover complained occurred
most favorable of the three dates specified, and that “if         before or during surgery. None of the excerpts of
the date of the negligence can be ascertained, ...                Stover’s and her expert witness’ deposition testimony,
limitations must be measured from the date of the tort.” 12       attached to Gormley’s motion, mentioned any
                                                                  negligence occurring after surgery. Gormley’s affidavit
Ratliff contends, and the court of appeals agreed, that           stated that if Stover was injured at all, it was during
limitations did not begin to run on his claims regarding          surgery. Stover’s affidavit did not assert that Gormley
the 1991 surgery until Earle quit treating him, shortly           was negligent following surgery. Her affidavit did
before he filed suit. Earle asserts that limitations began to     assert that Gormley represented to her after her surgery
run on those claims the date surgery was performed.               that her pain would shortly subside, but she does not
Ratliff also contends that the running of limitations was         claim that her continued pain was attributable to his
suspended by Earle’s fraudulent concealment of certain            post-surgical treatment of her. In short, Gormley’s
facts about the surgery and his prognosis. Earle responds         affidavit established as a matter of law that no
that Ratliff has failed to raise a genuine issue of material      actionable negligence occurred after surgical treatment
fact on the elements of fraudulent concealment. Finally,          was completed, and nothing else in the *887 summary
Ratliff argues that his claims cannot be barred by                judgment record raises a fact issue on the matter. The
limitations without violating the Open Courts provision of        trial court correctly granted summary judgment for
the Texas Constitution. Earle responds that Ratliff has           Gormley on Stover’s negligence claims in their
failed to raise a fact issue that he did not have a               entirety.14
reasonable opportunity to sue, and thus he is not entitled      As far as we have been able to determine, the only courts
to the protection of the Open Courts provision. We              of appeals to consider this issue have reached the same
address each of these issues—when limitations began to          conclusion.15
run, fraudulent concealment, and Open Courts—in turn.
                                                                The court of appeals in the present case was concerned
                                                                about the lingering effects of Earle’s alleged
                                                                misdiagnosis, leading to unnecessary surgery, continued
                                                                pain and complications, and finally another surgery. But if
                             A                                  the running of limitations on negligent surgery were
[1]                                                             deferred while the patient continued to experience the
   Ratliff neither complains nor offers evidence of any         effects of that surgery, then the first clause of section
negligence by Earle in the treatment following the 1991         10.01 pegging the date of the breach or tort as the
surgery. Ratliff does not contend, for example, that Earle      beginning of the limitations period would seldom apply to
should have done something after the surgery to relieve         surgery.
his pain or improve his back. Ratliff alleges that Earle did
not tell him the truth about the surgery, the reasons for his   Our conclusion does not suggest that limitations is not
continued pain afterward, or his prognosis, but he does         affected when a physician who can correct a misdiagnosis
not assert that Earle’s alleged post-surgical statements or     or lessen its consequences fails to do so. On the contrary,
concealments affected his treatment or his condition.           we suggested in Rowntree v. Hunsucker that a claim for
                                                                continued mistreatment is not barred simply because
Rather, Ratliff contends that Earle was negligent in            treatment was based on a much earlier misdiagnosis.16
misdiagnosing the need for surgery, in failing to disclose      Rowntree did not present such a situation,17 but Chambers
the attendant risks of surgery beforehand, and in               v. Conaway,18 the case on which the court of appeals
performing unwarranted surgery. Assuming Ratliff is             relied, did. Conaway claimed that Chambers, her family
correct, Earle’s negligence occurred on or before the date      physician, failed to diagnose cancer on two occasions
he performed surgery, and limitations on Ratliff’s claim        when she complained of a lump in her breast and on
began to run on that date. We reached the same                  several other visits to him for general health care. Based
conclusion in similar circumstances in Gormley v.               on evidence that Chambers had a duty to follow up on
Stover.13 There, Stover complained that Gormley was             Conaway’s complaints each time he saw her, we held that
negligent in performing skin graft surgery to improve her       the tort Conaway complained of did not occur, and
ability to wear dentures, but she argued that limitations       limitations did not begin to run, until the last time
did not begin to run until Gormley quit treating her. We        Chambers failed to diagnose her cancer, which was her
explained:                                                      last visit.19 We did not apply the course-of-treatment
                                                                limitations provisions of section 10.01 to allow Conaway
                                                                to complain of the initial misdiagnosis, but neither did we

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

allow that first misdiagnosis to bar Conaway’s complaints         therefore fraudulent concealment is imputed to Dr.
about later visits.                                               Carrell because of his failure to inform the plaintiff that
                                                                  the gauze sponge had been left inside the plaintiff’s
Nor does our conclusion suggest that limitations on               body. The proposition is essentially unsound. In
claims of post-surgical negligence runs from the date of          conducting a surgical operation on his patient, and in
surgery. If treatment is negligent following surgery, then        respect to any treatment he may administer, a surgeon
section 10.01 provides that limitations begins to run from        is under the duty to exercise due care. His failure to
the date of the breach or tort or from the date that              discharge this duty constitutes negligence and therefore
treatment was completed. Thus, limitations on a claim             is wrongful—but the failure does not, of itself,
that a physician has improperly treated a patient’s               constitute fraud or expose the surgeon to the imputation
infection following surgery does not begin to run on the          of fraudulent concealment. Among other essential
date of surgery merely because the infection would not            ingredients, a fraudulent concealment in cases of this
have occurred but for the surgery.                                sort includes, first, actual knowledge of the fact that a
                                                                  wrong has occurred, and, second a fixed purpose to
Ratliff does not allege that Earle misdiagnosed or                conceal the wrong from the patient. Neither of these
mistreated his condition after surgery or that he failed to       ingredients appears from the allegations of the
do anything following surgery to rectify or ameliorate his        plaintiff’s petition. The trial court did not err in
earlier misdiagnosis that surgery was appropriate. Under          sustaining the special exception in question and in
these circumstances, limitations began to run on Ratliff’s        dismissing the suit.24
complaints concerning the 1991 surgery the date it was          In other words, proof of fraudulent concealment requires
performed.                                                      more than evidence that the physician failed to use
                                                                ordinary care; it also requires evidence that the defendant
                                                                actually knew the plaintiff was in fact wronged, and
                                                                concealed that fact to deceive the plaintiff.25

                               B                                [3] [4] [5]
                                                                         A person who asserts fraudulent concealment to
                                                                avoid summary judgment on limitations must raise a
Although section 10.01 prescribes the limitations period        genuine issue of material fact that would support his
for all health care liability claims “[n]otwithstanding any     assertion.26 Of course, fraudulent concealment may be
other *888 law,”20 we held in Borderlon v. Peck that the        shown by circumstantial evidence as well as direct
statute “does not abolish fraudulent concealment as an          evidence.27 We therefore must examine the evidence
equitable estoppel to the affirmative defense of                Ratliff offered to support his claim of fraudulent
limitations”.21 Proof of fraudulent concealment, we added,      concealment: Ratliff’s affidavit and that of his expert, Dr.
does not prohibit an assertion of limitations altogether,       Mooney.
but does suspend the running of limitations until such
time as the plaintiff learned of, or should have discovered,    Mooney’s affidavit focuses on whether Earle was
the deceitful conduct or the facts giving rise to the cause     negligent, not whether Earle deliberately concealed facts
of action.22 Ratliff contends that because Earle                from Ratliff to deceive him. Mooney states that Earle
fraudulently concealed that the 1991 surgery was                *889 must have known that his recommendation of
unnecessary and risky, limitations on claims concerning         surgery was negligent because it was contraindicated by
that surgery did not begin to run until he learned the truth    the objective test results set out in Ratliff’s medical
in a television broadcast more than two years later, a few      records and because information available to Earle
months before he filed suit.                                    concerning pedicle implementation showed that surgery
[2]                                                             should not have been attempted. While this evidence
   We considered the effect of fraudulent concealment in        certainly shows a difference of opinion between Mooney
the medical malpractice context in Carrell v. Denton.23         and Earle and raises a question whether Earle was
There the defendant physician had left a gauze sponge in        negligent, it falls short of showing Earle’s “actual
plaintiff’s body after surgery. To avoid having his             knowledge of the fact that a wrong ... occurred” necessary
negligence claim barred by limitations, plaintiff asserted      for fraudulent concealment. In addition, Mooney refers to
fraudulent concealment. We rejected plaintiff’s argument,       portions of Earle’s deposition testimony as evidence that
explaining:                                                     Earle knew about, but did not inform Ratliff of, certain
                                                                serious risks associated with spinal fixation surgery. This
      The proposition which lies at the bottom of this          testimony, too, reflects a difference of professional
      contention is to the effect that the relation between a   opinion and does not show that Earle intended to deceive
      surgeon and his patient involves trust and confidence,    Ratliff.

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

                                                               treatment by Dr. Earle was negligent and had caused the
Ratliff’s affidavit does not show that Earle fraudulently      problems he was experiencing until, at the earliest, in
concealed facts from him. Ratliff states that Earle            December 1993 when he saw the [television broadcast].”
“assur[ed] me that I would be ‘95 ≠tter’ and would return      The district court correctly struck this latter *890
back to work soon”, that Earle “did not inform me that my      statement as being conclusory. Even if the sentence had
surgery could make my condition even worse” and “never         not been struck, neither it nor Mooney’s broad statements
explained the permanency and severity of my condition”,        about justified reliance on a physician’s advice would
and that Earle “told me the [1993] surgery was necessary       support Ratliff’s constitutional claim. Mooney’s statement
because I had four broken screws” when in fact the             that he had seen no evidence that Ratliff could have
surgery was necessitated by loose, not broken, screws.         discovered Earle’s alleged negligence sooner is not
But Ratliff offers no evidence, direct or circumstantial,      conclusive of the record. Between the 1991 and 1993
that Earle actually knew these statements were in fact         surgeries, Ratliff made twenty-four visits to Earle’s
false when he made them, let alone that Earle’s purpose in     office. Medical records establish that he repeatedly
making them was deceit. Earle may have been negligent          complained of pain and a lack of improvement in his
in what he said to Ratliff, just as he may have been           condition. In his own affidavit, Ratliff reiterates that his
negligent in performing the 1991 surgery, but Ratliff has      pain persisted during that period and that there was little
offered no summary judgment evidence that Earle acted          improvement in his condition. Ratliff’s condition was not
fraudulently by concealing a known wrong.                      latent, nor does he assert that the risks associated with his
                                                               surgery were generally unknown to medical practitioners.
Because Ratliff has failed to raise an issue of fact
concerning fraudulent concealment, we conclude that he         The record establishes that Ratliff had an opportunity to
cannot thereby avoid the bar of limitations.                   learn of any negligence by Earle in performing the 1991
                                                               surgery, and the fact that he waited more than two years
                                                               to do so does not raise constitutional concerns.
                                                               Accordingly, we conclude that Ratliff’s claims
                                                               concerning the 1991 surgery are barred by limitations.
                             C
[6]   [7]
         The Open Courts provision of the Texas
Constitution28 does not permit a well-established
common-law cause of action to be restricted by statute in                                  III
a way that is unreasonable or arbitrary in view of the
statute’s purpose.29 In Jennings v. Burgess, we held that      We now turn to three additional claims Ratliff makes: that
the limitations provisions of section 10.01 do not violate     Earle was negligent in performing the 1993 surgery, that
the Open Courts guarantee if a plaintiff has had a             Earle failed to disclose the risks attendant to that surgery,
reasonable opportunity to discover the alleged wrong and       and that statements Earle made violated the DTPA.
bring suit before the limitations period expired. 30 We
assumed in Jennings, without expressly explaining our
reasons, that the plaintiff must raise a fact issue
concerning the applicability of the provision to avoid a
summary judgment on limitations.31 We believe that the                                      A
same rule should apply for asserting the Open Courts           [8]
guarantee in response to a motion for summary judgment            Ratliff claims that Earle was negligent in performing
on limitations as is applied in asserting fraudulent           the 1993 surgery. In his affidavit supporting his motion
concealment.                                                   for summary judgment, Earle states that he did not breach
                                                               the applicable standard of care in performing the 1993
Ratliff’s affidavit establishes that he did not learn of the   surgery. “Both in 1991 and 1993,” Earle’s affidavit states,
risks of pedicle implantation until he saw a television        “use of Steffe pedicle screws and plates met the standard
broadcast about a month after his second surgery.              of care.” Mooney’s affidavit states with respect to the
However, the only evidence Ratliff has offered to show         1993 surgery: “Considering the degree of spinal
that he could not have learned of the risks sooner consists    instability created by Mr. Ratliff’s first surgery, and the
of statements in Mooney’s affidavit that he was justified      fact that Mr. Ratliff’s first set of AcroMed screws and
in trusting Earle and the following statement: “From the       plates resulted in hardware failure with loosening, the
information that I have reviewed, there is no evidence that    insertion of another device was medically unwarranted.”
Mr. Ratliff could have known that his care and continued       The district court struck this statement in Mooney’s
                                                               affidavit as being conclusory, but we do not regard it as
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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

any more conclusory than statements in Earle’s affidavit.        presumption Ratliff could and did rebut with Mooney’s
Mooney’s statement raises the question whether, given            affidavit stating that Earle should have disclosed certain
Ratliff’s failure to improve following the first surgical        risks beyond those enumerated by the Texas Medical
implantation and his increased spinal instability, a second      Disclosure Panel.41 The court relied on another court of
implant was warranted. Earle’s affidavit and other               appeals’ decision, Penick v. Christensen,42 which
summary judgment evidence do not address this issue.             concluded that a physician who makes disclosure for a
                                                                 List A procedure or treatment as prescribed by the Panel
[9]
   Summary judgment can be granted on the affidavit of           can nevertheless be negligent for failing to make
an interested expert witness, like Earle, but the affidavit      additional disclosures. Penick based its conclusion on
must not be conclusory.32 An expert’s simple ipse dixit is       section 6.07(a)(1) of the Act, which provides that
insufficient to establish a matter; rather, the expert must      disclosure made as prescribed for a List A procedure
explain the basis of his statements to link his conclusions      “shall create a rebuttable presumption that the
to the facts.33 Earle’s affidavit does not explain why           requirements of [the Act] have been complied with”. 43
implantation of additional devices in the 1993 surgery
was medically warranted, given Ratliff’s history; the            We do not agree that the Act permits a finding that a
affidavit states only the conclusion that Earle met the          physician who made disclosures as prescribed by the
applicable standard of care.                                     Panel was negligent for not disclosing other risks and
                                                                 hazards associated with the recommended procedure.
Accordingly, the court of appeals did not err in reversing       Were it so, the Act would afford a physician who
summary judgment on this claim.                                  complied with Panel directives no protection from
                                                                 liability for nondisclosure if there were any evidence that
                                                                 additional disclosure was appropriate. The entire purpose
                                                                 of the Panel decisions would thus be thwarted. Section
                                                                 6.07(a)(1) is not entirely clear, but we agree with the
                              B                                  weight of scholarly authority that, read in the light of the
[10]                                                             other provisions of the Act, it permits the presumption of
    Ratliff contends that Earle was negligent in failing to      proper disclosure to be rebutted only by showing the *892
disclose the risks attendant to the 1993 surgery. This           invalidity of the consent form, such as by proof that the
claim *891 is governed by the Medical Liability and              patient’s signature was forged, or that the patient lacked
Insurance Improvement Act.34 The Act creates the Texas           capacity to sign.44
Medical Disclosure Panel and gives it the responsibility to
“identify and make a thorough examination of all medical         Ratliff produced no evidence that his written consent was
treatments and surgical procedures ... to determine which        ineffective due to incapacity or was otherwise invalid, and
... do and do not require disclosure of the risks and            thus he has raised no issue that Earle was negligent in
hazards to the patient”.35 The Panel prepares and publishes      disclosing the risks of surgery. Accordingly, we hold that
two lists, one (List A) of treatments and procedures for         the court of appeals erred in reversing summary judgment
which the risks must be disclosed, and the other (List B)        on this claim, and we disapprove Penick to the extent its
of treatments and procedures for which disclosure of risks       reasoning is contrary to ours.
is not required.36 For all List A procedures, the Panel must
also state what risks must be disclosed and the form in
which disclosure must be made.37 The Act then provides
that a physician who discloses to a patient the risks of a
List A procedure in the substance and form prescribed by                                      C
the Panel “shall be considered to have complied” with the
                                                                 [12]
Act,38 and that a patient’s consent to a List A procedure            Finally, Ratliff claims that Earle misrepresented and
obtained as prescribed “shall be considered effective”. 39 It    concealed the truth concerning both the 1991 and the
is undisputed that both of Ratliff’s surgeries were List A       1993 surgeries in violation of the DTPA. Section 12.01(a)
procedures.40 Earle’s affidavit states in effect that he         of the Medical Liability and Insurance Improvement Act
disclosed all risks identified by the Texas Medical              precludes application of the DTPA to physicians “with
Disclosure Panel in the manner required, and Ratliff’s           respect to claims for damages for personal injury or death
signed consent form shows that Earle is correct.                 resulting, or alleged to have resulted, from negligence”. 45
                                                                 Ratliff and Earle both argue whether Ratliff’s DTPA
[11]
     The court of appeals held, however, that Earle’s            claims are thus precluded.
affidavit only raised a rebuttable presumption that he was
not negligent in disclosing the risks of surgery to Ratliff, a

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

In Sorokolit v. Rhodes, we held that section 12.01(a) does               the DTPA when the plaintiff’s complaint was that her
not preclude a DTPA claim that is not based on a                         deceased husband had been negligently treated.52
physician’s breach of the accepted standard of medical
care.46 We added, however, that “[c]laims that a physician               The representations Ratliff alleges Earle made are all
or health care provider was negligent may not be recast as               related to Earle’s treatment of him and the surgeries
DTPA actions” to avoid the provisions of the Act. 47 We                  performed, as in Gormley, Walden, and MacGregor, and
held that a physician’s promise that his patient’s                       do not resemble the representations that were possible
appearance following cosmetic surgery would be identical                 DTPA violations in Sorokolit. The gist of all of Ratliff’s
to a specific photograph was actionable under the                        claims, variously phrased and labeled, is that Earle did not
DTPA.48                                                                  hold to the applicable standard of care. Such a claim
                                                                         sounds only in negligence. Summary judgment on these
In Gormley v. Stover, however, we held that a dentist’s                  claims was therefore proper.
statements that he could perform surgery on the plaintiff
with no problems, that a skin graft would work as well as
a bone graft, that after surgery the plaintiff could wear
dentures with no problems, and that her pain and
numbness would subside following surgery were not                                                    *****
actionable under the DTPA.49 All these statements, we
concluded, related to whether the dentist’s choice of                    Accordingly, the court of appeals’ judgment is affirmed in
surgical procedure and his performance of it met the                     part and reversed in part, and the case is remanded to the
applicable standard of care.50 In Walden v. Jeffery, we                  district court for further proceedings.
held that a dentist’s failure to provide the plaintiff
dentures that fit was a negligence claim, not a DTPA
claim.51 More recently, we held in MacGregor Medical                     Parallel Citations
Ass’n v. Campbell *893 that a clinic’s statements in its
HMO literature that it provided qualified personnel and                  42 Tex. Sup. Ct. J. 919
resources, the best services possible, and emergency
service twenty-four hours a day were not actionable under

Footnotes
1      TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or
       reputation, shall have remedy by due course of law.”).
2      961 S.W.2d 591.

3      TEX. BUS. & COM.CODE §§ 17.41–.63.

4      176 F.R.D. 158, 165–166 (E.D.Pa.1997).

5      TEX.REV.CIV. STAT. ANN. art. 4590i, §§ 6.05–.06 (Vernon Supp.1999).

6      961 S.W.2d 591.

7      Id. at 597.

8      Id.

9      42 TEX. SUP.CT. J. 335 (Feb. 4, 1999).

10     “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of
       treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results
       in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” TEX.REV.CIV.
       STAT. ANN. art. 4590i, § 1.03(4) (Vernon Supp.1999).

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919


11     Id. § 10.01.

12     Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998) (per curiam); accord Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995) (per
       curiam); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).
13     907 S.W.2d 448 (Tex.1995) (per curiam).

14     Id. at 449–450.

15     See Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Desiga v. Scheffey, 874 S.W.2d
       244, 248–249 (Tex.App.—Houston [14th Dist.] 1994, no writ); Shook v. Herman, 759 S.W.2d 743, 745–746 (Tex.App.—Dallas
       1988, writ denied). Cf. Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that
       limitations began to run from the last date of treatment rather than the date of the last of two eye surgeries because plaintiff
       alleged negligence in the follow-up treatment).
16     833 S.W.2d 103, 105 (Tex.1992).

17     Id. at 108.

18     883 S.W.2d 156 (Tex.1993).

19     Id. at 158–159.

20     TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp.1999).

21     661 S.W.2d 907, 909 (Tex.1983).

22     Id.; Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974).

23     138 Tex. 145, 157 S.W.2d 878 (1942).

24     Id. at 879.

25     See Borderlon, 661 S.W.2d at 908 (holding that a physician has a duty to disclose a negligent act or the fact that an injury has
       occurred).
26     Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam); American Petrofina, Inc. v. Allen, 887 S.W.2d 829,
       830 (Tex.1994).
27     See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986).

28     TEX. CONST. art. I, § 13.

29     See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

30     917 S.W.2d 790, 794 (Tex.1996).

31     See id.

32     Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam).

33     Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–727 (Tex.1998) (quoting General Elec. Co. v. Joiner, 522 U.S.

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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

       136, 146, 118 S.Ct. 512, 523, 139 L.Ed.2d 508 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711–712
       (Tex.1997); Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202–204 (Tex.1980)).
34     TEX REV. CIV. STAT. ANN. art. 4590i, §§ 6.01–.08 (Vernon Supp.1999).

35     Id. § 6.04(a).

36     Id. § 6.04(b), (c).

37     Id. § 6.04(b).

38     Id. § 6.05.

39     Id. § 6.06.

40     The Texas Medical Disclosure Panel lists “spine operation” as a procedure requiring written disclosure, and defines the
       procedure as including “laminectomy, decompression, fusion, internal fixation or procedures for nerve root or spinal cord
       compression”. 25 TEX. ADMIN. CODE § 601.2(m)(3) (1998). The Panel has identified six risks which must be disclosed prior
       to a spine operation: “pain, numbness or clumsiness”, “impaired muscle function”, “incontinence or impotence”, “unstable
       spine”, “recurrence or continuation of the condition that required the operation”, and “injury to major blood vessels”. Id.
41     961 S.W.2d at 597.

42     912 S.W.2d 276, 285–286 (Tex.App.—Houston [14th Dist.] 1995, writ denied).

43     TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(1) (Vernon Supp.1999).

44     See Jim M. Perdue, The Law of Texas Medical Malpractice, Chapter X: Informed Consent, 22 HOUS. L. REV. 399, 426 n. 190
       (1985) (observing “[t]here appears to be no avenue for disputing th[e] presumption” of sections 6.05 and 6.06, that written
       disclosure of the panel’s enumerated risks is sufficient for List A procedures); Frank W. Elliott, The Impact of the Texas
       Medical Liability and Insurance Improvement Act on Informed Consent Recovery in Medical Malpractice Litigation, 10 TEX.
       TECH L. REV . 381, 387 (1979)(“[I]t appears that evidence that could rebut the presumption of disclosure under Section
       6.07(a)(1) is evidence that would attack the validity of the consent.”); COMM. ON PATTERN JURY CHARGES, STATE
       BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 51.15, cmt.
       (1997) (“If the physician has obtained the patient’s signature on a consent form ... containing the risks enumerated on list A, the
       only means by which the patient may recover for failure to obtain informed consent is to prove the invalidity of the form and
       that the risks had not otherwise been disclosed to him.”); see also Crundwell v. Becker, 981 S.W.2d 880 (Tex.App.—Houston [1
       st
          Dist.] 1998, pet. denied) (holding that the trial court’s directed verdict on an informed consent claim was not error when the
       patient who signed the consent form offered no evidence of incapacity).
45     TEX.REV.CIV. STAT. ANN. art. 4590i, § 12.01(a) (Vernon Supp.1999).

46     889 S.W.2d 239, 242 (Tex.1994).

47     Id.

48     Id. at 242–243.

49     907 S.W.2d 448, 449–450 (Tex.1995) (per curiam).

50     Id. at 450.

51     907 S.W.2d 446, 447–448 (Tex.1995) (per curiam).


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Earle v. Ratliff, 998 S.W.2d 882 (1999)
42 Tex. Sup. Ct. J. 919

52     985 S.W.2d 38, 40–41 (Tex.1998) (per curiam).




End of Document                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    10
Fung v. Fischer, 365 S.W.3d 507 (2012)



                                                              [7]
                                                                 patient was not entitled to extension of time to cure
                                                              deficient expert reports that effectively amounted to “no
                  365 S.W.3d 507
              Court of Appeals of Texas,                      report” as to physician.
                       Austin.

   Frederick FUNG, M.D.; Mindy Minicucci, R.N.;               Reversed in part, vacated in part, rendered in part, and
  Ana Urukalo, D.P.M.; The Austin Diagnostic Clinic           remanded.
   Association d/b/a Austin Diagnostic Clinic; The
   Austin Diagnostic Clinic, P.A.; Austin Diagnostic
                                                              Attorneys and Law Firms
            Clinic, P.A.; et al., Appellants,
                            v.                                *512 J. Mark Holbrook, W. Lance Cawthon, Janice M.
  Kathryn FISCHER and Myron Fischer, Appellees.               Byington, Davis & Wilkerson, P.C., Christanne Carlton,
                                                              Mark T. Beaman, Maria Cantu Hexsel, Germer, Gertz,
       No. 03–10–00298–CV. | April 13, 2012.
                                                              Beaman & Brown, L.L.P., Emily J. Davenport, Kemp
                                                              Smith, L.L.C., Austin, TX, for appellant.
Synopsis
Background: Patient brought action against podiatrist,        Paul S. Jacobs, The Jacobs Law Firm, Tanya N. Garrison,
primary care physician, nurse and clinics, alleging           Eleven Greenway, Houston, TX, Mark R. Mueller,
negligence relating to the alleged misdiagnosis and           Mueller Law Firm, Austin, TX, for appellee.
improper treatment of a cancerous tumor on patient’s
foot. The Probate Court No. 1, Travis County, Guy S.          Before Justices PURYEAR, PEMBERTON and ROSE.
Herman, J., overruled defendants’ objections to expert
reports and denied their motions to dismiss. Defendants
appealed.

                                                                                      OPINION
Holdings: The Court of Appeals, Jeff Rose, J., held that:     JEFF ROSE, Justice.
[1]
   objection by a defendant is not required as a predicate    Frederick Fung, M.D.; Mindy Minicucci, R.N.; Ana
for seeking dismissal of health care liability action when    Urukalo, D.P.M.; The Austin Diagnostic Clinic
the claimant has failed to serve a timely expert report;      Association d/b/a Austin Diagnostic Clinic; The Austin
[2]
                                                              Diagnostic Clinic, P.A.; Austin Diagnostic Clinic, P.A.;
     twenty-one-day deadline for objecting to the             The Austin Diagnostic Clinic, P.A. d/b/a Austin
sufficiency of expert reports was not triggered until the     Diagnostic Clinic Ambulatory Surgery Center; and The
expert reports were served on defendants;                     Austin Diagnostic Clinic Ambulatory Surgery Center
[3]
                                                              bring this interlocutory appeal of the probate court’s
   service of expert report addressing podiatrist’s conduct   orders concerning expert reports that Kathryn Fischer and
did not trigger clinic’s duty to object to sufficiency of     Myron Fischer provided in support of their health care
expert report to support direct-liability claim against       liability claims.
clinic;
[4]
                                                              Seven orders are challenged in this appeal: three orders
   physician had no duty to object to expert report served    overruling Minicucci’s, Urukalo’s, and the ADC
on other defendants before physician became a party to        appellants’ objections to appellees’ expert reports, three
the action;                                                   *513 corresponding orders denying these appellants’
[5]
                                                              motions to dismiss, and one order overruling Fung’s
    report addressing podiatrist’s standard of care           objections and denying his motion to dismiss. For the
constituted “no report” as to referring physician;            reasons that follow, as to Minicucci, Urukalo, and the
                                                              ADC appellants, we reverse the three orders overruling
[6]
    speculative and contradictory report concerning           their respective objections, vacate the three orders on their
physician’s negligence did not constitute a “good faith       respective motions to dismiss, and remand this case for
effort” at compliance with expert report requirement; and     consideration of those motions on the merits; and as to
                                                              Fung, we reverse the order overruling his objections and

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Fung v. Fischer, 365 S.W.3d 507 (2012)



denying his motion to dismiss, render judgment for him,        ADC parties, now adding an allegation of malice, and (2)
and remand this case for determination of his reasonable       Frederick Fung, M.D., alleging negligence, gross
attorney’s fees and costs under the civil practice and         negligence, and malice as a treating physician *514 and as
remedies code.                                                 a member of ADC’s board of directors. The Fischers’
                                                               fourth amended petition named as defendants: (1) Sara
                                                               LeViseur and (2) Mindy Minicucci, R.N., alleging the
                                                               negligence of each as an “employee, agent, or servant of
                                                               ADC’s Ambulatory Surgery Center”; and (3) David
                    BACKGROUND                                 Joseph, M.D., alleging negligence, gross negligence, and
                                                               malice as chairman of ADC’s board of directors and of
In 2007, the Fischers filed suit against Urukalo, a            the governing body of ADC’s Ambulatory Surgery
podiatrist, for her alleged negligence in misdiagnosing        Center. The same petition also included allegations that:
and improperly treating a cancerous tumor on Kathryn           (1) Fung was negligent as a member of the governing
Fischer’s foot. The Fischers’ original petition also alleged   body of ADC’s Ambulatory “Surgical” Center; (2)
that the Austin Diagnostic Clinic d/b/a Austin Diagnostic      Urukalo was negligent as a shareholder of ADC and
Clinic (ADC) was vicariously liable for Urukalo’s acts         committed the offenses of aggravated assault, battery,
and omissions and independently negligent for its lack of      securing execution of a document by deception,
policies and procedures on appropriate testing for certain     fraudulently concealing a writing, and injury to an elderly
types of cysts. In an effort to comply with the                individual; and (3) ADC was vicariously liable for the
requirements applicable to “health care liability claims”      negligence, malice, gross negligence, assault, and battery
under chapter 74 of the civil practice and remedies code,      committed by its employees, agents, servants, and vice
the Fischers in 2007 provided expert reports from Brad J.      principals and ADC was not a health care provider that
Bachmann, a podiatrist, and Mark E. Johnson, M.D.              practiced medicine; or alternatively, ADC was a health
These reports explicitly addressed only Urukalo’s acts or      care institution and was directly responsible for the
omissions and did not mention any acts or omissions by         negligence, gross negligence, and breach of fiduciary
ADC.1 Urukalo and ADC did not challenge the adequacy           duties of its “board of directors, medical executive
of these two reports, and this appeal does not concern the     committees, governing body, officers, and directors.”
Fischers’ health care liability claim that asserts Urukalo’s
negligence and shifts liability for her conduct to ADC as      In September 2009, almost two years after filing their
pled in the Fischers’ original petition in 2007. However,      original petition, the Fischers filed their fifth amended
Urukalo and ADC challenged the reports that the Fischers       petition. The Fischers’ fifth amended petition: (1)
provided in 2009, which are the focus of this appeal.          nonsuited by omission The Austin Diagnostic Imaging
                                                               Center, LeViseur, and Joseph; (2) added allegations that
Urukalo and ADC remained the only defendants in the            Urukalo committed the offenses of tampering with a
case for eighteen months until the Fischers filed a series     government record, tampering with physical evidence,
of five amended petitions between April and July of 2009.      and fraudulent destruction, removal, or concealment of a
Their first amended petition added allegations of gross        writing; (3) added allegations that ADC was directly
negligence and malice against Urukalo and an allegation        liable for ratifying Urukalo’s negligence, gross
of gross negligence against ADC. Their second amended          negligence, malice, and fraud; (4) added allegations that
petition added as defendants a host of other ADC-related       ADC was vicariously liable for “Urukalo’s aggravated
entities—“The Austin Diagnostic Clinic, P.A.; Austin           assault, battery, forgery, and any other conduct defined by
Diagnostic Clinic, P.A.; The Austin Diagnostic Imaging         the Texas Penal Code”; and (5) added allegations that
Center; and The Austin Diagnostic Clinic Ambulatory            ADC was vicariously liable for its employees’ conspiracy
Surgery Center”—in addition to the previously named            to commit fraud, negligence, gross negligence, and
Austin Diagnostic Clinic d/b/a Austin Diagnostic Clinic,       malice. Along with this petition, the Fischers provided a
alleging twenty-two categories of negligence and gross         supplemental expert report from Johnson and a new
negligence against the ADC defendants collectively             expert report from Joseph Varon, M.D.
concerning hiring, training, and supervision of
“employees, agents, servants, and vice-principals”;            The Fischers’ new expert reports from Johnson and Varon
authorization/ratification of the employees’, agents’,         triggered objections and motions to dismiss from
servants’, and vice-principals’ negligence; and overall        Minicucci, Urukalo, the ADC entities collectively, and
operation of the clinic. The Fischers’ third amended           Fung. While these objections and motions to dismiss were
petition added as defendants: (1) “The Austin Diagnostic       pending, the Fischers obtained an order transferring their
Clinic, P.A. d/b/a Austin Diagnostic Clinic Ambulatory         suit from district court to probate court. See Tex.Rev.Civ.
Surgery Center,” in addition to the previously named           Stat. Ann. § 608 (West Supp. 2011) (allowing transfer to

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Fung v. Fischer, 365 S.W.3d 507 (2012)



probate court of district court action that is related to     opinions. A health care liability claimant must serve each
guardianship proceeding pending in probate court).2 The       party or the party’s attorney with an expert’s report and
probate court held a hearing, took the matters under          the expert’s curriculum vitae within 120 days of filing the
advisement, and eventually signed orders overruling all of    original petition asserting a health care liability claim
the appellants’ objections—concluding specifically in         against that defendant. Carroll v. Humsi, 342 S.W.3d 693,
three of the orders that Minicucci’s, Urukalo’s, and          696–97 (Tex.App.-Austin 2011, no pet.); Hayes v.
ADC’s objections to the reports were untimely—and             Carroll, 314 S.W.3d 494, 501 (Tex.App.-Austin 2010, no
denying all of the appellants’ motions to dismiss. The        pet.); see Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)
court’s seven orders concerning Johnson’s supplemental        (stating statutory requirements).
report and Varon’s report are the subject of this appeal.
                                                              [2]
                                                                 An “expert report” is a written report by an expert that
The appellants’ issues have some overlap but are not          provides a fair summary of the expert’s opinions as of the
identical. All appellants argue that the Fischers did not     report’s date regarding: (1) applicable standards of care;
serve a timely *515 report addressing the “health care        (2) the manner in which the physician or health care
liability claim or claims” pled against them in 2009. All     provider’s care failed to meet the standards; and (3) the
appellants argue that they filed timely objections to the     causal relationship between that failure and the injury,
reports and thus did not waive their corresponding rights     harm, or damages claimed. Tex. Civ. Prac. & Rem.Code
to seek dismissal. Fung contends that the reports from the    Ann. § 74.351(r)(6). The report is intended to inform the
Fischers’ experts neither implicated him nor complied         defendant of the specific conduct that the claimant has
with chapter 74’s requirements. Our analysis of these         called into question and provide a basis for the trial court
issues begins with an overview of the statutory framework     to conclude that the claims have merit. Bowie Mem’l
governing health care liability claims set forth in chapter   Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing
74.                                                           American Transitional Care Ctrs. of Tex. v. Palacios, 46
                                                              S.W.3d 873, 879 (Tex.2001)).
                                                              [3] [4]
                                                                     A defendant may file a motion to dismiss if the
                                                              expert report is not timely served. Tex. Civ. Prac. &
                  APPLICABLE LAW                              Rem.Code Ann. § 74.351(b). If a defendant is not served
                                                              with an expert report within the 120–day period, the trial
Chapter 74 framework                                          court must enter an order on the motion of the physician
[1]
    Health care liability claims in Texas are governed by     or health care provider that dismisses the claim with
the Texas Medical Liability Act in chapter 74 of the civil    prejudice and awards fees and costs to the physician or
practice and remedies code. See Tex. Civ. Prac. &             health care provider. Id.; see Lewis v. Funderburk, 253
Rem.Code Ann. §§ 74.001–.507 (West 2011 & West                S.W.3d 204, 207 (Tex.2008). Reports that are timely
Supp. 2011). The code defines a “health care liability        served but substantively deficient may be eligible for a
claim” as                                                     thirty-day extension to cure the deficiencies when the
                                                              report: (1) contains the opinion of an individual with
            a cause of action against a                       expertise that the claim has merit and (2) implicates the
            physician or health care provider                 defendant’s conduct. See Scoresby v. Santillan, 346
            for treatment, lack of treatment, or              S.W.3d 546, 556 (Tex.2011) (citing Ogletree v.
            other claimed departure from                      Matthews, 262 S.W.3d 316, 317, 321 (Tex.2007) (noting
            accepted standards of medical care                that report that did not mention doctor’s *516 name but
            or health care, or safety or                      was directed solely to one doctor’s care “implicated [that
            professional or administrative                    doctor’s] conduct”)); see also Tex. Civ. Prac. &
            services directly related to health               Rem.Code Ann. § 74.351(r)(6) (defining expert report).
            care, which proximately results in
            injury to or death of a claimant,                 [5]
                                                                  A defendant whose conduct is implicated in a report
            whether the claimant’s claim or                   may file objections to the report’s sufficiency. Tex. Civ.
            cause of action sounds in tort or                 Prac. & Rem.Code Ann. § 74.351(a). Objections must be
            contract.                                         filed and served within twenty-one days after the date that
                                                              the defendant is served with the report implicating that
Id. § 74.001(a)(13). A primary feature of chapter 74’s        defendant’s conduct, otherwise the objections to the
framework is a series of requirements that health care        report’s sufficiency are waived. Id. The deadline for filing
liability claimants support their claims, early in a case,
                                                              objections to a report’s sufficiency is not triggered until:
with expert testimony and reports summarizing the expert
                                                              (1) the physician or health care provider becomes a

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Fung v. Fischer, 365 S.W.3d 507 (2012)



“party”—meaning that the claimant obtains service of                information contained in the four corners of the report in
process, waiver of service, or an appearance from the               reaching its ruling on a motion to dismiss. Palacios, 46
physician or health care provider named in the petition—            S.W.3d at 878. Further, a trial court cannot grant a motion
and (2) the claimant serves the expert report on that party         to dismiss that is based on untimely objections to the
or that party’s attorney. See Humsi, 342 S.W.3d at 698–             sufficiency of a report because a defendant’s untimely
99; see also Tex. Civ. Prac. & Rem.Code Ann. §                      objections are waived. See *517 Ogletree, 262 S.W.3d at
74.351(a) (stating statutory requirements); Key v. Muse,            322 (affirming denial of motion to dismiss because
352 S.W.3d 857, 863–64 (Tex.App.-Dallas 2011, no pet.);             hospital failed to raise timely objections to reports’
Dingler v. Tucker, 301 S.W.3d 761, 767 (Tex.App.-Fort               sufficiency and waived such objections); Bakhtari v.
Worth 2009, pet. denied); Yilmaz v. McGregor, 265                   Estate of Dumas, 317 S.W.3d 486, 493 (Tex.App.-Dallas
S.W.3d 631, 638 (Tex.App.-Houston [1st Dist.] 2008, pet.            2010, no pet.) (noting that trial court could not grant
denied).                                                            motion to dismiss based on untimely objections); see also
                                                                    Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a).
[6] [7]
      By contrast, there is no deadline in chapter 74 for a
defendant to object to an expert report as untimely, or
even a requirement that a defendant object at all as a
predicate for seeking dismissal when the claimant has               Jurisdiction
                                                                    [12]
failed to serve a report within 120 days. Poland v.                      As a preliminary matter, we address and reject the
Grigore, 249 S.W.3d 607, 616 (Tex.App.-Houston [1st                 Fischers’ impromptu assertion made at oral argument that,
Dist.] 2008, no pet.); see Victoria Gardens of Frisco v.            for various reasons, this Court lacks jurisdiction to
Walrath, 257 S.W.3d 284, 290 (Tex.App.-Dallas 2008,                 consider this interlocutory appeal.3 The Fischers first
pet. denied) (holding that twenty-one-day deadline applies          argue that there is no statutory authorization for this
only to objections about timely served report’s                     interlocutory appeal. However, the plain language of the
“sufficiency,” not to objections about report’s                     statute authorizing interlocutory appeals permits a
untimeliness); see also Methodist Charlton Med. Ctr. v.             defendant to appeal from an order that “denies all or part
Steele, 274 S.W.3d 47, 51 (Tex.App.-Dallas 2008, pet.               of the relief sought by a motion under Section 74.351(b),”
denied) (holding that complaint in motion to dismiss                the section that addresses motions to dismiss a claim for a
about failure to timely serve reports was not subject to            plaintiff’s failure to serve a timely expert report.4 Tex.
twenty-one-day deadline for objections to report’s                  Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (West Supp.
sufficiency). This means that there is no duty to object to         2011). The orders appealed here denied the relief—
an expert report that was never served, that was served             dismissal and fees—sought in appellants’ motions to
untimely, or that was so deficient as to constitute no              dismiss, which were based upon the Fischers’ failure to
report at all within the 120–day period. See Funderburk,            serve timely and adequate expert reports. See id. §
253 S.W.3d at 207 (explaining that “an expert report has            74.351(b); Funderburk, 253 S.W.3d at 207 (concluding
not been served” when “an inadequate report has been                that doctor’s motion seeking dismissal and fees for report
served”); Bogar v. Esparza, 257 S.W.3d 354, 361                     that was considered “not served” because of its
(Tex.App.-Austin 2008, no pet.) (noting that complaints             inadequacy was section 74.351(b) motion and was
about absent report, timely but deficient report, or timely         immediately appealable); Bogar, 257 S.W.3d at 361
report that fails to implicate defendant’s conduct and is           (noting Funderburk’s clarification that availability of
effectively “no report” are same for purpose of                     interlocutory appeal is not dependent on whether motion’s
interlocutory review).                                              grounds relate to absent report, timely but deficient report,
                                                                    or timely report that fails to implicate defendant’s conduct
                                                                    and is effectively “no report”); cf. Academy of Oriental
                                                                    Med., L.L.C. v. Andra, 173 S.W.3d 184, 186, 189
Standard of review                                                  (Tex.App.-Austin 2005, no pet.) (concluding that
[8] [9] [10] [11]
                  We review a trial court’s rulings on motions to   defendants’ motion was not brought under section
dismiss health care liability claims for an abuse of                74.351(b) because it was filed before expiration of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93                  claimant’s 120–day period for serving expert reports and
(Tex.2006); Palacios, 46 S.W.3d at 877. A trial court               sought only to strike expert report). Thus, this Court has
abuses its discretion by rendering an arbitrary and                 jurisdiction over this interlocutory appeal pursuant to
unreasonable decision lacking support in the facts or               section 51.014(a)(9) of the civil practice and remedies
circumstances of the case or by acting in an arbitrary or           code.
unreasonable manner without reference to guiding rules
or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410             The Fischers next argue that this Court lacks jurisdiction
(Tex.2011) (plurality op.). The trial court is limited to the       because there is no actual controversy between the

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Fung v. Fischer, 365 S.W.3d 507 (2012)



parties, alleging that “[a]ppellants admit that sufficient    served with the reports. Minicucci’s objections began
reports were timely filed and served as to Mrs. Fischer’s     with the assertion that the Fischers had not served her
health care liability claim in this case.” The record         with process and explained that she filed the objections to
disproves this argument. As noted previously, all             the sufficiency of the reports out of an abundance of
appellants argue that the Fischers failed to serve timely     caution. Minicucci’s motion to dismiss reiterated her
expert reports; Minicucci, Urukalo, and ADC further           objections to the sufficiency of the reports and pointed out
argue that the trial court erred in overruling their          that she was not served with the Fischers’ expert reports
objections to the reports as untimely; and Fung contends      within the statutory 120–day period.
that deficiencies in the reports rendered them the
equivalent of “no report” as to him. As such, the Fischers’   The probate court overruled Minicucci’s objections,
argument that we lack jurisdiction because there is no        “find[ing] that the objections were untimely under Texas
actual controversy between the parties lacks merit.           Civil Practice & Remedies Code § 74.351(a).” The same
                                                              day, the court signed an order denying her motion to
The Fischers also argue—based on governmental-                dismiss.
immunity cases—that this *518 Court lacks jurisdiction
                                                              [13]
because appellants waived the protection of section               In her first issue, Minicucci contends that because she
74.351 by failing to plead that specific section of the       was not served with the expert reports as required by
statute. The Fischers’ cited cases are inapposite. See City   chapter 74, her twenty-one-day deadline was not triggered
of Dallas v. Moreau, 718 S.W.2d 776, 778 (Tex.App.-           and her objections to the sufficiency and lack of service of
Corpus Christi 1986, writ ref’d n.r.e.) (noting that City     the expert reports could not have been untimely.
raised defense of governmental immunity from suit in its      Minicucci also contends that the probate court’s
pretrial and post-verdict motions); City of Brownsville v.    erroneous ruling that all of her objections were untimely
Pena, 716 S.W.2d 677, 680–81 (Tex.App.-Corpus Christi         under section 74.351(a) necessarily resulted in the denial
1986, no writ) (concluding that City never pled its           of her motion to dismiss addressing the merits of those
governmental immunity from liability). Similar to the         objections. See *519 Rosemond v. Al–Lahiq, 331 S.W.3d
claimant in Sedeno v. Mijares, 333 S.W.3d 815, 823            764, 767 (Tex.2011) (“The issue of timeliness is a
(Tex.App.-Houston [1st Dist.] 2010, no pet.), the Fischers    threshold issue in the expert report framework the
cite no authority supporting their argument that the          Legislature enacted.”). We note that when ruling on
dismissal provision in chapter 74 is an affirmative defense   Minicucci’s motion to dismiss, the probate court could
that must be pled. See id. Like the court in Sedeno, we       not have considered objections that were untimely
have found no authority suggesting that a defendant is        because untimely objections would have been waived. See
“required to file any additional pleadings to invoke its      Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a).
right to file a motion to dismiss pursuant to section
74.351.” Id. Further, the record reflects that appellants’    In response to this issue, the Fischers concede that
answers pled the protection of chapter 74 and that the        “Minicucci’s objections were timely,” and we agree and
Fischers acknowledged appellants as health care               hold accordingly. See Humsi, 342 S.W.3d at 702–03
providers.5 Accordingly, the Fischers’ argument that we       (concluding that report provided to attorney for named
lack jurisdiction because appellants waived the protection    defendant who had not been made “a party” to lawsuit
of chapter 74 is unpersuasive. Having determined that         was not served on “a party or the party’s attorney” within
there is no jurisdictional bar to this appeal, we now         meaning of chapter 74); Dingler, 301 S.W.3d at 767
consider appellants’ issues.                                  (concluding that service of report on counsel who
                                                              ultimately came to represent doctor failed to comply with
                                                              chapter 74 because doctor was nonparty when report was
                                                              served); University of Tex. Health Sci. Ctr. at Houston v.
                                                              Gutierrez, 237 S.W.3d 869, 872–73 (Tex.App.-Houston
                       ANALYSIS                               [1st Dist.] 2007, pet. denied) (concluding that nonparty
                                                              health science center’s receipt of courtesy copy of expert
Nurse Minicucci’s objections and motion to dismiss            report from someone other than claimants did not
Minicucci, a nurse who provided preoperative and              establish service of report complying with chapter 74).
recovery care to Kathryn Fischer and witnessed her            But they contend, without citation to the record, that “her
signature on the surgical consent form, was named in the      motion to dismiss was not denied on that basis” so the
Fischers’ fourth amended petition but was not served with     error “is of no consequence.” We disagree.
it. After counsel for Urukalo and ADC received Johnson’s
supplemental report and Varon’s report, Minicucci             The order overruling Minicucci’s objections specifies that
decided to file her objections despite not having been        the probate court found the objections untimely. Although

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Fung v. Fischer, 365 S.W.3d 507 (2012)



we hold here that the objections were timely, and thus          dismiss was based on her previously filed objections,
should have been considered by the probate court when           which if untimely, were waived and would not have been
ruling on Minicucci’s corresponding motion to dismiss, it       considered toward her motion to dismiss.
would have been improper for the court to consider the
merits of the objections after ruling that they were            The Fishers served Varon’s and Johnson’s reports on
untimely. See Ogletree, 262 S.W.3d at 322 (holding that         September 25, 2009, and September 29, 2009,
because hospital failed to object within statutory twenty-      respectively. Urukalo filed and served her objections to
one day period, it waived its objections, and trial court       Varon’s report and to Johnson’s supplemental report on
correctly denied hospital’s motion to dismiss); Bakhtari,       October 16, 2009. The Fischers’ response filed with the
317 S.W.3d at 493 (concluding that trial court could not        probate court acknowleged that Urukalo filed timely
grant motion to dismiss based on objections that were           objections to the 2009 reports from Varon and Johnson. 6
untimely); see also Tex. Civ. Prac. & Rem.Code Ann. §           We agree that Urukalo’s October 16 objections were
74.351(a). Thus, although the order denying Minicucci’s         timely because they were filed and served “not later than
motion to dismiss states that the court reviewed the            the 21st day after the date [she] was served” with the
pleadings, responses, and arguments of counsel, we must         September 25 and September 29 reports. See Tex. Civ.
assume that the probate court did not consider the              Prac. & Rem.Code Ann. § 74.351(a).
substance of Minicucci’s objections, which it found
untimely.                                                       Nevertheless, the order overruling Urukalo’s objections
                                                                specifies that the probate court found the objections
Having determined that Minicucci’s objections were              untimely. Although we hold here that the objections were
timely under section 74.351(a) of the civil practice and        timely, and thus should have been considered by the
remedies code, we conclude that the probate court abused        probate court when ruling on Urukalo’s corresponding
its discretion in finding to the contrary and that this error   motion to dismiss, it would have been improper for the
caused the objections not to be considered in Minicucci’s       court to consider the merits of the objections after ruling
corresponding motion to dismiss. As such, we sustain            that they were untimely. See Ogletree, 262 S.W.3d at 322
Minicucci’s first issue, reverse the probate court’s order      (holding that because hospital failed to object within
overruling Minicucci’s objections as untimely, vacate the       statutory twenty-one day period, it waived its objections,
order denying her motion to dismiss, and remand this case       and trial court correctly denied hospital’s motion to
so that the court may consider the merits of Minicucci’s        dismiss); Bakhtari, 317 S.W.3d at 493 (concluding that
objections and her motion to dismiss.                           trial court could not grant motion to dismiss based on
                                                                objections that were untimely); see also Tex. Civ. Prac. &
                                                                Rem.Code Ann. § 74.351(a). Thus, although the order
                                                                denying Urukalo’s motion to dismiss states that the court
Podiatrist Urukalo’s objections and motion to dismiss           reviewed the pleadings, responses, and arguments of
[14]
     Urukalo is the podiatrist who treated the mass on          counsel, we must assume that it did not consider the
Kathryn Fischer’s foot. Like Nurse Minicucci, Urukalo           substance of Urukalo’s objections, which it found
contends that the trial court abused its discretion by          untimely.
overruling her objections to the 2009 expert reports as
untimely and that this error necessarily resulted in the        Having determined that Urukalo’s objections were timely
denial of her motion to dismiss.                                under section 74.351(a) of the civil practice and remedies
                                                                code, we conclude that the probate court abused its
Urukalo objected to the 2009 reports from Varon and             discretion in finding to the contrary, and that this error
Johnson as substantively deficient and also untimely            caused the objections not to be considered in Urukalo’s
because they were served more than 120 days after the           corresponding motion to dismiss. As such, we sustain
November 2, 2007 filing of the Fischers’ petition               Urukalo’s first issue, reverse the probate court’s order
asserting a “health care liability *520 claim” against her.     overruling Urukalo’s objections as untimely, vacate the
See Humsi, 342 S.W.3d at 696–97; Hayes, 314 S.W.3d at           order denying her motion to dismiss, and remand this case
501; see also Tex. Civ. Prac. & Rem.Code Ann. §                 so that the court may consider the merits of Urukalo’s
74.351(a). Urukalo filed a corresponding motion to              objections and her motion to dismiss.
dismiss directed to the Fischers’ allegations of gross
negligence, malice, fraud, aggravated assault, battery,
forgery, securing execution of a document by deception,
and fraudulent destruction, removal, or concealment of a        *521 ADC’s objections and motion to dismiss
writing, all of which were pled for the first time in 2009.     According to the Fischers’ pleadings, the various ADC
Similar to Minicucci’s motion, Urukalo’s motion to              entities and their “employees, agents, and servants”

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Fung v. Fischer, 365 S.W.3d 507 (2012)



provided treatment to Kathryn Fischer. ADC filed               for a “health care liability claim,” which chapter 74
objections and a corresponding motion to dismiss               defines, in relevant part, as a cause of action for
collectively on behalf of all the ADC entities named in the    treatment, lack of treatment, or other claimed departure
Fischers’ suit. The probate court’s orders overruling these    *522 from accepted standards of medical care or health
objections as untimely and denying the motion to dismiss       care, or safety or professional or administrative services
do not distinguish between the original ADC defendant          directly related to health care, proximately resulting in a
and the four ADC entities added as defendants in 2009.         claimant’s injury. Id. § 74.001(a)(13). A “cause of action”
We will calculate statutory deadlines for objections           is defined as “a fact or facts entitling one to institute and
applicable to the original ADC defendant and the four          maintain an action, which must be alleged and proved in
ADC entities based on the timing of their addition as          order to obtain relief” and as a “group of operative facts
defendants to the Fischers’ lawsuit; however, given that       giving rise to one or more bases for suing; a factual
the ADC appellants were treated collectively in the orders     situation that entitles one person to obtain a remedy in
that are the subject of this appeal, we reserve for the        court from another person.” In re Jorden, 249 S.W.3d
probate court, and express no opinion on, the propriety of     416, 421 (Tex.2008) (orig. proceeding). Consequently,
the Fischers’ addition of these four ADC entities as           the Legislature’s use of “cause of action” signals that we
defendants or the merits of whether those additional           are to look at the operative facts to define a particular
entities should be treated distinctly from the original ADC    cause of action, rather than the particular legal theories
defendant.                                                     put forth based on those facts. Cardwell v. McDonald,
                                                               356 S.W.3d 646, 654 (Tex.App.-Austin 2011, no pet.).
                                                               [18] [19]
                                                                      Here, the facts required to establish the defendant’s
1. Original ADC defendant’s objections to lack of              vicarious liability, i.e., the acts of Urukalo and Urukalo’s
report and late reports                                        relationship to ADC, differ from the facts required to
The ADC appellants’ first issue, phrased somewhat              establish the original ADC defendant’s direct liability,
differently than Minicucci’s and Urukalo’s issues,             i.e., ADC’s provision of particular policies and
similarly contends that the original ADC defendant’s           procedures. Under the doctrine of respondeat superior, an
objections to the 2009 expert reports were timely and that     employer or principal may be vicariously liable for the
the original ADC defendant’s lack of objection to the          tortious acts of an employee or agent acting within the
2007 reports did not waive its right to seek dismissal as to   scope of the employment or agency, even though the
the Fischers’ health care liability claim asserting the        principal or employer has not personally committed a
original ADC defendant’s direct liability, which was not       wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42
mentioned by any expert report within the 120–day              (Tex.2002) (citing Baptist Mem’l Hosp. Sys. v. Sampson,
deadline. The ADC appellants argue that because the            969 S.W.2d 945, 947 (Tex.1998)). If a party’s alleged
2007 reports did not address the Fischers’ direct-liability    health care liability is purely vicarious, a report that
claim against the original ADC defendant alleging a lack       adequately implicates the actions of that party’s agents or
of adequate policies and procedures, the cause of action       employees is sufficient. Gardner v. U.S. Imaging, Inc.,
based on those facts in the Fischers’ 2007 original petition   274 S.W.3d 669, 671–72 (Tex.2008).
was not supported by a timely report and as such, the
original ADC defendant had no duty to object. 7 The            In Gardner, the Texas Supreme Court stated its qualified
Fischers contend that because the original ADC defendant       agreement with the claimants’ contention that a report as
did not object to the 2007 reports, it waived all of its       to a doctor who performed a lumbar epidural procedure
objections, including its objections to the 2009 reports       on a claimant could also suffice to support the alleged
and its corresponding right to seek dismissal. Apparently      liability of the owner and operator of the facility where
persuaded by this argument, the probate court overruled        the claimant’s procedure was performed because the
ADC’s collective objections to the 2009 reports,               facility owner’s liability was purely vicarious. Id. (“To the
specifically “find[ing] that the objections were untimely      extent that the Gardners allege that SADI is liable only
under Texas Civil Practice & Remedies Code §                   vicariously for Dr. Keszler’s actions, the expert
74.351(a).”8                                                   requirement is fulfilled as to SADI if the report is
                                                               adequate as to Dr. Keszler.”); see University of Tex. Sw.
[15] [16] [17]
            A health care liability claimant must serve each   Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas
party or the party’s attorney with an expert report within     2006, no pet.). The converse implication of Gardner is
120 days of filing the petition asserting a health care        that if a party’s alleged health care liability is not “purely
liability claim against that defendant. Humsi, 342 S.W.3d      vicarious” but direct, then a report that implicates only the
at 696–97; Hayes, 314 S.W.3d at 501; see also Tex. Civ.        actions of that party’s agents or employees is insufficient
Prac. & Rem.Code Ann. § 74.351(a). Reports are required        to that extent. Cf. Gardner, 274 S.W.3d at 671–72.

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Fung v. Fischer, 365 S.W.3d 507 (2012)



                                                               S.W.3d 264, 270–71 (Tex.App.-Corpus Christi 2009, pet.
In University of Texas Southwestern Medical Center v.          denied) (holding that trial court abused its discretion by
Dale—a decision the supreme court cited in Gardner—            denying defendant’s objection to expert report as it related
the court contrasted the expert testimony required when        to claimant’s allegation of direct liability because report
the defendant’s alleged health care liability is merely        failed to address how defendant’s direct conduct, such as
vicarious with the testimony required to support an            implementation of procedures, policies, or rules, deviated
allegation of health care liability based on the defendant’s   from applicable standard of care); Obstetrical &
direct negligence. 188 S.W.3d at 879. The Dale claimants       Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96,
did not assert that UT Southwestern was itself negligent       103 (Tex.App.-Houston [14th Dist.] 2009, pet. denied)
but rather, its liability was predicated entirely on its       (noting that if plaintiff asserts health care liability claim
resident physicians’ actions. Id. UT Southwestern argued       alleging professional association’s direct liability, then
that it was not served with a report because it was not        plaintiff is required to serve report specifically addressing
named in any report. Id. at 878. After observing that the      association’s conduct, rather than just conduct of
expert report functions to (1) inform the defendant of the     physicians for which it is vicariously liable); Steele, 274
specific conduct the plaintiff has called into question, and   S.W.3d at 51 (noting that assertion of hospital’s vicarious
(2) provide the trial court with a basis from which to         liability for nurse’s negligence was distinct from
conclude the claims have merit, the court reasoned that        complaints about hospital’s negligent hiring, supervision,
“what is relevant for purposes of the expert report *523 is    training, and retention, which concerned hospital’s direct
that it specifically identify the person whose conduct the     negligence and required expert report); Center for
plaintiff is calling into question and show how that           Neurological Disorders, P.A. v. George, 261 S.W.3d 285,
person’s conduct constituted negligence.” Id. at 878–79.       294 (Tex.App.-Fort Worth 2008, pet. denied) (concluding
The court specified that because the Dales “were not           that expert’s report addressing only professional
alleging that UT Southwestern was directly negligent,”         association’s vicarious liability was deficient because it
the expert report was not required to mention UT               made no attempt to address any of claimants’ direct-
Southwestern by name and would not have explained how          liability allegations); see also Hendrick Med. Ctr. v.
UT Southwestern “breached the standard of care and how         Miller, No. 11–11–00141–CV, 2012 WL 314062, at *3–4,
that breach caused or contributed to the cause of injury.”     2012 Tex.App. LEXIS 683, at *10–14 (Tex.App.-
Id. at 879.                                                    Eastland Jan. 26, 2012, no pet.) (mem. op.) (concluding
                                                               that health care defendant’s direct liability and vicarious
[20]
    Here, unlike Gardner and Dale, the alleged health care     liability are separate claims requiring independent
liability of the original ADC defendant was not “purely        evaluation and holding that “procedures and protocols”
vicarious.” The Fischers’ original petition alleged not        claim alleging medical center’s direct liability should
only that liability for Urukalo’s acts and omissions should    have been dismissed for lack of expert report); contra
be passed through to ADC—which need not have                   Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 693
committed a wrong to have her liability imputed to it—         (Tex.App.-Houston [1st Dist.] 2011, pet. filed) (op. on
but that ADC itself was negligent based on a separate set      reh’g) (allowing suit *524 against nurse staffing agency to
of operative facts: its lack of adequate policies and          proceed without expert testimony addressing agency’s
procedures for the appropriate testing of certain types of     direct liability when claimant had served report
cysts. The facts that the Fischers alleged to impose direct    addressing agency’s vicarious liability arising from same
liability constitute a separate health care liability claim    group of operative facts in report). Based on the facts in
requiring expert support.                                      this record, we conclude that the Fischers pled two health
                                                               care liability claims—one asserting purely vicarious
The requisite expert testimony on the original ADC             liability to shift responsibility for Urukalo’s conduct to
defendant’s standard of care, the breach of such standard      ADC (the vicarious-liability claim) and another asserting
of care, and the causal relationship between any such          that ADC itself was directly negligent because of its
breach and an injury could not have been fulfilled with        alleged failure to put forth adequate policies and
testimony in a report addressing only Urukalo’s conduct        procedures (the direct-liability claim)—each requiring
as a podiatrist and wholly failing to identify how the         supportive expert testimony.9
original ADC defendant’s conduct amounted to
negligence. See Tex. Civ. Prac. & Rem.Code Ann. §              To be timely in this case, a report addressing the Fischers’
74.351(r)(6) (defining “expert report”); Petty v. Churner,     direct-liability claim against the original ADC defendant
310 S.W.3d 131, 138 (Tex.App.-Dallas 2010, no pet.)            should have been served by March 3, 2008—120 days
(affirming trial court’s dismissal of health care liability    from the filing of the Fischers’ original petition
claim alleging direct liability that was unaddressed in        containing the cause of action for an alleged lack of
expert’s report); RGV Healthcare Assocs. v. Estevis, 294       adequate policies and procedures. See Tex. Civ. Prac. &

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Fung v. Fischer, 365 S.W.3d 507 (2012)


                                                                [22]
Rem.Code Ann. § 74.351(a).10 The only reports served on             Further, the 2009 reports served in support of the
the original ADC defendant before March 3, 2008, were           Fischers’ direct-liability claims against the original ADC
the 2007 reports from Bachmann and Johnson, neither of          defendant were untimely. Because belated service of an
which makes any reference to ADC’s direct liability, its        expert report is an incurable procedural defect, an
alleged lack of adequate policies and procedures, the           objection to a late-served report is not subject to the
applicable standard of care for ADC, any breach of that         twenty-one-day deadline. See Grigore, 249 S.W.3d at
standard, or any causal relationship between an alleged         615–16 (noting that procedure for objections in section
breach and an injury. In fact, both Bachmann’s and              74.351(c) is for those that are not based on belated service
Johnson’s 2007 reports limit their opinions to “the care        “because once a report is late, it remains late: no ‘cure’
rendered only by Ana Urukalo, D.P.M.” Subsequent                exists to render an untimely report timely”); see Walrath,
reports from Varon and Johnson purporting to address the        257 S.W.3d at 290 (holding that twenty-one-day deadline
Fischers’ direct-liability claim against the original ADC       applies only to objections about report’s “sufficiency” or
defendant were not served until September 2009, more            substance, not to objections about report’s untimeliness);
than 1 ½ years after the Fischers’ 120–day deadline             see also Steele, 274 S.W.3d at 51 (holding that complaint
expired.                                                        about failure to serve timely expert reports raised in
                                                                motion to dismiss was not subject to twenty-one-day
[21]
    The 2007 reports failed to address the Fischers’ direct-    deadline for objections to expert report’s sufficiency).
liability claim. A defendant’s duty to object to the            Thus, the objection that the 2009 reports purporting to
sufficiency of an expert report and the corollary twenty-       address the Fischers’ direct-liability claim against the
one-day deadline is triggered by the service of a report        original ADC defendant were served too late—more than
implicating the defendant’s complained-of conduct. See          1 ½ years after the filing of the 2007 original petition
id. Here, the Fischers’ 2007 petition pled the original         alleging ADC’s direct liability—was not subject to the
ADC defendant’s liability for its own negligence due to         twenty-one-day deadline in section 74.351(a), and raising
an alleged lack of adequate policies and procedures, but        that objection in 2009 did not result in any waiver.
the Fischers served no report within 120 days *525
supporting that health care liability claim. They had to        At the hearing before the probate court, the Fischers
serve a report—not just a petition—supporting their 2007        acknowledged initially that they did not timely serve the
direct-liability claim.11 See Churner, 310 S.W.3d at 138        original ADC defendant with the 2009 reports from Varon
(affirming trial court’s dismissal of health care liability     and Johnson. But they also argued that the 2009 reports
claim alleging direct liability that was unaddressed in         were timely for their “current allegations” against the
expert’s report); see also Hendrick Med. Ctr., 2012 WL          original ADC defendant because they nonsuited the
314062, at *4, 2012 Tex.App. LEXIS 683, at *13–14               “generically [pled] policies and procedures” claim in their
(dismissing “direct liability claim regarding procedures        2007 original petition *526 and replaced it with “specific
and protocols” because no expert report addressed it).          allegations” in their 2009 fifth amended petition. On
                                                                appeal, they further argue that as to the original ADC
No duty to object to the sufficiency of the reports arose       defendant, the 2009 reports were “supplemental.”
until the Fischers served a report addressing their direct-
                                                                [23]
liability claim against the original ADC defendant. See             We reject the notions that the Fischers’ nonsuit and
Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (requiring          repleading restarted their expired deadline for serving an
objections to report’s sufficiency within twenty-one days       expert report addressing their health care liability claim
from each defendant health care provider “whose conduct         asserting the original ADC defendant’s direct liability and
is implicated in a report”); McCoy, 283 S.W.3d at 103           that their “supplemental” report may provide essential
(noting that if plaintiff asserts health care liability claim   information for that health care liability claim that was
alleging professional association’s direct liability, then      omitted from the previously served expert reports. See
plaintiff is required to serve report specifically addressing   Richburg v. Wolf, 48 S.W.3d 375, 378 (Tex.App.-
association’s conduct, rather than just conduct of              Eastland 2001, pet. denied) (holding, under predecessor
physicians for which it is vicariously liable, and if           statute, that unless trial court grants extension of time,
plaintiff serves no such report, association “could not         supplemental report cannot supply critical information
have waived any complaints about [report’s]                     omitted from original report—such as standard of care,
sufficiency”). Because the original ADC defendant had no        breach, and causation—after statutory period has expired,
duty to object in 2007—when the Fischers served no              even if original report was timely filed).
report supporting their direct—liability claim against the
original ADC defendant—the absence of a sufficiency             The original ADC defendant faced no deadline for
objection in 2007 did not result in any waiver.                 objecting to the lack of a report in 2007 and to the 2009
                                                                reports’ late service; thus its objections could not have

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Fung v. Fischer, 365 S.W.3d 507 (2012)



been untimely. The original ADC defendant did have a           Having determined that the ADC defendants’ objections
deadline for objecting to the substance of the 2009            were timely under section 74.351(a) of the civil practice
reports, and those objections were timely filed and served.    and remedies code, we conclude that the probate court
The record reflects that the Fischers served the original      abused its discretion in finding to the contrary and that
ADC defendant with Varon’s report on September 25,             this error caused the objections not to be considered in the
2009 and Johnson’s supplemental report on September            ADC defendants’ corresponding motion to dismiss. As
29, 2009, and ADC collectively filed and served its            such, we sustain the ADC appellants’ first issue, reverse
objections on October 16, 2009, which was “not later than      the probate court’s order overruling the ADC defendants’
the 21st day after the date [the original ADC defendant]       objections as untimely, vacate the order denying the ADC
was served” with both of those reports. See Tex. Civ.          defendants’ motion to dismiss, and remand this case so
Prac. & Rem.Code Ann. § 74.351(a).                             that the court may consider the merits of the ADC
                                                               defendants’ objections and motion to dismiss.


2. Additional ADC entities’ objections to 2009 reports
After the Fischers missed their 120–day deadline for           Dr. Fung’s objections and motion to dismiss were
serving a report supporting their direct-liability claim       based on the merits
against the original ADC defendant, they filed a series of     Dr. Fung is an internal medicine physician who referred
amended petitions. On May 29, 2009, the Fischers filed a       Kathryn Fischer to Urukalo and issued Fischer’s
second amended petition that for the first time pled health    presurgical clearance. The probate court signed an order
care liability claims alleging the direct and vicarious        denying Fung’s motion to dismiss and overruling his
liability of four additional ADC entities that they added as   objections to the 2009 expert reports but did not state that
defendants. Assuming without deciding that the addition        Fung’s objections were untimely; thus, Fung is differently
of these four ADC entities was appropriate, the 120–day        situated in that the denial of his motion to dismiss was
deadline for serving expert reports addressing health care     based on the merits of the arguments presented to the
liability claims against them was September 28, 2009. See      probate court.
id.; Tex.R. Civ. P. 4. Varon’s report, filed and served on
September 25, 2009, was timely as to these four                The Fischers named Fung for the first time in their June
defendants, but Johnson’s supplemental report, filed and       17, 2009 third amended petition, alleging his negligence,
served on September 29, 2009, was not. On October 16,          malice, and gross negligence. Fung states, and the
2009, within twenty-one days of being served with both         Fischers do not deny, that he was added to their suit after
of these reports, ADC collectively filed and served its        they took his deposition and after two years of discovery
timely objections.                                             between the other parties, including electronic medical
                                                               record documentation and five other physicians’
Nevertheless, the order overruling the ADC defendants’         depositions. The Fischers served Fung with Varon’s
objections specifies that the probate court found the          report on September 24, 2009, and with Johnson’s
objections untimely. Although we hold here that the            supplemental report on September 25, 2009. Fung timely
objections were timely, and thus should have been              filed his objections to the reports and a motion to dismiss
considered by the trial court when ruling on the ADC           on October 15, 2009. Fung was not a party to the
defendants’ corresponding motion to dismiss, it would          Fischers’ suit in 2007 and was not served with or
have been improper for the trial court to consider the         mentioned by the reports from Bachmann and Johnson
merits of the objections after ruling that they were           accompanying the Fischers’ original petition. Instead, as
untimely. See Ogletree, 262 S.W.3d at 322 (holding that        previously noted, both of those reports limit their opinions
because hospital waived its untimely objections, trial         to “the care rendered only by Ana Urukalo, D.P.M.”
court correctly denied hospital’s motion to dismiss);
Bakhtari, 317 S.W.3d at 493 (concluding that trial court
could not grant motion to dismiss based on objections that
were untimely); see also Tex. Civ. Prac. & Rem.Code            Fischers’ arguments that Fung’s objections were
Ann. § 74.351(a). Thus, although the order denying the         untimely lack merit
                                                               [24]
ADC defendants’ motion to dismiss states that the court             The Fischers argued to the probate court that although
reviewed the pleadings, responses, *527 and arguments of       Fung was not a party in 2007 and was not served with
counsel, we must assume that it did not consider the           Bachmann’s report and Johnson’s initial report, Fung
substance of the ADC defendants’ objections, which it          failed to object to the 2007 reports and therefore waived
found untimely.                                                any objection to considering them in conjunction with
                                                               their 2009 reports.12 Within his first issue, Fung argues

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Fung v. Fischer, 365 S.W.3d 507 (2012)



that his objections to the 2009 reports were timely and        Bogar, 257 S.W.3d at 360–61. In his first issue, Fung
that, as to him, the 2007 reports are not before the court     argues that Johnson’s supplemental report does not
and cannot be considered in combination with the 2009          implicate him and that Varon’s report requires the court to
reports because the earlier reports do not implicate him       make inferences about Fung’s negligence that are
and he was not served with them. Cf. Tex. Civ. Prac. &         contrary to Varon’s own opinions in the report. We
Rem.Code Ann. § 74.351(i) (allowing expert reports to be       consider each of these arguments in turn.
considered together in determining whether adequate
expert report has been served).

The record reflects that the reports from Bachmann and         1. Johnson’s supplemental report
                                                               [25] [26]
Johnson were filed and served with the Fischers’ original                Chapter 74 defines an “expert report” as a written
petition on November 2, 2007, long before *528 Fung            report by an expert that provides a fair summary of the
was a party to the suit.13 As previously discussed, a          expert’s opinions as of the date of the report regarding:
deadline for filing objections to the substance of a report    (1) applicable standards of care; (2) the manner in which
is not triggered until the physician or health care provider   the care rendered by the physician or health care provider
becomes a “party” and the claimant serves the expert           failed to meet the standards; and (3) the causal
report on that party or that party’s attorney. See, e.g.,      relationship between that failure and the injury, harm, or
Humsi, 342 S.W.3d at 698–99; see also Tex. Civ. Prac. &        damages claimed. See Tex. Civ. Prac. & Rem.Code Ann.
Rem.Code Ann. § 74.351(a). Fung was not a party to the         § 74.351(r)(6). A report that omits one or more of these
Fischers’ suit when they served the reports from               required elements, or states the expert’s opinion as mere
Bachmann and Johnson in 2007, and the Fischers never           conclusions without supporting facts, is insufficient to
served Fung with those reports; thus, he had no duty to        constitute a “good faith effort” at compliance with chapter
object to them. See Tex. Civ. Prac. & Rem.Code Ann. §          74. See Samlowski, 332 S.W.3d at 409–10; Palacios, 46
74.351(b) (authorizing dismissal of claim if after 120–day     S.W.3d at 879; see also Tex. Civ. Prac. & Rem.Code
period “an expert report has not been served”); Humsi,         Ann. § 74.351(l ) (requiring court to grant motion
342 S.W.3d at 698 (noting that Legislature would not           challenging adequacy of expert report if report does not
have imposed deadline for objections to report’s               *529 represent objective good-faith effort to comply with
sufficiency on nonparty who “would be outside the              statutory definition of expert report); Scoresby, 346
court’s jurisdiction and have no duty to participate in the    S.W.3d at 556 (requiring report to address all statutory
action”). As such, no “waiver” resulted from then-             elements and prohibiting omissions in report from being
nonparty Fung’s lack of objection in 2007 to the reports       supplied by inference); Jernigan, 195 S.W.3d at 93–94
with which he was never served, and the 2007 reports           (affirming trial court’s dismissal of suit because expert
should not be considered in combination with the 2009          reports omitted any allegation about how doctor breached
reports to meet the Fischers’ burden as to Fung.               standard of care and causation); Bowie Mem’l Hosp., 79
                                                               S.W.3d at 53 (concluding that report must contain all
Further, the Fischers served Fung with Varon’s report on       required information within its four corners). “[A]
September 24, 2009, and Johnson’s supplemental report          document qualifies as an expert report if it contains a
on September 25, 2009. Fung filed his objections to both       statement of opinion by an individual with expertise
on October 15, 2009, which was “not later than the 21st        indicating that the claim asserted by the plaintiff against
day after the date [Fung] was served” with the reports.        the defendant has merit.” Scoresby, 346 S.W.3d at 549.
See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Given
                                                               [27]
the facts in this record, Fung’s objections to the 2009            A defendant may be “implicated” in a report even if
reports were timely.                                           the defendant is not specifically named. See Ogletree, 262
                                                               S.W.3d at 317, 321 (concluding that report directed solely
                                                               to urologist’s care implicated defendant urologist
                                                               although it did not mention him by name); Bogar, 257
Sufficiency of Johnson’s and Varon’s 2009 reports as           S.W.3d at 367; see Tex. Civ. Prac. & Rem.Code Ann. §
to Fung                                                        74.351(a) (setting deadline for defendants “whose
Unlike its rulings as to the other appellants, the probate     conduct is implicated in a report” to file objections). In
court reached the substance of Fung’s objections and           such cases, the report may be deficient, but it would not
motion to dismiss, which asserted that the Fischers’s          be considered the equivalent of “no report.” Scoresby, 346
health care liability claim against him should be dismissed    S.W.3d at 556; Bogar, 257 S.W.3d at 367. On the other
because Varon’s and Johnson’s 2009 reports failed to           hand, a report that omits all of the statutorily required
comply with the statutory requirements of chapter 74. See      elements is not merely deficient, but rather amounts to no
id. § 74.351(b); Funderburk, 253 S.W.3d at 207–08;             report at all. Rivenes v. Holden, 257 S.W.3d 332, 338–39

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Fung v. Fischer, 365 S.W.3d 507 (2012)



(Tex.App.-Houston [14th Dist.] 2008, pet. denied);            2. Varon’s report
Garcia v. Marichalar, 185 S.W.3d 70, 71–72, 74                Fung contends that Varon’s report failed to comply with
(Tex.App.-San Antonio 2005, no pet.); see Ogletree, 262       chapter 74’s required discussions of breach of the
S.W.3d at 320 (citing dismissal of claim and ineligibility    standard of care and causation because its conclusions are
for extension to cure report in Marichalar as example of      not linked to facts in the report and it requires the court to
“seemingly harsh result[ ]” following from service of         infer Fung’s negligence. Fung argues specifically that
report that mentioned other defendant doctors but not         Varon’s report is conditional and speculative because: (1)
defendant Dr. Garcia).                                        it relies on an assumption that Fung was aware of Kathryn
                                                              Fischer’s MRI results and failed to act; (2) it fails to make
[28]
   Johnson’s supplemental report begins by identifying        a causal link between an allegedly breached standard of
Urukalo as the subject of his opinions:                       care and an injury by requiring an inference that if Fung
                                                              had access to Urukalo’s chart notes, then Kathryn
            The purpose of this supplemental                  Fischer’s outcome would have been different; and (3) it is
            report is to provide a fair summary               not supported by facts within the four corners of the
            of my opinions at this time as to the             report. The Fischers respond that Varon’s report “clearly
            health care provided by Ana                       identif[ies]” how Fung’s conduct fell below the standard
            Urukalo, DPM to Mrs. Kathryn                      of care, and that the “primary breach exists if Fung was
            Fischer in 2006 and 2007.                         aware of Mrs. Fischer[’s] MRI and did nothing with this
                                                              differential diagnosis.”
He proceeds to address only the standard of care owed by
“physicians that treat soft tissue masses in the lower        [29] [30]
                                                                     The causal connection in medical malpractice suits
extremities[,] including foot surgeons and podiatrists,       must be made “beyond the point of conjecture” and “must
such as Dr. Urukalo,” not the standard of care for a          show more than a possibility” to warrant submission of
referring primary care physician like Fung. His               the issue to a jury. Lenger v. Physician’s Gen. Hosp., 455
discussions about the “breaches of standards of care” and     S.W.2d 703, 706 (Tex.1970); see Bowie Mem’l Hosp., 79
“causation” are directed solely at Urukalo’s conduct.         S.W.3d at 53. Reports providing a “description of only a
Further, although Fung’s medical records are identified       possibility of causation do[ ] not constitute a good-faith
among the materials that Johnson reviewed in the              effort to comply with the statute.” Walgreen Co. v.
preparation of his report, Johnson expressed no criticism     Hieger, 243 S.W.3d 183, 186–87 (Tex.App.-Houston
of Fung whatsoever. In fact, the Fischers’ response below     [14th Dist.] 2007, pet. denied) (holding that expert report
argued that this report was intended to support their claim   stating claimant had symptoms “consistent with” known
against Urukalo.                                              side effects of medication was insufficient to demonstrate
                                                              causal link); see McMenemy v. Holden, No. 14–07–
Because the four corners of Johnson’s supplemental            00365–CV, 2007 WL 4842452, at *5–6, 2007 Tex.App.
report fail to provide any information about Fung’s           LEXIS 8830, at *15–16 (Tex.App.-Houston [14th Dist.]
standard of care as a primary care physician, any alleged     Nov. 1, 2007, pet. denied) (mem. op.) (concluding that
breach of the standard of care by Fung, and any causal        expert’s report expressing uncertainty about possibility of
link between an alleged breach by Fung and Kathryn            positive outcome for patient failed to make causal link
Fischer’s injury, the report does not implicate Fung. See     indicating plaintiffs’ claim had merit); Estate of Allen v.
Rivenes, 257 S.W.3d at 338–39 (holding that trial court       Polly Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 WL
abused its discretion by denying doctor’s motion to           497291, at *5–6, 2005 Tex.App. LEXIS 1691, at *16–17
dismiss because expert’s report opined only about             (Tex.App.-Houston [1st Dist.] Mar. 3, 2005, no pet.)
negligence of another doctor, hospital, and “hospital         (mem. op.) (holding that expert’s report failed to meet
staff” generally); Marichalar, 185 S.W.3d at 71–72, 74        statutory causation requirement by opining merely that
(holding that expert report that focused on acts by other     breach of standard of care “could have contributed” to
defendants and did not mention Dr. Garcia at all was “no      decline in claimant’s condition).
report” as to him and thus, *530 trial court erred in
                                                              [31]
granting claimant extension of time to cure that                  Further, a court may not fill in gaps in a report by
nonexistent report). We conclude that Johnson’s               drawing inferences or guessing what the expert meant or
supplemental report was not merely deficient in failing to    intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276,
comply with chapter 74 but was the equivalent of “no          279 (Tex.App.-Austin 2007, no pet.). Instead, the report
report” as to Fung.                                           must include the required information within its four
                                                              corners. Bowie Mem’l Hosp., 79 S.W.3d at 53.



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Fung v. Fischer, 365 S.W.3d 507 (2012)


[32]
     Reliable expert opinion should also be free from                • adequately inform the patient of “differential
internal inconsistencies. See Wilson v. Shanti, 333 S.W.3d           diagnoses known,” planned treatment, perceptions
909, 914 (Tex.App.-Houston [1st Dist.] 2011, pet. denied)            and expectations of the surgical procedure; and
(citing General Motors Corp. v. Iracheta, 161 S.W.3d
462, 470–72 (Tex.2005)). In Wilson, the court affirmed               • confirm and ensure that the planned procedure is
the exclusion of an expert’s medical causation testimony             “appropriate for the differential diagnosis,” that it is
because of the inconsistency between the expert’s initial            scheduled to be performed by appropriate and
report, the claimant’s deposition testimony, and the                 qualified personnel, and that it is scheduled to be
unexplained conclusion in the expert’s supplemental                  performed at an appropriate and qualified facility.
report attempting to reconcile the facts in his initial report
with the claimant’s testimony. Id. at 914–15. Because            All of these opinions hinge on the patient information
*531 of the unexplained inconsistency underlying the             “available” to Fung and the “differential diagnoses
expert’s conclusion, the court affirmed the trial court’s        known” to him.
finding that the expert failed to provide a reliable
foundation for his causation opinion. Id. at 915.                Yet Varon’s report affirmatively negates Fung’s having
                                                                 seen the information that is identified as key to his
[33]
     Varon’s report contains significant internal                liability. For instance, when Varon reviews the facts and
inconsistencies and is ambivalent about Fung’s liability.        explains the function of the electronic record system and
Specifically, although Varon’s criticisms of Fung are            the timing of the physicians’ entries, he states that Fung
wholly dependent on whether Fung had access to Kathryn           would not have seen Urukalo’s April 10th chart entry
Fischer’s MRI and differential diagnosis at a certain point      because she signed it almost ten hours after Fung signed
in her treatment, the factual background section of              his report:
Varon’s report conveys his uncertainty about whether
Fung ever saw a chart entry with the MRI result and                Dr. Fung completed the physical examination of Mrs.
whether Fung knew about the differential diagnosis of              Fischer and cleared Mrs. Fischer for surgery for a
cancer.                                                            ganglion cyst and signed his report at 1:20 pm on April
                                                                   16, 2007.... However, after Dr. Fung completed his
Varon’s report says that Fung’s negligence depends on              report and signed the history and physical form, later
Fung:                                                              that night at 11:12pm on April 16, Dr. Urukalo signed
                                                                   the chart document she supposedly dictated on April
       (1) having the MRI test available to him by about           10.
       1:00 p.m. on April 16, 2007 (when Varon states that
       Fung completed his examination and report);                 It is my understanding that the electronic record system
                                                                   used at ADC allowed additions and changes to patient
       (2) knowing of the MRI result by about 1:00 p.m. on         chart documents and all other health care providers are
       April 16, 2007; or                                          unable to view the chart document until after the
                                                                   document is signed. Then only the final document is
       (3) having Dr. Urukalo’s April 10th chart                   available, not prior to any additions or changes.
       information about the MRI and differential diagnosis
       by about 1:00 p.m. on April 16, 2007; and                 (Emphases added.) In fact, Varon is unable to state that
                                                                 anyone other than Urukalo *532 knew about her April
       (4) knowing that the differential diagnosis included      10th chart entry or the differential diagnosis of neoplasm
       neoplasm, tumor, or sarcoma by about 1:00 p.m. on         or sarcoma:
       April 16, 2007.
                                                                   Dr. Urukalo’s April 10, 2007 chart entry had cc: Dr.
Varon further opined that the standard of care requires            Fung and Dr. Pytkowski. It is unclear whether Dr. Fung
internal medicine physicians like Fung to:                         and Dr. Pytkowski received and/or reviewed the April
                                                                   10, 2007 medical document before the surgery on April
       • review information that is “pertinent” and                20, 2007; if so, when they received and/or reviewed the
       “available” about the patient’s current medical and         medical document and what was on the medical
       differential diagnoses, history, medications, physical      document when received and/or reviewed.... Both Dr.
       examination, test studies and results, and evaluate         Fung and Dr. Pytkowski testified they never saw or
       planned procedure[s];                                       received a copy of Dr. Urukalo’s April 10, 2007 chart
                                                                   document, were not aware of the MRI, were not aware
       • timely refer      the   patient   for   appropriate       of the MRI report of Dr. Chen, and not aware o[f] Dr.
       consultations;                                              Urukalo’s differential diagnosis of neoplasm or
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Fung v. Fischer, 365 S.W.3d 507 (2012)



  sarcoma before the surgery on Mrs. Fischer on April         not seen Urukalo’s April 10th chart entry, may be
  20, 2007.                                                   disregarded in favor of assumptions that are unsupported
                                                              by the report’s four corners—namely, that the MRI test
  ....                                                        was available to Fung, that Fung was aware of the MRI
                                                              test result, that Urukalo’s chart document was available to
  There are several handwritten records that state a          Fung, or that Fung was aware of the differential diagnosis
  preoperative and postoperative diagnosis of a ganglion      including a neoplasm, tumor, or sarcoma *533 before
  cyst that includes a possible neoplasm, but it is unclear   Kathryn Fischer’s surgery—to create a causal link
  when and by whom this information was written in the        between Fung’s conduct and Fischer’s injuries.
  medical chart.
                                                              Still other sections of Varon’s report discount these
Further inconsistencies are present in the report’s           conditional assumptions by reiterating that Fung lacked
discussion of “CAUSATION,” which states that between          access to, and knowledge of, Urukalo’s April 10th chart
“February 17, 2006 through December 21, 2006, ADC             note and the possible cancer diagnosis. Most notably, one
employees, agents, and servants, including Dr. Urukalo,       of Varon’s criticisms of Urukalo is that she “intentionally
knew or should have known that Mrs. Fischer’s soft tissue     concealed” the very information that Varon speculates
mass was probably not a ganglion cyst, and required           Fung’s liability would hinge on:
additional diagnostic testing.” However, that time frame
was after Fung’s referral to Urukalo, when Fung was not         Dr. Urukalo referred Mrs. Fischer to Dr. Fung for a
treating Kathryn Fischer.                                       preoperative examination and history and physical
                                                                preoperative to an excision of a ganglion cyst. Dr.
Ultimately,    in    the     “NEGLIGENCE,         GROSS         Urukalo intentionally concealed the MRI findings
NEGLIGENCE, MALICE AND FRAUD OF DR [.]                          [suggesting cancer] from Dr. Fung, who completed his
FUNG,” section of his report, Varon qualifies his specific      examination and report at approximately 1 pm on April
criticism of Fung by stating that Fung:                         16, 2007. However, Dr. Urukalo did not sign her chart
                                                                note until over 10 hours after Dr. Fung completed his
  was not negligent unless prior to completing his              examination and signed his reports. Dr. Urukalo knew
  examination and finalizing his report on April 16, 2007,      that her chart note of April 10, 2007, regarding the MRI
  the MRI test was available to Dr. Fung, Dr. Fung was          findings and Mrs. Fischer’s “differential diagnosis
  aware of Mrs. Fischer’s MRI test result, or if Dr.            includes ... sarcoma” was not accessible to Dr. Fung in
  Urukalo’s April 10, 2007 return visit chart document          Mrs. Fischer’s electronic medical chart until after she
  with information regarding the MRI result and her             signed the note at 11:12 pm on April 16, 2007.
  differential diagnosis was available to him, and if he
  unaware [sic] that Mrs. Fischer’s differential diagnosis      ....
  included a neoplasm, tumor, or sarcoma prior to the
  surgery on April 20, 2007.                                    [I]t is questionable as to when and who else was aware
                                                                of the preoperative diagnosis of a neoplasm and
  However, if prior to completing his examination and           sarcoma and when and how this critical information
  finalizing his report on April 16, 2007, the MRI test         was available to ADC employees involved in the April
  was available to Dr. Fung, Dr. Fung was aware of Mrs.         20, 2007 surgery, other than Dr. Urukalo.
  Fischer’s MRI test result, or if Dr. Urukalo’s April 10,
  2007 return visit chart document with information             ....
  regarding the MRI result and her differential diagnosis
  was available to him, or if he unaware [sic] that Mrs.        The medical records confirm that prior to the procedure
  Fischer’s differential diagnosis included a neoplasm,         on April 20, 2007, Mrs. Fischer had a differential
  tumor, or sarcoma prior to the surgery on April 20,           diagnosis of a malignant sarcoma, but it is unclear
  2007, then it is my opinion based on my education,            which health care providers other than Dr. Urukalo
  experience, training, review of the material listed, and      were aware of this critical and important information.
  in reasonable medical probability, that FREDERICK
  FUNG, M.D.’s negligence, gross negligence, malice,          (Emphases added.) Varon’s report underscores the
  and conspiracy to fraud [sic] was a proximate cause of      significance of Fung’s lack of access to the MRI findings
  Mrs. Fischer’s injuries and damages....                     and preoperative diagnosis by including the “pertinent
                                                              finding” that Urukalo “conceal[ed] from everyone
(Emphases added.) This section suggests that the              involved with the surgery that Mrs. Fischer’s mass could
preceding facts Varon identified in his report, including     be a sarcoma.”
the chronology supporting Fung’s testimony that he had
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Fung v. Fischer, 365 S.W.3d 507 (2012)



In summary, the information on which Varon would             notes were in a floor chart that was available for the
hinge Fung’s negligence is affirmatively negated by          defendant doctors to review:
Varon’s other opinions in this report that:
                                                                         [T]he alleged breach of the
    • Dr. Urukalo intentionally concealed the MRI                        standard of care ... w[as] contingent
    findings suggesting cancer from Dr. Fung; and                        on Dr. Varon’s assumption that the
                                                                         [emergency department] chart and
    • Dr. Urukalo’s chart note of April 10, 2007 with the                Dr. Skeete’s progress notes were in
    MRI findings and differential diagnosis including                    the floor chart.... By relying on
    sarcoma was not accessible to Dr. Fung.                              assumptions instead of facts, the
                                                                         report provides no basis for the trial
Further, as to Varon’s allegation that Fung was negligent
                                                                         court to conclude that the claims
if he knew about the differential diagnosis of cancer by
                                                                         against [the defendant doctors]
the time he completed the exam and his report on April
                                                                         have merit.
16, 2007, nothing in the four corners of Varon’s report
opines that Fung knew, by the time he completed the          Id. (citing Bowie Mem’l Hosp., 79 S.W.3d at 52; Murphy
exam and his report, of a differential diagnosis including   v. Mendoza, 234 S.W.3d 23, 28 (Tex.App.-El Paso 2007,
neoplasm, tumor, or sarcoma.                                 no pet.) (holding that expert’s opinion as to breach of the
                                                             standard of care was speculative and conclusory as it was
Varon’s opinions here resemble those from discredited        unsupported by facts in report’s four corners and relied on
reports that failed to show more than a possibility of a     assumption); Hutchinson v. Montemayor, 144 S.W.3d
causal link between the defendant’s conduct and the          614, 618 (Tex.App.-San Antonio 2004, no pet.)
claimant’s injury. See Bowie Mem’l Hosp., 79 S.W.3d at       (concluding that report failed to show more than
53; Hieger, 243 S.W.3d at 187; Christus Spohn Health         possibility and speculation as to causation)).
Sys. v. Trammell, 13–09–00199–CV, 2009 WL 2462899,
at *2–3, 2009 Tex.App. LEXIS 6329, at *7–8 (Tex.App.-        We likewise conclude here that Varon’s opinions
Corpus Christi Aug. 13, 2009, no pet.) (mem. op.)            regarding Fung’s negligence, breach of the standard of
(concluding that expert’s causation opinion “merely          care, and causation—which depend on unsupported
suggest[ing] that if an assumption can be made, then ‘a      assumptions as to what Fung knew and when he knew
causal link can be made’ ” was “wholly inadequate” and       it—are conditional and speculative at best, and are
“nothing more than conjecture”); see also *534 Alfieri v.    affirmatively contradicted and negated by Varon’s own
United States, No. SA–08–CV–277–XR, 2009 WL                  opinions at worst. As such, they did not provide a basis
4059164, at *3–4, 2009 U.S. Dist. LEXIS 108470, at *9–       for the court to conclude that the Fischers’ health care
11 & n. 4 (W.D.Tex. Nov. 20, 2009) (order) (ruling that      liability claim against Fung has merit. Cf. Bowie Mem’l
expert’s conclusion that “defendant would be further         Hosp., 79 S.W.3d at 52.
negligent if in fact” certain conditions were met was
speculative) (emphases added). Because Varon’s report        Under the facts and circumstances of this case, neither
acknowledges that Fung would not have had information        Varon’s report nor Johnson’s supplemental report
that Urukalo “intentionally concealed” from him, and         constituted a “good faith effort” at compliance with
because nothing in this report indicates Fung’s awareness    chapter 74. We therefore sustain Fung’s first issue. We
of a differential diagnosis including neoplasm, tumor, or    must now determine whether this case should be
sarcoma by 1:00 p.m. on April 16, 2007, any opinion by       remanded for the probate court to consider granting the
Varon that Fung did have such information turns wholly       statutory thirty-day extension of time to cure the
on assumption that is unsupported, if not disputed, by the   deficiencies in these reports. See Tex. Civ. Prac. &
facts in Varon’s report.                                     Rem.Code Ann. § 74.351(c).
The San Antonio Court of Appeals addressed a similar
problem with assumptions in one of Varon’s previous
reports. See Cooper v. Arizpe, No. 04–07–00734, 2008         Eligibility for extension of time to cure
WL 940490, at *3–4, 2008 Tex.App. LEXIS 2506, at *9–         In his second issue, Fung argues that, despite two years of
10 (Tex.App.-San Antonio Apr. 9, 2008, pet. denied)          discovery and numerous depositions, the deficiencies in
(mem. op.). In an opinion that issued before the Fischers    the expert reports that the Fischers served in support of
served Varon’s report on Fung, the court concluded that      their health care liability claim against him were
Varon’s report was deficient because of its assumptions      incurable—Johnson’s report fails to implicate Fung
that an emergency department chart and a certain doctor’s    whatsoever, and Varon’s report lacks a factual basis

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Fung v. Fischer, 365 S.W.3d 507 (2012)



within its four corners, to the extent that it expresses any     have been eligible for extension to cure because it did not
opinions regarding Fung. Because neither could be cured          demonstrate on its face that it was incurable). Thus, courts
without an *535 entirely new report, Fung contends that          should grant the statutory extension of time when a
they are ineligible for the statutory thirty-day extension of    deficient expert report can be cured readily and deny the
time to cure their deficiencies. The Fischers argue that         extension when it cannot. Samlowski, 332 S.W.3d at 411.
remand is appropriate because the reports that they served       The court in Scoresby determined that the expert’s report
are not the equivalent of “no report,” and if Varon’s            was deficient in at least one respect because it omitted the
report lacks a link between his stated conclusions and           standard of care and contained only an implication that
Fung’s conduct, addressing that deficiency would be “an          the standard was inconsistent with the surgeons’ conduct.
easy fix.”                                                       Scoresby, 346 S.W.3d at 557. However, the court
                                                                 concluded that the expert’s report was eligible for the
[34] [35]
        Service of a report that is deficient, but not so        statutory extension of time to cure its deficiency because
deficient as to constitute “no report,” need not result in       the expert claimed expertise as a neurologist, described
dismissal of the underlying health care liability claim. See     plaintiff’s brain injury, attributed the effects of such
Samlowski, 332 S.W.3d at 411; Austin Heart, 228 S.W.3d           injury to the defendant surgeons’ breach of the standards
at 284–85 & n. 8. Trial courts are afforded discretion           of care, and opined unequivocally that the plaintiff’s
under chapter 74 to grant one thirty-day extension so that       claim had merit. Id. (“[T]here [wa]s no question that in
claimants may, if possible, cure deficient reports.              [the expert’s] opinion, Santillan’s claim against the
Samlowski, 332 S.W.3d at 411 (citing Tex. Civ. Prac. &           Physicians has merit.”).
Rem.Code Ann. § 74.351(c); Ogletree, 262 S.W.3d at
320). When we find deficient a report that the trial court       *536 [37] The report at issue in Scoresby, which had
considered adequate, we may remand the case for the trial        readily curable deficiencies and unquestionably opined
court’s consideration of whether to grant the thirty-day         that the claim against the physicians had merit, is unlike
extension. Leland v. Brandal, 257 S.W.3d 204, 207                Johnson’s and Varon’s reports as to Fung. Applying the
(Tex.2008); see Austin Heart, 228 S.W.3d at 284–85 & n.          Scoresby three-factor test to Johnson’s supplemental
8.                                                               report shows that only the first factor is met: the report
                                                                 was timely served on Fung. However, the report does not
Recently, a majority of the Texas Supreme Court                  opine that the Fischers’ health care liability claim against
expressed a preference for trial courts to err on the side of    Fung has merit and the report does not implicate Fung. Cf.
granting extensions to cure deficient reports, noting that       id. It omits any discussion about the standard of care for a
“[t]he right answer in many cases will be for the trial          referring primary care physician like Fung, its only
court to grant one thirty-day extension upon timely              references to “breaches of standards of care” and
request and be done with it.” Samlowski, 332 S.W.3d at           “causation” are directed solely at Urukalo’s conduct, and
411–12. The court concluded that a deficient report is           it simply fails to assert that Fung did anything wrong. See
eligible for the thirty-day extension if it: (1) is served by    Rivenes, 257 S.W.3d at 338–39 (reversing trial court’s
the statutory deadline; (2) contains the opinion of an           denial of doctor’s motion to dismiss because expert’s
individual with expertise that the claim has merit; and (3)      report opined only about negligence of another doctor,
implicates the defendant’s conduct. Scoresby, 346 S.W.3d         hospital, and “hospital staff” generally); Marichalar, 185
at 557. The court acknowledged that “this is a minimal           S.W.3d at 71–72, 74 (concluding that expert report was
standard, but we think it is necessary if multiple               ineligible for extension of time to cure because it was
interlocutory appeals are to be avoided, and appropriate to      directed to acts of other defendant doctors and did not
give a claimant the opportunity provided by the Act’s            mention Dr. Garcia at all, making it “no report” as to
thirty-day extension to show that a claim has merit.” Id.        him); see also Scoresby, 346 S.W.3d at 558. Johnson’s
                                                                 supplemental report was not merely deficient but was
[36]
    An inadequate report does not indicate a frivolous           effectively “no report” as to Fung.
claim if the report’s deficiencies are readily curable. Id. at
                                                                 [38]
556; see id. at 558–59 (Willett, J., concurring)                     Likewise, Varon’s report was timely served but not
(concluding that report “must actually allege that               much else. Instead of opining that the Fischers’ health
someone committed malpractice,” and report that “never           care liability claim against Fung has merit and implicating
asserts that anyone did anything wrong ” cannot receive          Fung’s conduct, the report opines that Fung’s knowledge
extension because bar for report is low “but not                 of critical information on which his liability hinges is
subterranean”); see Samlowski, 332 S.W.3d at 416                 “questionable,” or it negates Fung’s liability altogether
(Guzman, J., concurring) (reasoning that report from             based on information that he could not have known
qualified health care professional, which explained belief       because, according to this same report, it was
that physician’s actions caused claimant’s injuries, should      “intentionally concealed” from him. Cf. Scoresby, 346

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Fung v. Fischer, 365 S.W.3d 507 (2012)



S.W.3d at 557. Any breach of the standard of care
discussed in Varon’s report is entirely dependent on the
pertinent information “available” to Fung and the
“differential diagnoses known” to him; causation is                                                CONCLUSION
similarly addressed with nothing but speculation. Because
Varon’s report opines that Fung’s liability is either                      Having sustained Urukalo’s, Minicucci’s, and ADC’s first
questionable or impossible, it does not actually allege any                issues, we reverse the probate court’s three orders
malpractice and is “no report” as to Fung. Cf. id. at 557,                 overruling these appellants’ objections to the expert
559.                                                                       reports as untimely, vacate the three orders denying these
                                                                           appellants’ motions to dismiss, and remand this case for
We conclude that as to Fung, neither Varon’s report nor                    the court’s consideration of the merits of Urukalo’s,
Johnson’s supplemental report meets Scoresby’s minimal                     Minicucci’s, and ADC’s objections and motions to
standard because their deficiencies could only be cured                    dismiss.
with entirely new reports based on changed facts. They
are thus ineligible for the statutory extension, and the                   Further, having sustained Fung’s first and second issues,
probate court abused its discretion in denying Fung’s                      we reverse the probate court’s order overruling Fung’s
motion to dismiss. Accordingly, Fung’s second issue is                     objections *537 to the expert reports, reverse the order
sustained. We reverse the probate court’s order overruling                 denying Fung’s motion to dismiss, render judgment
Fung’s objections to the expert reports and denying                        dismissing the Fischers’ health care liability claim against
Fung’s motion to dismiss, render judgment granting                         Fung with prejudice, and remand this case to the probate
Fung’s motion to dismiss the Fischers’ health care                         court for a determination of Fung’s reasonable attorney’s
liability claim against him with prejudice, and remand this                fees and costs under section 74.351(b)(1) of the civil
case for the probate court’s determination of reasonable                   practice and remedies code.
attorney’s fees and costs. See Tex. Civ. Prac. &
Rem.Code Ann. § 74.351(b)(1).


Footnotes
1      Bachmann’s and Johnson’s reports disclaim offering opinions about any defendant besides Urukalo by stating: “The following
       is a fair summary of my opinions as of the date of this report regarding the applicable standards of care and how the manner in
       which the care rendered only by Ana Urukalo, D.P.M. was deficient and failed to meet these applicable standards.” (Emphasis
       added.)
2      The motion to transfer the suit to probate court is not in the record, but Urukalo’s brief explains that “Myron Fischer instituted
       guardianship proceedings for the person and estate of Kathryn Fischer on December 3, 2009, due to her ‘partial incapacity’
       based on a ‘physical limitation.’ ”
3      This Court allowed post-submission briefing on the Fischers’ jurisdictional issue. Matters in the Fischers’ post-submission brief
       unrelated to the jurisdictional issue will be considered based upon their earlier briefing and argument.
4      The exception in section 51.014(a)(9) prohibiting appeal from an order granting a 30–day extension to cure a deficient report
       under section 74.351 is inapplicable here because the court’s orders did not grant any extension. See Tex. Civ. Prac. &
       Rem.Code Ann. §§ 51.014(a)(9) (West Supp. 2011), 74.351(c) (West 2011).
5      Health care providers and podiatrists are within the scope of chapter 74. See id. All of the Fischers’ petitions and all of
       Urukalo’s answers identified Urukalo as a “D.P.M.” (doctor of podiatric medicine). See 22 Tex. Admin. Code § 373.3 (2011)
       (Tex. State Bd. of Podiatric Med. Exam’rs, Practitioner Identification). Also, the Fischers’ response to the motions to dismiss
       and objections refers to Urukalo as a “podiatrist” and to appellants collectively as “defendant health care providers.”
6      The Fischers assert, for the first time on appeal and contrary to their response below, that Urukalo’s objections were waived.
       Because the Fischers’ response did not raise the waiver issue (instead, they acknowledged that Urukalo’s objections to the 2009
       reports were timely), it was not before the probate court when it ruled, and we may not consider it on appeal. See Hansen v.
       Starr, 123 S.W.3d 13, 18 (Tex.App.-Dallas 2003, pet. denied) (rejecting waiver issue because claimants failed to raise it in their
       responses to doctors’ motions to dismiss); see also San Jacinto Methodist Hosp. v. Carr, No. 01–07–00655, 2008 WL 2186473,
       at *3, 2008 Tex.App. LEXIS 3850, at *8 (Tex.App.-Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.) (holding that
       hospital could object to expert reports on appeal because claimants failed to raise waiver issue in response to hospital’s motion
       to dismiss).

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Fung v. Fischer, 365 S.W.3d 507 (2012)



7     As previously noted, the 2007 reports address only Urukalo’s negligence, and the original ADC defendant does not seek
      dismissal of the health care liability claim asserting its vicarious liability for Urukalo’s alleged negligent conduct as pled in the
      2007 original petition.
8     Because the probate court’s order explicitly stated that the ADC defendants’ objections were overruled as untimely (and thus,
      were waived), we do not reach the Fischers’ additional argument that the original ADC defendant waived its objections to the
      2007 reports by participating in discovery. Cf. Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex.2003) (rejecting argument that
      doctor’s “attempt[ ] to learn more about the case” through discovery demonstrated his intent to waive his right to move for
      dismissal).
9     The Eleventh Court of Appeals noted that five of our sister courts evaluate direct-liability claims and vicarious-liability claims
      as separate health care liability claims, but the First Court of Appeals has instead reasoned that the two are merely alternative
      legal theories for imposing liability in the same health care liability claim and that “if at least one liability theory within a cause
      of action is shown by the expert report, then the claimant may proceed with the entire cause of action against the defendant,
      including particular liability theories that were not originally part of the expert report.” Hendrick Med. Ctr. v. Miller, No. 11–
      11–00141–CV, 2012 WL 314062, at *3–4, 2012 Tex.App. LEXIS 683, at *9–11 (Tex.App.-Eastland Jan. 26, 2012, no pet.)
      (mem. op.) (collecting cases and declining to follow Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 692 (Tex.App.-Houston [1st
      Dist.] May 19, 2011, pet. filed) (op. on reh’g)). To the extent Potts takes the position that an expert report which solely
      addresses a vicarious-liability claim against a health care provider suffices to support a direct-liability claim against that
      provider arising, as here, from a different group of operative facts, we decline to follow it.
10    The Fischers filed several amended petitions in 2009, but their amended pleadings against the original ADC defendant, based on
      the same underlying facts, did not restart their 120–day deadline for serving expert reports. See Maxwell v. Seifert, 237 S.W.3d
      423, 426 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); see also Davis v. Baker, No. 03–10–00324–CV, 2010 WL
      5463864, at *2–3, 2010 Tex.App. LEXIS 10317, at *5–7 (Tex.App.-Austin Dec. 22, 2010, no pet.) (mem. op.).
11    The Fischers’ response to the defendants’ objections and motions contains a chart reflecting the Fischers’ mistaken belief that
      the deadline for defendants’ objections to the reports ran from the date that the defendants were served with the petition. The
      Fischers miscalculated the deadline for the defendants’ objections—and erroneously argued that the objections were waived—
      by adding twenty-one days to the date that the defendants were served with the petition instead of the date that the defendants
      were served with the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added).
12    The Fischers appear to have abandoned this argument, which is unaddressed in their brief. See Tex.R.App. P. 38.2(a)(2).

13    The Fischers served only the original pair of defendants, ADC and Urukalo, with the first set of expert reports.




End of Document                                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       18
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)




                                                              CHCA Bayshore L.P. d/b/a Bayshore Medical Center
                                                              (Bayshore) and Ira H. Rapp, M.D. The trial court
                  189 S.W.3d 855
              Court of Appeals of Texas,                      dismissed Gray’s suit with prejudice after concluding that
                Houston (1st Dist.).                          the expert report she filed failed to satisfy the
                                                              requirements set forth in section 74.351 of the Texas Civil
            Sylvia GRAY, Appellant,                           Practice and Remedies Code. See TEX. CIV. PRAC. &
                       v.                                     REM.CODE ANN. § 74.351 (Vernon Supp.2005). In her
  CHCA BAYSHORE L.P. d/b/a Bayshore Medical                   sole issue on appeal, Gray argues that the trial court erred
    Center and Ira H. Rapp, M.D., Appellees.                  in finding that her expert report did not comply with the
                                                              statute.
       No. 01–04–00918–CV. | Jan. 26, 2006.
                                                              We affirm.

Synopsis
Background: Patient brought medical malpractice action
against hospital and doctor, seeking to recover damages
resulting from the injury to her knee during surgical                             BACKGROUND
treatment of chronic sinusitis and nasal septal deformity.
The 281st District Court, Harris County, David Jorge          In 2001, Gray was admitted to Bayshore for surgical
Bernal, J., dismissed patient’s suit, and patient appealed.   treatment of chronic sinusitis and nasal septal deformity.
                                                              For the surgery, Gray was administered a general
                                                              anesthetic by Dr. Rapp. Upon regaining consciousness
                                                              after the operation, Gray became aware of severe pain in
[Holding:] The Court of Appeals, Evelyn V. Keyes, J.,         her left knee. Subsequent examination by an orthopedist
held that expert report did not satisfy statutory             and a neurologist revealed a dislocation of the knee’s
requirements of medical liability statute, and thus,          patella. Gray, age 39, had no prior history of knee
dismissal of patient’s medical malpractice action was         injuries.
warranted.
                                                              In November 2003, Gray brought suit against Bayshore,
                                                              Dr. Rapp, and Phillip A. Matorin, M.D., seeking to
Affirmed.                                                     recover damages resulting from the injury to her knee. 1
                                                              Gray’s suit alleged that the injury was caused by the
                                                              flexing of her left leg during surgery and that the injury
Attorneys and Law Firms                                       could have *857 been prevented had Dr. Rapp and the
                                                              Bayshore’s nursing staff properly monitored Gray’s
*856 Michael D. Farmer, Plummer & Farmer, Houston,
                                                              extremities during the operation. In March 2004, Gray
TX, for Appellant.
                                                              filed the report of her medical expert, Dr. Richard F.
                                                              Toussaint, M.D., as required by section 74.351 of the
Larry D. Thompson and Robert G. Smith, Lorance &
Thompson, P.C., Griffin Vincent and Solace Kirkland           Texas Civil Practice and Remedies Code. See id. Both
Southwick, Andrews Kurth LLP, Houston, TX, for                Bayshore and Dr. Rapp moved to dismiss Gray’s suit,
Appellees.                                                    arguing that Dr. Toussaint’s expert report failed to
                                                              comply with the requirements of section 74.351. See id.
Panel consists of Justices NUCHIA, KEYES, and                 The trial court then granted Gray a 30–day extension to
HANKS.                                                        cure any deficiencies in her expert report. See id. §
                                                              74.351(c).

                                                              Gray filed her amended expert report in June 2004. The
                                                              report, again by Dr. Toussaint, reads in pertinent part:

                       OPINION                                  Ms. Gray was administered a general anesthetic for the
                                                                sinus surgery by Ira H. Rapp, M.D. During the surgery,
EVELYN V. KEYES, Justice.                                       Ms. Gray’s knees and arms had become flexed, and
                                                                when she awoke from the anesthetic, she noted severe
This appeal arises from a medical malpractice claim             pain upon attempting to move from a bedpan. She was
brought by appellant, Sylvia Gray, against appellees,
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



  noted to have a negative history of knee injury. Ms.           negligence is the failure to use ordinary care, *858
  Gray was seen by John H. Ownby, M.D., neurologist,             failure to do what a physician, or operating room nurse,
  and Ronald B. Heisey, M.D., orthopedist, who upon              of ordinary prudence would have done under the same
  subsequent workup of Ms. Gray’s knee pain                      or similar circumstances. I also understand that
  determined that her left patella had become dislocated.        proximate cause is a cause which in a natural and
                                                                 continuous sequence produces an event, and without
  Based on the forgoing and my education, training,              which, such an event would not have occurred. I also
  experience, and reasonable medical probability, it is my       understand that in order to be a proximate cause, an act
  opinion that Dr. Ira H. Rapp, M.D., Dr. Phillip A.             or omission complained of must be such that a person
  Matorin, M.D., and the nursing staff of Bayshore               using ordinary care would have foreseen that the event,
  Medical Center breached the standard of care for               or some similar event, might reasonably result
  failing to properly monitor, treat, and prevent the            therefrom.
  resultant left knee injury and dislocation of the left
  patella.                                                       Based on these definitions, and on a reasonable degree
                                                                 of medical probability, Dr. Ira H. Rapp, M.D., Dr.
  Based on the Texas definitions, Dr. Ira H. Rapp, M.D.,         Phillip A. Matorin, M.D., and the Bayshore Medical
  Dr. Phillip A. Matorin, M.D., and the Bayshore                 Center perioperative nursing staff failed to meet the
  Medical Center perioperative nursing staff were                standard of care when they neglected to monitor and
  negligent by failing to properly monitor, treat, and           detect a malpositioned left knee resulting in a
  prevent Ms. Gray’s left patella dislocation. The               dislocated left patella on December 5, 2001. The failure
  negligence was in the following:                               to monitor and detect the malpositioned left knee
                                                                 resulted in a dislocated left patella, severe pain and
  1. Dr. Ira H. Rapp, M.D. failed to monitor the                 suffering, and subsequent medical treatment.
  positioning of Ms. Gray’s left knee to prevent the
  subsequent dislocation of the patella while under a          After receiving Gray’s amended expert report, Bayshore
  general anesthetic. The standard of care in this             and Dr. Rapp again moved to dismiss the suit, arguing
  circumstance would be for a physician to monitor the         that the report still did not comply with section 74.351.
  positioning of the patient’s extremities to prevent injury   After a hearing, appellees’ supplemental motions to
  during surgery and post operatively.                         dismiss were granted, and Gray timely appealed.
  2. The Bayshore Medical Center perioperative nursing
  staff failed to monitor the positioning of Ms. Gray’s left
  knee to prevent the subsequent dislocation of the
  patella while in the operating room. The standard of                               DISCUSSION
  care in this circumstance would be for the perioperative
  nursing staff to monitor the positioning of the patient’s    In her sole issue on appeal, Gray contends that the trial
  extremities to prevent injury during surgery and post        court erred in its determination that Dr. Toussaint’s report
  operatively.                                                 did not comply with section 74.351 of the Civil Practice
                                                               and Remedies Code. Specifically, she argues that Dr.
  In the above instance, had Dr. Ira H. Rapp, M.D., Dr.        Toussaint’s report constituted an objective good faith
  Phillip A. Matorin, M.D., and the Bayshore Medical           effort to comply with the requirements of section 74.351,
  Center perioperative nursing staff monitored and             and thus contends that the trial court acted improperly in
  detected the flexing of Ms. Gray’s arms and legs during      dismissing her suit. See id. § 74.351(l ) (stating that a
  general anesthesia in a timely fashion, then in              court shall grant a challenge to an expert report “only if it
  reasonable medical probability, the pain and suffering       appears to the court, after hearing, that the report does not
  experienced by Ms. Gray from the dislocated left             represent an objective good faith effort” at compliance).
  patella would not have occurred along with the
  resultant necessary treatments. The failure to monitor,
  detect, diagnose, and timely treat a malpositioned left
  knee during a general anesthetic was negligence and          Standard of Review
                                                               [1] [2] [3] [4]
  proximately caused the dislocated left patella and                           We review all section 74.351 rulings under an
  subsequent pain and suffering experienced by Ms. Gray        abuse of discretion standard. Am. Transitional Care Ctrs.
  on December 5, 2001.                                         v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court
                                                               abuses its discretion if it acts in an arbitrary or
  This opinion is based on the available medical records       unreasonable manner without reference to guiding rules
  that you have provided for my review. I understand that      or principles. See Garcia v. Martinez, 988 S.W.2d 219,
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



222 (Tex.1999). When reviewing matters committed to            Dr. Toussaint’s Report
the trial court’s discretion, we may not substitute our own    Dr. Toussaint’s amended report essentially states that, as
judgment for that of the trial court. Walker v. Packer, 827    to both Bayshore and Dr. Rapp: (1) the applicable
S.W.2d 833, 839 (Tex.1992). A trial court does not abuse       standard of care required monitoring the positioning of
its discretion merely because it decides a discretionary       Gray’s extremities; (2) appellees failed to monitor the
matter differently than an appellate court would in a          positioning of Gray’s left knee; and (3) had appellees
similar circumstance. See Downer v. Aquamarine                 monitored the knee’s position, Gray, within reasonable
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).            medical probability, would not have suffered a dislocated
                                                               patella. Although the report, at first glance, thus appears
                                                               to articulate the three statutorily required elements of an
Section 74.351 of the Texas Civil Practice and Remedies        expert report, we are compelled, under an abuse of
Code                                                           discretion standard, to conclude that the trial court did not
                                                               act unreasonably in granting appellees’ motions to
Pursuant to section 74.351, medical malpractice plaintiffs     dismiss.
must provide each defendant physician and health care
provider with an expert report or voluntarily nonsuit the      [9] [10]
                                                                      The supreme court held in Palacios that medical
action. See TEX. CIV. PRAC. & REM.CODE ANN. §                  malpractice plaintiffs must provide an expert report
74.351. If a claimant timely furnishes an expert report, a     detailing standard of care, breach, and causation as to
defendant may file a motion challenging the report’s           each defendant. Id. Here, the report states, without
adequacy. See id. at § 74.351(a). The trial court shall        explanation, that a single standard of care applied to both
grant the motion only if it appears, after hearing, that the   Bayshore and Dr. Rapp. While it is possible that an
report does not represent a good faith effort to comply        identical standard of care regarding limb monitoring
with the statutory definition of an expert report. See id. §   during and after surgery attaches to an anesthesiologist
74.351(l ). The statute defines an expert report as a          (Dr. Rapp) and a perioperative nursing staff (Bayshore),
written report by an expert that provides, as to each          such generic statements, without more, can reasonably be
defendant, a fair summary of the *859 expert’s opinions        deemed conclusory. Conclusory statements regarding
as of the date of the report regarding: (1) applicable         standard of care, breach, or causation, do not constitute a
standards of care; (2) the manner in which the care            good faith effort to comply with section 74.351 in that
provided failed to meet the standards; and (3) the causal      they fail to adequately inform each defendant of the
relationship between that failure and the injury, harm, or     specific conduct called into question by the plaintiff’s
damages claimed. See id. § 74.351(r)(6); Palacios, 46          claims. See id.
S.W.3d at 878–79.
                                                               [11]
                                                                   Similar weaknesses undermine Dr. Toussaint’s report
[5] [6] [7] [8]
             Although the report need not marshal all the      in regard to how appellees breached the applicable
plaintiff’s proof, it must include the expert’s opinions on    standard of care. Whether a defendant breached the
the three statutory elements—standard of care, breach,         standard of care due a patient cannot be determined
and causation. See Palacios, 46 S.W.3d at 878–79. In           without “specific information about what the defendant
detailing these elements, the report must provide enough       should have done differently.” See id. at 880. Here, Dr.
information to fulfill two purposes if it is to constitute a   Toussaint’s report contains only a general statement that
good faith effort. First, the report must inform the           appellees failed to monitor Gray’s left knee properly. The
defendant of the specific conduct the plaintiff has called     report provides no specific information concerning what
into question. Id. at 879. Second, the report must provide     actions appellees should have taken in the event they
a basis for the trial court to conclude that the claims have   observed Gray’s knee flexing. Indeed, a literal reading of
merit. Id. A report that merely states the expert’s            the report’s most direct statements concerning breach
conclusions as to the standard of care, breach, and            leads to the conclusion that simply monitoring Gray’s
causation does not fulfill these two purposes. Id. The         extremities, *860 and taking no corrective action, would
expert must explain the basis for his statements and must      have prevented her injury. In view of such general and
link his conclusions to the facts. Bowie Mem’l Hosp. v.        conclusory statements concerning breach, we cannot
Wright, 79 S.W.3d 48, 52 (Tex.2002). Furthermore, in           conclude that the trial court abused its discretion in
assessing the report’s sufficiency, the trial court may not    dismissing Gray’s suit.2 See id. at 879.
draw any inferences, and must instead rely exclusively on
the information contained within the report’s four corners.    Conclusory statements also plague the report’s efforts to
See Palacios, 46 S.W.3d at 879.                                satisfy the statutory element of causation. Specifically,
                                                               Dr. Toussaint’s report does not state with any specificity
                                                               how appellees departure from the stated standard of care

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 3
Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)



caused Gray’s knee injury. Instead, the report provides                    person in that position, causing damage that would not
only the conclusory statement that the failure to monitor                  have happened had ordinary professional care been used.
caused Gray’s injury. By not fleshing out how appellees’                   Considering that the trial court is limited to the four
failure to monitor Gray’s extremities caused her injury,                   corners of the report in making its determination, one
the report does not convincingly tie the alleged departure                 could reasonably conclude that the conclusory language
from the standard of care to specific facts of the case.                   in the report, together with the inconsistency as to
Such a failure has been found to be a sufficient reason for                appellant’s complaint, convinced the trial court that the
concluding that an expert report is statutorily inadequate.                report failed to satisfactorily inform each appellee of the
See Bowie Mem’l Hosp., 79 S.W.3d at 53.                                    specific conduct being challenged. Palacios, 46 S.W.3d at
                                                                           878–79.
We further note that the report appears to be inconsistent
with respect to the relationship among the standard of                     In view of the conclusory, and at times inconsistent,
care, breach, and the cause of Gray’s injury. Specific                     statements within Dr. Toussaint’s expert report, we
language in the report indicates that the applicable                       cannot conclude that the trial court abused its discretion in
standard of care breached by the defendants was                            granting appellees’ motion for dismissal. We thus
“monitor[ing] the positioning of the patient’s                             overrule Gray’s sole issue on appeal.
extremities.” The report then appears to depart from this
limited standard of care and breach, stating, “The failure
to monitor, detect, diagnose, and timely treat a
malpositioned left knee during general anesthetic was
negligence, and proximately caused the dislocated left                                            CONCLUSION
patella.” (Emphasis added.) The report thus fails to put
the appellees on notice as to who had what responsibility                  We affirm the trial court’s order of dismissal.
and how that person or persons departed from the
standard of ordinary medical care of a patient under
anesthesia in failing to do some specific act required by a

Footnotes
1      Dr. Matorin was the admitting physician. He was non-suited in July 2004.

2      We note that in Strom v. Mem’l Hermann Hospt. Sys., this court upheld a trial court’s decision to dismiss a remarkably similar
       suit due to the filing of an inadequate expert report. 110 S.W.3d 216 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In Strom,
       the plaintiff similarly alleged that she sustained an injury to her left knee due to improper positioning of her extremities during
       surgery. Id. at 219. The expert report Strom provided contained considerably more detail than Dr. Toussaint’s report, referring
       specifically to the need to properly pad, strap, and place a patient’s extremities during surgery. Id. at 224.




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)




                   232 S.W.3d 170
               Court of Appeals of Texas,
                 Houston (1st Dist.).
                                                                                         OPINION
      HARRIS COUNTY HOSPITAL DISTRICT,
                       Appellant,                                TERRY JENNINGS, Justice.
                            v.
  Autrey GARRETT, Individually and as Next Friend                In this interlocutory appeal,1 appellant, Harris County
  of J.G., D.G., and S.G., Minor Children, Appellees.            Hospital District (“HCHD”), challenges the trial court’s
                                                                 order denying its motion to dismiss the health care
        No. 01–06–00782–CV. | May 3, 2007.                       liability claim2 of appellees, *173 Autrey Garrett,
                                                                 individually and as next of friend of J.G., D.G., and S.G.,
                                                                 her minor children.
Synopsis
Background: Patient brought malpractice action against
                                                                 We affirm the trial court’s order.
physicians and hospital for failure to timely disclose
breast cancer biopsy results. The 152nd District Court,
Harris County, Kenneth P. Wise, J., denied hospital’s
motion to dismiss based on patient’s expert report, and
hospital filed interlocutory appeal.                                       Factual and Procedural Background

                                                                 In their original petition, the Garretts allege that HCHD
                                                                 and others3 were negligent in failing to notify her of her
Holdings: The Court of Appeals, Terry Jennings, J., held         diagnosis of ductal carcinoma of the breast until July
that:                                                            2005, even though pathology findings establishing this
[1]                                                              diagnosis were made on December 1, 2003, resulting in a
   an expert report did not have to set forth the expert’s       significant delay of Garrett’s treatment and the
curriculum vitae as a separate document in order to              advancement of her cancer.
comply with expert report statute;
[2]                                                              In October 2003, Garrett sought obstetrics and
   physician who submitted report was qualified to serve         gynecology care at Lyndon B. Johnson Hospital (“LBJ”),
as an expert on issue of whether hospital departed from          and Dr. John Riggs “assumed care of [Garrett].” Riggs
the standards of care in failing to disclose results of breast   “discovered a breast mass” in Garrett’s left breast and
cancer biopsy;                                                   ordered a breast ultrasound, which was performed on
[3]                                                              October 6, 2003 and revealed that the mass was “possibly
   report satisfied requirements of expert report statute on     suspicious for malignancy.” Garrett followed up on the
identifying a standard of care; and                              results with the Breast Clinic at LBJ, which scheduled a
[4]                                                              biopsy. The biopsy was performed on November 25,
   report satisfied causation requirements of expert report      2003, and Garrett was “given a follow up appointment
statute.                                                         with the Breast Clinic for December 10, 2003 to discuss
                                                                 the results.” Although a “pathology report was ready” on
                                                                 December 1, 2003, Garrett was not informed of the results
Affirmed.
                                                                 of the biopsy until July 2005.

Attorneys and Law Firms                                          Garrett “transferred her care to Dr. Enrique Ortega,” and,
                                                                 during her first visit with him on November 13, 2003,
*172 John Arlen Pruitt, Assistant County Attorney,               Ortega also “noted a left breast mass.” At a January 15,
Houston, TX, for Appellant.                                      2004 appointment, Dr. Ortega told Garrett that he “would
                                                                 obtain her biopsy report from LBJ” because Garrett had
Chad Bassett Matthews, League City, TX, for Appellees.           informed him that LBJ “was charging $90 for same.”
                                                                 Although Ortega delivered Garrett’s baby on April 23,
Panel consists of Chief Justice RADACK and Justices              2004, and Garrett returned to Ortega for two more
JENNINGS and BLAND.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



appointments, he never informed Garrett of the biopsy          reports of Dr. Ortega, Dr. Riggs, and LBJ. These records
results.                                                       reveal that Garrett began receiving obstetrical care at LBJ
                                                               in September 2003 and “underwent her first obstetrical
In July 2005, Garrett went to the LBJ emergency room           exam with L. Hunt, WNPC on October 3, 2003.” Hunt, a
complaining of “worsening pain” in her left breast, and        nurse practitioner, recorded a nodule on Garrett’s left
she was told, for the first time, of her diagnosis of ductal   breast and made notes “reflecting appropriate assessment
carcinoma “from the initial November 25, 2003 needle           and plans for referral.” Furthermore, “the attending
biopsy.” During this visit, the LBJ oncology clinic            physician,” Riggs, “also made a note ... reflecting
evaluated Garrett and informed her that she had “metastic      knowledge of the breast exam and nodule.”
breast cancer which had spread to her lumbar spine and
lymph nodes in her chest.”                                     These records reveal that Garrett had an ultrasound
                                                               performed at LBJ on October 6, 2003, and, as a result,
The Garretts allege that the defendants were negligent in      LBJ’s “radiology staff” recommended a biopsy. Dr. Riggs
failing to (1) “timely inform [Garrett] of her cancer”; (2)    was notified of the findings of the ultrasound on October
“procure the results of the November 25, 2003 biopsy”;         10, 2003, and, on that same date, a “referral note [was]
and (3) “follow appropriate American College of                made for [Garrett] to go to the breast clinic.” Garrett
Radiology (‘ACR’) guidelines.” Garrett contends that as a      attended her second prenatal visit at the “LBJ obstetrical
result of defendants’ negligence, her “cancer spread           clinic” on October 31, 2003, and Hunt again examined
beyond the confines of her breast,” rendering her              her. Hunt’s notes reflect that Hunt “continued
“treatment options and the effectiveness of treatment ...      surveillance” of Garrett’s breast nodule and that Garrett
much more limited” and “resulting in injuries from an          had a biopsy appointment in November 2003. Garrett
acceleration and metastatis of her cancer, a significantly     attended her third prenatal visit at the “LBJ obstetrical
reduced life expectancy, lost effective medical treatment      clinic” on November 26, 2003, and Hunt again examined
and therapy, and medical and surgical treatment that was       her. Notes from this exam indicate that Garrett’s biopsy
unnecessary.” The Garretts seek damages for physical           was performed on November 25, 2003 and that a follow-
pain, impairment, mental anguish, disfigurement, medical       up appointment was scheduled for December 10, 2003.
expenses, *174 lost earnings, and loss of consortium.
                                                               The records of the LBJ radiology department also show
The Garretts timely served HCHD with an expert report4         that Garrett’s biopsy was performed on November 25,
by Dr. Robert McWilliams, M.D. In his report,                  2003 and that samples “were obtained and sent to
McWilliams details his qualifications as follows:              pathology for review.” The LBJ pathology department’s
                                                               report indicates a “final pathologic diagnosis” of ductal
                                                               carcinoma.5
  I am a board-certified OBGYN and a Fellow of the
  American College of Obstetricians and Gynecologists.         Dr. Ortega’s notes and Garrett’s medical records show
  I am also board eligible in Reproductive                     that Garrett transferred her *175 care to Ortega in late
  Endocrinology. I have practiced obstetrics and               2003 and that Ortega provided Garrett obstetrical care
  gynecology as a private practitioner in Denver,              until April 20, 2004. On November 13, 2003, during
  Colorado from July 1979 through June, 1998,                  Ortega’s initial physical of Garrett, he noted her abnormal
  following my residency at Los Angeles County/USC             breast mass. Furthermore, an “authorization for release of
  Medical Center. I completed a 2–year fellowship in           information” was completed, authorizing LBJ to release
  Reproductive Endocrinology at Baylor College of              Garrett’s records to Ortega. Although Ortega’s notes from
  Medicine in Houston in June 1990. I was an assistant         Garrett’s December 18, 2003 visit show that the results of
  professor in the Department of Obstetrics and                Garrett’s biopsy were “to be given on 12/23/03,” on
  Gynecology, Division of Reproductive Endocrinology           January 15, 2004, Ortega noted that he was “[u]nable to
  at the University of Texas Medical School at Houston         obtain Bx. Results (LBJ.), last mo., (Hospital Reportedly
  from 1990 through 1992. I was Head of the Division of        charging pt. $90.00 to give her results!?). Report
  Reproductive Endocrinology, Department of Obstetrics         requested.” Thus, as Dr. McWilliams notes in his report,
  and Gynecology at MacGregor Medical Association in           there is some evidence that, despite their requests, Ortega
  Houston from January, 1993 until October, 1999. I            and Garrett were not able to obtain the biopsy results from
  reentered private practice in 2000, and am currently a       LBJ.
  solo practitioner in Gynecology and Reproductive
  Endocrinology in Houston, Texas.                             Dr. McWilliams further states in his report that Garrett
In preparing his report, Dr. McWilliams reviewed the           visited the LBJ emergency room on July 11, 2005 “with a
pertinent office and clinical notes and lab and radiology      6 month history of left breast pain and swelling.” LBJ’s

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  2
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



notes reveal that a breast ultrasound and a surgical consult         *176 a combination of factors more than likely
with the oncology clinic was ordered, and a specific note            contributed to the failure to notify Ms. Garrett of her
from the emergency room to the oncology service stated               breast cancer diagnosis.
“no follow up on this ever, please evaluate.” McWilliams
reviewed Garrett’s subsequent medical records, which                 ....
confirmed the existence of “advanced disease ... with
metastasis.” Garrett initiated treatment soon after she              Without a diagnosis of breast cancer then, no effective
learned of her diagnosis.                                            diagnostic measure and therapeutic options were
                                                                     considered or offered Ms. Garrett. The inevitable
Based upon the above facts, Dr. McWilliams opines in his             consequence of Ms. Garrett’s breast cancer and its
report that “the medical care provided by LBJ Hospital               advancement to a poor prognosis with metastasis over
and the physicians providing care to Garrett fell below the          an approximate 20 month delay could most likely have
standard of care.” McWilliams further opines that                    been prevented with confirmation of the disease at the
“[n]umerous physicians and support staff personnel at                time of her biopsy.
LBJ Hospital were involved in Ms. Garrett’s diagnosis
and confirmation by breast biopsy of breast cancer[,] [y]et    HCHD filed objections to Dr. McWilliams’s report and a
notification of this unfortunate diagnosis to Ms. Garrett      motion to dismiss, which the trial court denied.
soon after the diagnosis” was never made “via phone call
or certified letter.” In response to any potential defenses
to be raised by LBJ and its staff, McWilliams concludes
that “[t]he fact that Ms. Garrett transferred her care to an
                                                                                    Standard of Review
obstetrician outside the LBJ hospital system [did] not
absolve them from notifying Ms. Garrett of her breast          [1]
                                                                  We review a trial court’s decision on a motion to
cancer diagnosis.” Also, accepting the truth of Dr.            dismiss under section 74.351 for an abuse of discretion.
Ortega’s notes regarding his inability to obtain the           See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
biopsy’s results from LBJ and LBJ’s attempt to charge          46 S.W.3d 873, 875 (Tex.2001) (predecessor statute);
Garrett $90 before releasing her results, “the medical         Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858
records department of LBJ Hospital was also liable in          (Tex.App.-Houston [1st Dist.] 2006, no pet.). A trial court
contributing to the failure to notify Ms. Garrett of her       abuses its discretion if it acts in an arbitrary or
diagnosis of cancer before it continued to advance to a        unreasonable manner without reference to guiding rules
stage of poorer prognosis.” With regard to the LBJ             or principles. See Garcia v. Martinez, 988 S.W.2d 219,
Hospital system, McWilliams stated,                            222 (Tex.1999). When reviewing matters committed to
                                                               the trial court’s discretion, we may not substitute our own
  Where the greatest degree of medical liability within
                                                               judgment for that of the trial court. Bowie Mem’l Hosp. v.
  the LBJ hospital system lies with respect to notification
                                                               Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does
  of this diagnosis to Ms. Garrett is difficult to say. From
                                                               not abuse its discretion merely because it decides a
     (1) Dr. Riggs, her obstetrician who first made the        discretionary matter differently than an appellate court
     diagnosis of a left breast mass to[;]                     would in a similar circumstance. Gray, 189 S.W.3d at
                                                               858.
     (2) L. Hunt, her nurse practitioner who initially
     examined Ms. Garrett’s left breast mass and
     continued her surveillance of the mass and
     recommended Ms. Garrett keep her appointments
                                                                                       Expert Report
     with the radiology department for a diagnosis of this
     mass to[;]                                                In its sole issue, HCHD argues that the trial court abused
                                                               its discretion in denying its motion to dismiss because Dr.
     (3) the radiology staff or physicians who performed
                                                               McWilliams’s expert report (1) “included no curriculum
     the needle biopsy of the breast mass to[;]
                                                               vitae and nowhere in the body of the report did it show
     (4) the pathology department where the tissue             the author was a competent expert as to [HCHD]”; (2)
     diagnosis was initially made to[;]                        “failed to identify the standard of care applicable to
                                                               [HCHD]”; and (3) “failed to show that any conduct of
     (5) the medical records department who may or may         [HCHD] caused any damages.”
     not have refused to give Ms. Garrett her medical
     records,
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



A plaintiff bringing a healthcare liability claim must
                                                                  [9]
provide each defendant health care provider with an                  In regard to the Garretts’ service of Dr. McWilliams’s
expert report or voluntarily nonsuit the action. See TEX.         curriculum vitae, HCHD has failed to cite any authority
CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon                       for the proposition that a curriculum vitae must be
Supp.2006); Gray, 189 S.W.3d at 858. The expert report            furnished as a separate document.6 Section 74.351(a)
is defined as a fair summary of the expert’s opinions as of       provides merely that a claimant shall serve “one or more
the date of the report regarding the applicable standards of      expert reports, with a curriculum vitae of each expert.”
care, the manner in which the care rendered by the health         TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)
care provider failed to meet the standards, and the causal        (Vernon Supp.2006) (emphasis added). Section 74.402,
relationship between that failure and the injury, harm, or        which addresses the qualifications of an expert in a suit
damages claimed. See TEX. CIV. PRAC. & REM.CODE                   against a health care provider, also does not include a
ANN. § 74.351(r)(6) (Vernon Supp.2006). If a plaintiff            requirement that a curriculum vitae be served as a
timely files an expert report, a defendant may then file an       separate document. Id. § 74.402 (Vernon 2005).
objection challenging the sufficiency of the report. Id. §
                                                                  [10]
74.351(a). The trial court shall grant a motion to dismiss            In regard to Dr. McWilliams’s qualifications, section
only if it appears to the court, after hearing, that the report   74.351 defines “expert,” with respect to a person giving
does not represent an objective good-faith effort to              opinion testimony regarding whether a health care
comply with the definition of an expert report. Id. §             provider departed from accepted standards of health care,
74.351(l ).                                                       to mean “an expert qualified to testify under the
                                                                  requirements of Section 74.402.” Id. § 74.351. Under
[2] [3] [4] [5] [6] [7] [8]
                      The only information relevant to the        section 74.402, a person may qualify as an expert witness
inquiry is within the four corners of the document.               on the issue of whether the health care provider departed
Palacios, 46 S.W.3d at 878. Although the report need not          from accepted standards of care only if the person,
marshal all the plaintiff’s proof, it must include the
expert’s opinion on each of the elements identified in the               (1) is practicing health care in a field of practice that
statute. See Palacios, 46 S.W.3d at 878–79; Gray, 189                    involves the same type of care or treatment as that
S.W.3d at 859. In setting out the expert’s opinions, the                 delivered by the defendant health care provider, if
report must provide enough information to fulfill two                    the defendant health care provider is an individual, at
purposes if it is to constitute a good-faith effort. Palacios,           the time the testimony is given or was practicing that
46 S.W.3d at 879. First, the report must *177 inform the                 type of health care at the time the claim arose;
defendant of the specific conduct the plaintiff has called
into question. Id. Second, the report must provide a basis               (2) has knowledge of accepted standards of care for
for the trial court to conclude that the claims have merit.              health care providers for the diagnosis, care, or
Id. A report that merely states the expert’s conclusions                 treatment of the illness, injury, or condition involved
does not fulfill these two purposes. Id. Rather, the expert              in the claim; and
must explain the basis of his statements to link his
conclusions to the facts. Bowie, 79 S.W.3d at 52.                        (3) is qualified on the basis of training or experience
However, a plaintiff need not present evidence in the                    to offer an expert *178 opinion regarding those
report as if she were actually litigating the merits.                    accepted standards of health care.
Palacios, 46 S.W.3d at 879. Furthermore, the report can
                                                                  Id. § 74.402(b) (Vernon 2005).
be informal in that the information in the report does not
have to meet the same requirements as the evidence
                                                                  “Practicing health care” is defined as including (1)
offered in a summary judgment proceeding or at trial. Id.
                                                                  training health care providers in the same field as the
                                                                  defendant health care provider at an accredited
                                                                  educational institution or (2) serving as a consulting
Curriculum Vitae and Qualifications                               health care provider and being licensed, certified, or
HCHD first contends that it was not permissible for Dr.           registered in the same field as the defendant health care
McWilliams to set forth his curriculum vitae in a                 provider. Id. § 74.402(a)(1), (2). To determine whether an
paragraph contained in his expert report. Alternatively,          expert “is qualified on the basis of training or experience”
HCHD contends that the curriculum vitae is “grossly               under subsection (b)(3), a court is to consider whether the
inadequate” because it fails to establish Dr. McWilliams’s        expert (1) is certified by a licensing agency of one or
credentials as an expert “on the operation of a major             more states of the United States or a national professional
metropolitan hospital’s records systems or pathology              certifying agency, or has other substantial training or
labs.”                                                            experience, in the area of health care relevant to the claim

                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    4
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



and (2) is actively practicing health care in rendering         expert “on *179 the operation of a major metropolitan
health care services relevant to the claim. Id. §               hospital’s records systems or pathology labs.”
74.402(c)(1), (2) (Vernon 2005).

As stated in his expert report, Dr. McWilliams is “a
board-certified OBGYN and a Fellow of the American              Standard of Care
College of Obstetricians and Gynecologists” and is also         HCHD next argues that Dr. McWilliams’s report is
“board eligible in Reproductive Endocrinology.”                 inadequate because “it fails to identify the standard of
Following his residency, McWilliams practiced obstetrics        care that was allegedly breached” and “never states what
and gynecology from July 1979 through June 1988. Then,          should have been done.” HCHD asserts that
after completing a two-year fellowship in Reproductive          McWilliams’s statements in his report that no person
Endocrinology at Baylor College of Medicine, he served          notified Garrett of her diagnosis does not establish that
as an assistant professor at the University of Texas            the standard of care required such notification. HCHD
Medical School in the Department of Obstetrics and              also asserts that Garrett was being treated by multiple
Gynecology for two years. McWilliams subsequently               health care providers, including nurses and physicians,
served as the head of the reproductive endocrinology            “who all may or may not have had access to the
division for the department of obstetrics and gynecology        information,” and that the complaint that all of those
at a medical association for approximately seven years.         providers failed to inform her of her cancer diagnosis
Finally, he reentered private practice in 2000, and             does not show a duty owed by any one provider.
currently practices as a solo practitioner in gynecology
                                                                [11] [12] [13]
and reproductive endocrinology in Houston.                                  In identifying the standard of care, whether a
                                                                defendant breached his or her duty to a patient cannot be
We note that the specific nature of the Garretts’ claims is     determined absent specific information about what the
that HCHD employees and staff failed to inform Garrett          defendant should have done differently. Palacios, 46
of her diagnosis and failed to release her medical records      S.W.3d at 880. While a “fair summary” is something less
to both her and her doctor. The pertinent standard of care      than a full statement of the applicable standard of care and
identified in Dr. McWilliams’s report is that HCHD              how it was breached, even a fair summary must set out
employees and staff should have timely informed Garrett         what care was expected, but not given. Id. When a
of her cancer diagnosis and should have released her            plaintiff sues more than one defendant, the expert report
medical records, including her biopsy results, to both her      must set forth the standard of care for each defendant and
and her doctor upon their respective requests. In regard to     explain the causal relationship between each defendant’s
the nature of the Garretts’ claims and the pertinent            individual acts and the injury. See Doades v. Syed, 94
standard of care, HCHD has provided us with no authority        S.W.3d 664, 671–72 (Tex.App.-San Antonio 2002, no
that would require McWilliams to possess expertise “on          pet.); Rittmer v. Garza, 65 S.W.3d 718, 722–23
the operation of a major metropolitan hospital’s records        (Tex.App.-Houston [14th Dist.] 2001, no pet.).
systems or pathology labs.”
                                                                [14]
                                                                     The pertinent standard of care identified by Dr.
We conclude that Dr. McWilliams is qualified to serve as        McWilliams is that an HCHD employee should have
an expert on the issue of whether HCHD departed from            informed Garret of her biopsy results and should have
the accepted standards of care in regard to the Garretts’       released those results upon Garrett’s or Dr. Ortega’s
claims. McWilliams established his expertise in the fields      request. See Columbia Rio Grande Regional Healthcare,
of obstetrics and gynecology and satisfied the statutory        L.P. v. Hawley, 188 S.W.3d 838, 843–44, 848–51
requirements by showing that he is practicing health care       (Tex.App.-Corpus Christi 2006, pet. filed) (affirming jury
in a field of practice that involves the same type of care or   verdict against hospital for its negligence in failing to
treatment as that delivered by HCHD; has knowledge of           timely and properly convey cancer diagnosis to patient for
accepted standards of care for health care providers for        almost full year); see also Bowie, 79 S.W.3d at 52
the diagnosis, care, or treatment of the illness, injury, or    (recognizing that report fairly summarized standard of
condition involved in the claim; and is qualified on the        care because it stated that hospital should have established
basis of training or experience to offer an expert opinion      procedures to read and interpret x-rays in timely manner
regarding those accepted standards of health care.              and to inform patients about results). HCHD asserts that
Accordingly, we hold that the trial court did not err in        no one, other than the pathology department and records
denying HCHD’s motion to dismiss the health care                department, are even mentioned in the report in relation to
liability claims of the Garretts on the grounds that Dr.        the hospital. However, although the report primarily
McWilliams set forth his curriculum vitae in his expert         focuses on the actions of Garrett’s treating physicians,
report and that he did not establish his credentials as an      including Dr. Riggs, the attending physician at LBJ, the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



report also specifically references both the conduct of         Furthermore, Dr. McWilliams’s report indicates that after
nurse practitioner Hunt and the conduct of LBJ’s medical        Garrett transferred her care to Dr. Ortega, an OBGYN
records department in refusing or failing to release            outside of the LBJ system, Ortega and Garrett sought to
Garrett’s biopsy results when Dr. Ortega and Garrett            obtain the biopsy results from LBJ, but were unable to
requested those results. Thus, we conclude, from our            obtain them. McWilliams opined that LBJ staff in the
review of the four corners of the report, and in light of the   medical records department had a responsibility to
specific nature of the Garretts’ claims, that the report        provide Garrett her medical records, including her biopsy
informs HCHD of the specific conduct that the Garretts          results, and that the failure to provide those results
have called into question, the standards of care that should    violated HCHD’s standard of care. Again, in response to
have been followed, and what HCHD should have done.             any potential claim by HCHD that Dr. Ortega, or another
Accordingly, we hold that the trial court did not err in        treating physician for which HCHD was not liable, was
denying HCHD’s motion to dismiss the health care                solely charged with the responsibility to notify Garrett,
liability claims of the Garretts on the ground that             McWilliams asserted that HCHD was not absolved of its
McWilliams’s report fails to identify HCHD’s standard of        responsibility to notify Garrett of her diagnosis because
care and state what HCHD should have done.                      she transferred her care to a doctor outside the LBJ
                                                                system. McWilliams also noted in his report, despite
                                                                HCHD’s apparent failure or refusal to release Garrett’s
                                                                records, that a form authorizing the release of her medical
Causation                                                       records to Dr. Ortega had been completed.
[15]
     Finally, HCHD asserts that Dr. McWilliams’s report
“never identifies what caused the alleged damages” and          In regard to whether Garrett sustained any harm as a
does not show that Garrett “actually sustained” any             result of the approximately one and one-half year delay in
damages. HCHD also asserts that the *180 report                 learning of her cancer diagnosis, Dr. McWilliams stated
indicates only that the delay in informing her of her           in his report that when Garrett finally visited the LBJ
diagnosis led to a “a poor forecast for the disease,” which     emergency room, she presented “with a 6 month history
“is not an actual damage.” Further, HCHD asserts that the       of left breast pain and swelling.” At this point, Garrett had
report did not show “that anything different would have         developed “advanced disease ... with metastasis.”
happened.” As noted above, an expert report must provide        McWilliams further stated that because of the delay in
a fair summary of the expert’s opinions regarding the           communicating the diagnosis, “no effective diagnostic
causal relationship between the failure of the health care      measure and therapeutic options were considered or
provider to provide care in accord with the pertinent           offered Ms. Garrett,” with the “consequence” of the
standard of care and the injury, harm, or damages               cancer’s “advancement to a poor prognosis with
claimed. TEX. CIV. PRAC. & REM.CODE ANN. §                      metastasis.” McWilliams opined that such advancement
74.351(r)(6). Here, Dr. McWilliams states in his report         with metastasis7 “could most likely have been prevented
that Hunt, a nurse practitioner who examined Garrett            with confirmation of the disease at the time of her biopsy”
during her prenatal visits, was assisting in “continued         and absent the “approximate 20 month delay.”
surveillance” of Garrett’s breast nodule, was aware of the
biopsy, and failed to inform Garrett of her diagnosis.          *181 In support of its causation argument, HCHD relies
McWilliams also states in his report that the LBJ               on Bowie, where the plaintiff alleged that a hospital’s
radiology department performed a biopsy of Garrett’s left       physician’s assistant misread or misplaced an x-ray and,
breast on November 25, 2003, the biopsy samples were            therefore, did not discover that the plaintiff had fractured
sent to LBJ’s pathology department for review, and a            her foot. Bowie, 79 S.W.3d at 50. Approximately one
“final pathologic diagnosis” of ductal carcinoma was            month later, the plaintiff’s orthopedic surgeon discovered
made on December 1, 2003, yet Garrett was never                 the fractured foot. Id. The plaintiff filed an expert report,
notified of this diagnosis by any LBJ employee.                 which stated that had the x-ray been properly read, she
McWilliams opined that nurse Hunt as well as LBJ                “would have had the possibility of a better outcome.” Id.
employees in the pathology department and LBJ’s                 at 51. The supreme court, after recognizing that a report
“radiology staff” had a responsibility to notify Garrett of     need not use any particular magical words, held that the
this diagnosis. McWilliams also cited in his report a note      trial court could have reasonably determined that the
from LBJ’s emergency room to the oncology service,              report did not represent a good-faith effort to summarize
made after Garrett visited the LBJ emergency room in            the causal relationship. Id. at 53. The court noted that the
July 2005, that stated “no follow up on this ever, please       report simply opined that the plaintiff had a “possibility of
evaluate.” (emphasis added).                                    a better outcome,” and did not sufficiently “[link] the
                                                                expert’s conclusion (that [the plaintiff] might have had a


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     6
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)



better outcome) to [the hospital’s] alleged breach (that it                  inform Garrett of her diagnosis eliminated the availability
did not correctly read and act upon the x-rays).” Id.                        of effective diagnostic measures and therapeutic options.

Here, in contrast, Dr. McWilliams opined in his expert                       We conclude that Dr. McWilliams, in his report, provided
report that HCHD’s breach of its standard of care                            a fair summary of the causal relationship between
permitted Garrett’s cancer to advance and metastasize.                       HCHD’s failure to meet the pertinent standard of care and
See Linan v. Rosales, 155 S.W.3d 298, 305–06                                 the Garretts’ damages. Accordingly, we hold that the trial
(Tex.App.-El Paso 2004, pet. denied) (affirming verdict in                   court did not err in denying HCHD’s motion to dismiss
favor of plaintiff for doctor’s failure to timely diagnose                   the health care liability claims of the Garretts’ on the
cancer based on evidence that during two-month period                        ground that McWilliams’s report does not show that
cancer “involved the lymph vessels” and caused edema                         HCHD’s conduct actually caused the Garretts’ any
and that advancement of cancer eliminated option of                          damages.
breast conserving therapy); In re Barker, 110 S.W.3d 486,
491 (Tex.App.-Amarillo 2003, no pet.) (finding expert                        We overrule HCHD’s sole issue.
report stating that negligent failure to recognize medical
condition and delay in treatment increased severity of
plaintiff’s injuries to be sufficient). McWilliams further
noted in his report that as a result of the failure to timely
inform Garrett of her cancer, Garrett, in July 2005,                                                    Conclusion
presented herself at LBJ’s emergency room with a six
month history of pain and swelling in her breast.                            We affirm the order of the trial court.
Furthermore, McWilliams opined that the failure to timely

Footnotes
1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2006).

2      “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of
       treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or
       administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the
       claimant’s claim or cause of action sounds in tort or contract.” Id. § 74.001(a)(13) (Vernon 2005). “Health care provider”
       includes any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered,
       or chartered by the State of Texas to provide health care, including a registered nurse or a health care institution. Id. §
       74.001(a)(12)(A). “Health care institution” includes a hospital or a hospital system. Id. § 74.001(a)(11).
3      The Garretts sued HCHD doing business as Lyndon B. Johnson Hospital (“LBJ”). Thus, references in this opinion to LBJ
       implicate HCHD. The Garretts also sued Michelle Lesslie, D.O., Marian Bonner, M.D., Emily Robinson, M.D., Enrique Ortega,
       M.D., the University of Texas System, and the University of Texas Health Science Center at Houston, none of whom are parties
       to this appeal.
4      See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp.2006).

5      Dr. McWilliams summarizes the report as follows: “A final pathological diagnosis of the biopsied left breast nodule to be
       ‘breast with ductal carcinoma, modified Black’s Nuclear Grade: 3 (poorly differentiated), focus suspicious for lymphovascular
       invasion identified, and ductal carcinoma in situ: possible foci present, await immunostains for confirmation.’ ”
6      Papkov v. Schiffman, No. 01–00–01099–CV, 2002 WL 1041118, at *1 (Tex.App.-Houston [1st Dist.] May 23, 2002, no pet.)
       (mem. op.), the case cited by HCHD in support of its argument, is not on point as the appellant in that case wholly failed to file
       a curriculum vitae. Id. Moreover, we note that the Corpus Christi Court of Appeals has rejected a similar complaint. See
       Carreras v. Marroquin, No. 13–05–082–CV, 2005 WL 2461744, at *2 (Tex.App.-Corpus Christi Oct. 6, 2005, pet. filed) (mem.
       op.) (“The statute does not expressly prohibit a claimant from including the curriculum vitae within the body of the report, as
       was done in this case.”).
7      “Metastasis” means “the development of secondary malignant growths at a distance from a primary site of cancer.” THE NEW
       OXFORD AMERICAN DICTIONARY 1074 (1st ed.2001).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        7
Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)




End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          8
Hebert v. Hopkins, 395 S.W.3d 884 (2013)




                                                                 William E. Zook, Jr., David W. Townend, Ted B. Lyon &
                   395 S.W.3d 884                                Associates, P.C., Mesquite, TX, for appellant.
               Court of Appeals of Texas,
                        Austin.                                  Before Chief Justice JONES, Justices PEMBERTON and
                                                                 ROSE.
   Richard HEBERT and Janet Hebert, Appellants
                      v.
  Timothy E. HOPKINS, M.D., and Shannon Clinic,
                  Appellees.

       No. 03–11–00419–CV. | March 1, 2013.                                              OPINION

                                                                 BOB PEMBERTON, Justice.
Synopsis
Background: Patient filed health care liability claim            Richard Hebert and his wife, Janet Hebert, appeal from a
(HCLC) against neurosurgeon and clinic in connection             district court judgment dismissing, for failure to serve the
with spinal-fracture surgery that purportedly rendered           expert report required by chapter 74 of the civil practice
patient a quadriparetic. The District Court, Tom Green           and remedies code, a health care liability claim they
County, 391st Judicial District, Thomas J. Gossett, J.,          asserted against Timothy Hopkins, M.D., and Shannon
dismissed claim after concluding patient had failed to           Clinic.1 The Heberts bring two issues, urging respectively
serve an expert report meeting statutory requirements.           that (1) the district court abused its discretion in
Patient appealed.                                                concluding that they failed to serve an expert report
                                                                 complying with chapter 74; and (2) chapter 74’s expert-
                                                                 report requirement violates various constitutional
                                                                 protections. We will overrule these contentions and affirm
Holdings: The Court of Appeals, Bob Pemberton, J., held
                                                                 the district court’s judgment.
that:
[1]
   trial court did not abuse its discretion in concluding that
patient’s expert report did not adequately describe
standard of care or alleged breach thereof;                                          BACKGROUND
[2]
   statutory requirements applicable to expert reports in        The Heberts filed the underlying suit alleging that Dr.
support of HCLCs were rationally related to legitimate           Hopkins, a neurosurgeon, committed professional
state purpose and therefore did not violate equal                negligence in performing spinal surgery on Richard
protection based on disparate treatment of health care           Hebert at Shannon in September 2008 after Richard broke
liability claimants and other litigants;                         his neck in a fall. Specifically, they pled that Richard had
                                                                 presented with a fracture of the cervical 6(C6) vertebra
[3]
   those requirements did not violate separation-of-powers       that was “very unstable” due to a preexisting condition
principles; and                                                  known as ankylosing spondylitis that had self-fused his
                                                                 spinal vertebrae on either side of the fracture; that the
[4]
  patient failed to demonstrate that those requirements, as      standard of care in such circumstances had required
applied to him, violated open-courts provision of Texas          Hopkins to perform “an anterior and posterior fusion
constitution.                                                    surgery” to ensure stability; that Hopkins had performed
                                                                 “an anterior fusion with plates and screws at C4–C7 but
                                                                 took no appropriate surgical measures to stabilize the
Affirmed.                                                        fusion posteriorly;” and that the anterior-only fusion had
                                                                 subsequently “failed as one or more of the screws had
J. Woodfin Jones, C.J., filed a dissenting opinion               pulled out causing the vertebral segments to move and
                                                                 compress the spinal cord at C4–C7,” rendering Richard a
                                                                 quadriparetic (i.e., paralyzed in all four limbs). The
Attorneys and Law Firms                                          Heberts asserted that Shannon was vicariously liable for
                                                                 Hopkins’s negligence by virtue of Hopkins’s status as a
*888 Dana D. Banks, Smith Rose Finley, P.C., San
                                                                 “partner or member” of the clinic.
Angelo, TX, for appellee.
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                                 provider failed to *890 meet the standards, and the causal
Within 120 days thereafter, in an attempt to comply with         relationship between that failure and the injury, harm, or
chapter 74’s expert-report requirement, the Heberts              damages claimed.”8 “A court shall grant a motion
served a report from P. Merrill White, M.D., along with          challenging the adequacy of an expert report only if it
Dr. White’s curriculum vitae.2 Hopkins *889 and Shannon          appears to the court, after hearing, that the report does not
timely objected to the sufficiency of Dr. White’s report,        represent an objective good faith effort to comply” with
asserting that the report had failed to adequately set forth,    this definition of “expert report.”9 To constitute a “good
and was “conclusory” with respect to the underlying              faith effort,” as the Texas Supreme Court has explained,
factual bases of, opinions regarding the applicable              the report must include the expert’s opinion on “each of
standard of care for Hebert in light of his underlying           the three main elements: standard of care, breach, and
medical conditions, the manner in which Hopkins’s care           causation,” and must provide enough information to fulfill
had failed to meet that standard, or a causal linkage to the     two purposes with respect to each element: (1) it must
fusion failure and Richard’s injuries.3 By now, the 120–         inform the defendant of the specific conduct the plaintiff
day period for serving an “expert report” had expired, so        has called into question; and (2) it must provide a basis
appellees also moved to dismiss the Heberts’ suit with           for the trial court to conclude that the claims have merit.
prejudice and sought a mandatory award of attorney’s             See Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9
fees.4 Both sides submitted briefing on the merits of            (Tex.2010); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
appellees’ objections. Following a hearing at which the          52 (Tex.2002) (per curiam); American Transitional Care
parties presented argument, the district court sustained         Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79
appellees’ objections but granted the Heberts a thirty-day       (Tex.2001). Although these requirements do not require a
extension to cure any deficiencies.5                             plaintiff to marshal all of his or her proof or to present
                                                                 expert testimony in a form that would be admissible at
Within the extension period, the Heberts served a                trial, see Jelinek, 328 S.W.3d at 539–40 & n. 9, they do
supplemental report from White. Contending that White’s          necessitate that “the expert must explain the basis for his
supplemental report had failed to cure the deficiencies in       statements to link his conclusions to the facts” and not
his original report, appellees again moved to dismiss the        merely state conclusions. Id. (quoting Wright, 79 S.W.3d
Heberts’ suit with prejudice.6 The Heberts filed a response      at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890
joining issue regarding the sufficiency of the two reports       (Tex.1999))); see also id. at 539–40 (observing, with
and also asserting that chapter 74’s expert-report               respect to the causation element, “the expert must ...
requirement violates various protections of the U.S. or          explain, to a reasonable degree, how and why the breach
Texas constitutions. Following a hearing, the district court     caused the injury based on the facts presented”). This is
granted appellees’ motion to dismiss. Subsequently, after        so, in the supreme court’s view, because “ ‘[a] report that
hearing evidence, the district court awarded appellees           merely states the expert’s conclusions about the standard
attorney’s fees as required by chapter 74,7 and this order       or care, breach, and causation’ does not fulfill the two
also served to make the court’s prior dismissal order final.     purposes of a good-faith effort.” Id. at 539 (quoting
The Heberts then timely perfected this appeal.                   Palacios, 46 S.W.3d at 879); see also id. at 540 (expert
                                                                 “must include sufficient detail” regarding how breach
                                                                 caused plaintiff’s injuries “to allow the trial court to
                                                                 determine if the claim has merit”).

                        ANALYSIS                                 [3]
                                                                      Importantly, the only information relevant to
                                                                 determining whether an expert report complies with these
Sufficiency of expert reports                                    requirements is that contained within “the four corners” of
In their first issue, the Heberts urge that the district court   the report itself. Palacios, 46 S.W.3d at 878.
abused its discretion in holding that Dr. White’s report,        Consequently, neither the trial court nor this Court may
either in its original form or as supplemented, did not          infer additional opinions or underlying facts to fill in gaps
represent an objective good faith effort to comply with the      that the report itself leaves open. See Wright, 79 S.W.3d
statutory definition of an expert report.                        at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d
[1] [2]                                                          276, 279 (Tex.App.-Austin 2007, no pet.) (this
      The standards governing the contents of the expert         requirement “precludes a court from filling gaps in a
report or reports required by chapter 74 are well                report by drawing inferences or guessing as to what the
established. Chapter 74 defines an “expert report” as “a         expert likely meant or intended” (citing Wright, 79
fair summary of the expert’s opinion as of the date of the       S.W.3d at 53)).
report regarding applicable standards of care, the manner
in which the care rendered by the physician or health care

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)


[4]
   Our standard of review is likewise limited. Chapter 74       S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111
imposes a mandatory duty on a trial court to grant a            S.W.3d 56, 63 (Tex.2003)).
motion challenging the adequacy of an expert report “if it
                                                                [5]
appears to the court” that the report does not meet the            Applying this deferential abuse-of-discretion standard
above-described requirements. See Tex. Civ. Prac. &             of review, we cannot conclude that the district court acted
Rem.Code Ann. § 74.351(l ) (“A court shall grant a              arbitrarily, unreasonably, and without guiding rules and
motion challenging the adequacy of an expert report only        principles in determining that Dr. White’s reports did not
if it appears to the court ... that the report does not         supply it sufficient information regarding his opinions
represent an objective good faith effort to comply with the     concerning standard of care and breach, as they relate to
definition of an expert report in Subsection (r)(6).”)          the underlying facts, to enable it to determine whether the
(emphasis added). *891 Conversely, the trial court is           Heberts’ claims had merit.
prohibited from granting such a motion unless such
noncompliance “appears to the court.” Id. (“A court shall       In his initial report, White summarized medical records
grant a motion challenging the adequacy of an expert            reflecting that Richard Hebert sought treatment at
report only if it appears to the court ....”) (emphasis         Shannon in the early morning hours of September 7,
added). But the linchpin determination that controls which      2008, following a fall in which he injured his neck, and
of these two alternative sets of mandatory duties               that Richard was placed under Hopkins’s care. According
applies—whether “it appears to the court” that the report       to White, CT scans and other evaluations revealed that
does not comply with the requirements—has been                  Richard had suffered “a trace traumatic subarachnoid
committed to the trial court’s sound discretion by the          hemorrhage” (i.e., bleeding on the brain) and a “fracture
Legislature. See Palacios, 46 S.W.3d at 877–78.                 through the superior vertebral body of C6 with a fracture
Consequently, we review the trial court’s determination         extending through the posterior elements of C5–6.” The
for abuse of that discretion. See Wright, 79 S.W.3d at 52       injury “was initially managed in a cervical collar which
(citing Palacios, 46 S.W.3d at 878).                            was changed to a Philadelphia collar and spinal
                                                                precautions were ordered” within about five hours. That
A trial court abuses its discretion when it acts in an          same evening, White indicated, Hopkins performed a
arbitrary or unreasonable manner without reference to any       surgical procedure in which the neurosurgeon *892 fused
guiding rules or principles. See id. (citing Downer v.          Richard’s C5–C6 vertebrae and implanted “C4 through
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42              C7 anterior instrumentation”—a plate over or along the
(Tex.1985)). “When reviewing matters committed to the           front of Richard’s spine, attached by screws to his bone—
trial court’s discretion, a court of appeals may not            to provide stability and support while the fracture healed.
substitute its own judgment for the trial court’s               On the following day, White continued, the medical
judgment.” Id. (citing Flores v. Fourth Court of Appeals,       records indicated that Richard had showed signs of
777 S.W.2d 38, 41 (Tex.1989)). We do not, in other              recovery progress and that “[c]ervical collar is
words, examine the contents of Dr. White’s reports and          discontinued per Dr. Hopkins’[s] order.” But four days
make our own de novo determination as to whether he has         later, during the afternoon of September 12, Richard had a
provided sufficient information, with respect to his            decline in neurological function and subsequent CT scans
opinions regarding standard of care, breach, and                “confirm[ed] failure of implant fixation at C6 and C7”
causation, to (1) inform appellees of the specific conduct      and injury to the spinal cord. Although another
the Heberts have called into question; and (2) provide a        neurosurgeon, Dr. Duarte, operated on Richard thereafter
basis for the district court to conclude that the claims have   to remove the failed anterior instrumentation and
merit. See Jelinek, 328 S.W.3d at 538–40 & n. 9; Wright,        implement a different type of fixation method, Richard
79 S.W.3d at 52; Palacios, 46 S.W.3d at 878–79. Instead,        ended up with “increased neurological deficit
we determine only whether the district court acted              (quadriparesis).”
arbitrarily, unreasonably, and without reference to guiding
rules and principles in determining that the reports failed     The medical records, as summarized by White,
to provide that information. See Wright, 79 S.W.3d at 52;       additionally reflected that Richard had a history of
see also Jelinek, 328 S.W.3d at 542 (Jefferson, C.J.,           “coronary artery disease treated with cardiac stints,
dissenting) (“The dividing line between a sufficient and        Plavix, and aspirin; cerebrovascular accident [ (i.e., a
an inadequate report is impossible to draw precisely. We        stroke) ] on two occasions with residual left hand
have said, therefore, that the determination must be made       paraesthesias [ (tingling or prickling sensations) ] treated
in the first instance by the trial court, and review of that    with Plavix and aspirin; and hypertension,” as well as
decision asks not how an appellate court would have             “ankylosing spondylitis,” a degenerative condition of the
resolved that issue, but instead whether the trial court        spine that causes both brittleness of bones and self-fusion
abused its discretion.”) (citing Jernigan v. Langley, 195       of vertebrae.

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                                However, in the next sentence, within the same
Although he did not indicate whether or how Richard’s           paragraph, White acknowledged that “clinical situations”
other medical conditions impacted the standard of care,         could arise in which anterior-only instrumentation,
White emphasized his opinion that a patient with                coupled with “supplemental protection” other than
ankylosing spondylitis warranted special precautions            posterior implementation, would be consistent with the
when performing surgery to address spinal fracture:             standard of care:

  In the surgical treatment of cervical spine fractures                     If the clinical situation in which the
  complicating ankylosing spondylitis, the prudent spine                    surgeon finds himself and the
  surgeon must recognize the unstable nature of these                       patient allows only inadequate
  fractures. The instability is contributed to by the long                  internal fixation, the surgeon is
  level arms cranial and caudal to the fracture site                        obligated to protect the patient
  resulting from the multilevel autofusion and poor bone                    supplementing the internal fixation
  quality associated with ankylosing spondylitis. These                     with external bracing and/or
  two factors result in increased susceptibility to spine                   activity        limitations.      The
  fractures as a result of relatively minor trauma, greater                 supplemental protection should
  instability, and a greater likelihood of neurologic deficit               continue until the patient can be
  resulting from a cervical fracture than found in patients                 returned to the operating room for
  with cervical spine fractures and otherwise normal                        additional internal fixation or the
  spinal anatomy.                                                           fracture becomes stable through
                                                                            healing.
  The prudent spine surgeon should design a surgical
  plan of care allowing decompression of the spinal cord,
  reduction of the traumatic deformity, and immediate           Following these statements regarding standard of care,
                                                                White turned to whether or how Hopkins breached an
  stabilization of the spinal column to protect the spinal
                                                                applicable standard. Consistent with the first portion of
  cord and to facilitate mobilization and nursing care to
                                                                his explanation of the standard of care, White began by
  the patient in the short term and healing of the spinal
                                                                asserting that Hopkins breached the standard by utilizing
  fusion in the longer term.
                                                                “anterior only plate/screw fixation”:
As for the standard of care regarding the specific means
by which these objectives should be achieved, White                         Dr. Timothy Hopkins’[s] choice of
initially  suggested     that    anterior-only    internal                  anterior only plate/screw fixation
instrumentation was inconsistent with the standard of care                  fails to meet the applicable
and that some form of posterior internal instrumentation,                   standard of care. Constrained
either additionally or as an alternative to anterior                        anterior cervical plates function as
instrumentation, would instead be preferable:                               tension band devices and require
                                                                            relative stability of the posterior
  Over the recent years, the debate of the spinal                           elements. In extension these
  community has been in which circumstances fusion                          devices resist distraction of the
  with posterior only fixation or fusion with anterior and                  anterior column. These devices do
  posterior    fixation     is    appropriate.    Anterior                  not effectively resist flexion forces
  instrumentation only is predictably inadequate in a                       and require stable posterior
  fracture pattern with gross anterior and posterior                        elements to limit deformity
  column instability such as Mr. Hebert’s. Adequate                         resulting from flexion forces. In the
  treatment of Mr. Herbert’s [sic] fracture requires                        absence of adequate posterior
  anterior and posterior instrumentation in order to meet                   stability,   anterior     plate/screw
  the standard of care.                                                     constructs typically fail in flexion
                                                                            by plate breakage or, as in this
  In Mr. Herbert’s [sic] situation, the standard of care                    case, by screw pullout. Mr.
  requires fixation stable *893 enough to allow                             Herbert’s [sic] fracture resulted in
  mobilization of the patient without loss of fixation                      significant instability of both the
  resulting in increased neurological deficits. This goal is                anterior and posterior elements at
  more likely to be achieved by multilevel posterior                        the C5–6 level. Anterior only
  internal fixation in addition to at least single level                    plate/screw fixation, in this setting,
  anterior internal fixation with fusion at appropriate                     is predictably doomed to failure.
  levels.
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   4
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



But in the next sentence, White seemed to allude to his      Among their objections to the sufficiency of White’s
previously expressed view that a surgeon could act within    initial report, appellees urged that the report did not
the standard of care by “supplementing” otherwise            represent an objective good faith attempt to comply with
“inadequate internal fixation” with some form of             chapter 74’s requirements—i.e., that it discussed the
“external bracing and/or activity limitations” as an         standard of care, breach, and causation with sufficient
alternative to posterior surgical fixation:                  specificity to (1) inform them of the conduct called into
                                                             question and (2) provide a basis for the district court to
            The prudent spine surgeon must                   determine that the claims have merit—because it was
            recognize the limitations of the                 internally inconsistent as to the standard of care that
            various internal fixation constructs             applied and did not address whether or not Hopkins
            available and if necessary must                  complied with the standard of care through the use of the
            compensate for the predictable                   “external bracing and/or activity limitation” White had
            weaknesses by adequate external                  contemplated. And these asserted deficiencies, appellees
            bracing and/or activity limitation.              further suggested, in turn undermined any factual bases
                                                             underlying White’s assertions that the standard of care
Then White ended his discussion of breach with the           either required Hopkins’s use of anterior-only internal
following conclusion:                                        fixation or was breached by his choice not to use posterior
                                                             interior fixation.
            The standard of care for the
            surgical treatment of this fracture              In arguing that the district court abused its discretion in
            requires a multilevel posterior                  sustaining appellees’ objections, the Heberts emphasize
            fixation and a fusion in conjunction             the portions of White’s initial report focusing on the
            with anterior fixation and fusion                relative merits of anterior versus posterior internal
            with or without supplemental                     fixation. But the district court was within its discretion
            external fixation as was ultimately              also to consider White’s recognition of an apparent
            performed by Dr. Duarte on                       exception, qualification, or limitation to his broader
            September 12, 2008.                              criticisms of anterior fixation: “the clinical situation in
                                                             which the surgeon finds himself and the patient” may
White then offered the following opinions as to causation,   “allow[ ] only inadequate internal fixation,” in which case
now referencing perceived inadequacies in internal and       the standard of care could be met by “supplementing the
external fixation without elaborating as to the nature or    internal fixation with external bracing and/or activity
identity of any of the latter category:                      limitations.” Along with White’s recognition of this
                                                             aspect of the standard of care, the court also could have
            The failure to choose the internal               reasonably considered that White never elaborated on the
            and external fixation construct                  nature or type of “clinical situation” that would “allow [ ]
            capable of providing stability to                only inadequate internal fixation” or whether such a
            allow mobilization of the patient,               situation did or did not exist in regard to Richard, a
            prevent spinal displacement, and                 patient who, as White acknowledged in his report, had a
            protect the spinal cord is the                   history of coronary artery disease, two strokes, and
            proximate cause of Mr. Herbert’s                 hypertension, not to mention bleeding on the brain from
            [sic] *894 increased neurologic                  his fall. The court likewise could reasonably have viewed
            deficit     (quadriparesis).    This             White’s references to “external bracing” or “activity
            occurred as a result of the                      limitations” as an alternative to further internal fixation as
            constrained anterior plate/screw                 begging the question as to whether the unspecified “spinal
            construct’s predictable inability to             precautions” Hopkins had ordered, the cervical collar
            neutralize flexion forces resulting              Richard wore following surgery, or other “external
            in screw pullout at C6 and C7                    bracing” or “activity limitations” Hopkins imposed had or
            levels followed by displacement of               had not satisfied the standard of care.
            the spinal column through the C5–6
            fracture/allograft     site     with             In short, we cannot conclude that the district court acted
            subsequent spinal cord injury and                arbitrarily, unreasonably, or without regard to guiding
            deterioration      of     neurologic             principles in determining that White’s initial report fell
            function.                                        short of describing the applicable standard or care or
                                                             breach thereof, as applicable to the underlying facts, with
                                                             sufficient specificity to provide the court a basis to

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   5
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



determine that White’s claims have merit. See Jelinek,          day extension; (2) the requirements focusing judicial
328 S.W.3d at 538–40 & n. 9; Wright, 79 S.W.3d at 52;           analysis of a report’s sufficiency solely on the “four
Palacios, 46 S.W.3d at 878–79. And in the face of such          corners” of the report and prohibiting courts from
deficiencies regarding standard of care and breach, the         considering extrinsic evidence of a claim’s merits; and (3)
district court would have acted within its discretion in        the mandatory requirement that courts dismiss health care
determining that any assertions by White to the effect that     liability claims with prejudice for failing to serve an
anterior-only internal fixation breaches the standard of        adequate expert report and also award attorney’s fees. The
care or that only posterior internal fixation can suffice       Heberts contend that these mechanisms unfairly “single
lack an underlying factual basis— *895 i.e., are                out” health care liability claimants for unconstitutional
“conclusory”—and fail to satisfy chapter 74. See Wright,        “disparate treatment,” deprive courts of judicial discretion
79 S.W.3d at 52 (“the expert must explain the basis of his      in violation of the separation-of-powers protections of the
statements to link his conclusions to the facts” (quoting       Texas Constitution, and deprive claimants of access to the
Earle, 998 S.W.2d at 890)).                                     courts in violation of due-process or open-courts
                                                                protections.10
The Heberts urge us to indulge a “fair reading” that
White’s opinions regarding unspecified “clinical                *896 When reviewing the constitutionality of a statute,
situations” refers to a surgeon who is attempting to            we begin with a presumption that it is constitutional.
perform a combined anterior and posterior procedure but         Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–61
gets interrupted by “surgical complications such as delays      (Tex.App.-Austin 2006, no pet.) (citing Walker, 111
or blood loss,” and that no such complications arose here.      S.W.3d at 66); see also Tex. Gov’t Code Ann. §
The dissent similarly relies on inferences or implications      311.021(1) (West 2005). The wisdom or expediency of
that such “extraordinary circumstances” were not present.       the law is the Legislature’s prerogative, not ours. Smith v.
But the problem with these arguments is that White never        Davis, 426 S.W.2d 827, 831 (Tex.1968). We presume that
actually says any of this in his initial report, and the        the Legislature has not acted unreasonably or arbitrarily.
established rule is that the report must stand or fall on the   Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983) (quoting
contents within its “four corners.” Palacios, 46 S.W.3d at      Davis, 426 S.W.2d at 831). The party challenging a
878. This requirement, again, “precludes a court from           statute’s constitutionality has the burden of proving that
filling gaps in a report by drawing inferences or guessing      the statute fails to meet constitutional requirements.
as to what the expert likely meant or intended.” Austin         Walker, 111 S.W.3d at 66. A party must show that a
Heart, P.A., 228 S.W.3d at 279 (citing Wright, 79 S.W.3d        statute is unconstitutional either on its face or as applied
at 53).                                                         to that party. Texas Workers’ Comp. Comm’n v. Garcia,
                                                                893 S.W.2d 504, 518 n. 16 (Tex.1995); see also City of
Nor did the district court abuse its discretion in holding      Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231,
that such deficiencies were not cured by White’s                240–41 (Tex.2001) (per curiam) (Owen, J., concurring).
supplemental report. In his supplement, although White          To sustain a facial challenge, the party must show that the
reiterates and emphasizes at length his conclusions and         statute, by its terms, always operates unconstitutionally.
assertions regarding anterior versus posterior fixation         Garcia, 893 S.W.2d at 528 n. 16. To sustain an as-applied
generally, nowhere does he address the deficiencies             challenge, the party must show that the statute is
concerning the standard of care and breach that the             unconstitutional when applied to that particular person or
district court could have perceived in his initial report.      set of facts. Id.

We overrule the Heberts’ first issue.                           We note at the outset that the Heberts face an uphill battle
                                                                because every court that has considered similar challenges
                                                                to chapter 74’s expert-report requirement, including this
                                                                Court, has rejected them. See, e.g., Stockton v. Offenbach,
Constitutional claims                                           336 S.W.3d 610, 618 (Tex.2011) (denying open-courts
[6] [7]
        In their second issue, the Heberts bring forward        challenge); Hightower v. Baylor Univ. Med. Ctr., 348
constitutional challenges to chapter 74’s expert-report         S.W.3d 512, 521–22 (Tex.App.-Dallas 2011, pet. denied)
requirement. While not appearing to quarrel with the            (rejecting special-law, vagueness, due-course-of-law, and
general concept that the Legislature can validly impose         separation-of-powers challenges); Broxterman v. Carson,
some form of threshold report requirement for asserting         309 S.W.3d 154, 159 (Tex.App.-Dallas 2010, pet. denied)
health care liability claims or other types of civil claims,    (rejecting due-process challenge); Gulf Coast Med. Ctr.,
the Heberts complain about three basic features of chapter      LLC v. Temple, No. 13–09–00350–CV, 2010 WL 196972,
74’s expert-report requirement: (1) the fixed deadline of       at *6 (Tex.App.-Corpus Christi Jan.21, 2010, no pet.)
120 days to serve an expert report, subject to a single 30–     (mem. op.) (rejecting due-process and due-course-of-law

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



challenges); Bogar v. Esparza, 257 S.W.3d 354, 372–73            but was the result of an accident or mistake. Id. §
(Tex.App.-Austin 2008, no pet.) (same); Wilson–Everett           13.01(d), (g).
v. Christus St. Joseph, 242 S.W.3d 799, 802–04
(Tex.App.-Houston [14th Dist.] 2007, pet. denied)                The Heberts also assert that “4590i did not mandate what
(rejecting separation-of-powers challenge); Ledesma v.           had to be included in the contents of the report,” and that
Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at                “there was no requirements or authorization for the court
*9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem.             to summarily dismiss the case based on the deficiencies in
op.) (rejecting due-process and open-courts challenges);         the language of the report.” They also contend that parties
Thoyakulathu v. Brennan, 192 S.W.3d 849, 855–56                  opposing an article 4590i expert report had to “satisfy
(Tex.App.-Texarkana 2006, no pet.) (due process does not         summary judgment procedures to secure a dismissal with
require “exceptions [to the expert-report requirement] that      prejudice.” To the contrary, a court considering the
would encompass any conceivable complication in order            sufficiency of an expert report under article 4590i, as
to pass constitutional muster”); Herrera, 212 S.W.3d at          under chapter 74, was limited to the “four corners” of the
461–62 (rejecting equal-protection, due-process, due-            report. See Palacios, 46 S.W.3d at 878. Likewise, if a
course-of-law, and open-courts challenges). Texas courts         claimant failed to serve a report, or served a report that
also uniformly rejected constitutional challenges to an          the trial court concluded did not represent a good faith
expert-report requirement under chapter 74’s predecessor         effort to comply with the statutory definition of expert
statute, article 4590i. See, e.g., Strom v. Memorial             report, the trial court was required to dismiss the case
Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex.App.-               with prejudice and award costs and attorney’s fees to the
Houston [1st Dist.] 2003, pet. denied) (rejecting due-           opposing party. See former art. 4590i, § 13.01(e), (l ),
process, equal-protection, and jury-trial challenges); Villa     (r)(6); see also Palacios, 46 S.W.3d at 877.
v. Hargrove, 110 S.W.3d 74, 81 (Tex.App.-San Antonio
2003, pet. denied) (rejecting due-process and equal-
protection challenges); Walker, 111 S.W.3d at 66
(rejecting due-process challenge); *897 Perry v. Stanley,        “Disparate treatment ”
                                                                 [8]
83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.)                The Heberts contend that chapter 74 irrationally singles
(rejecting open-courts challenge); Mocega v. Urquhart,           them out for disparate treatment in violation of their rights
79 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2002,            to due process and equal protection. The due-course-of-
pet. denied) (same); Gill v. Russo, 39 S.W.3d 717, 718–19        law guarantee of the Texas Constitution provides: “No
(Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same);         citizen of this State shall be deprived of liberty, property,
Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo            privileges or immunities, or in any manner
2000, pet. denied) (rejecting equal-protection, due-             disenfranchised, except by due course of the law of the
process, open-courts and free-speech challenges); Schorp         land.” Tex. Const. art. I, § 19. Similarly, the federal due-
v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736–38               *898 process clause provides: “No state shall make or
(Tex.App.-San Antonio 1999, no pet.) (rejecting due-             enforce any law which shall abridge the privileges or
process, open-courts, and jury-trial challenges).11              immunities of the citizens of the United States; nor shall
                                                                 any State deprive any person of life, liberty, or property,
The Heberts acknowledge the constitutional validity of           without due process of law;....” U.S. Const. amend. XIV,
the expert-requirement in chapter 74’s predecessor               § 1. While the Texas Constitution is textually different in
statute, article 4590i, but attempt to distinguish it as “less   that it refers to “due course” rather than “due process,”
draconian.” See Act of May 5, 1995, 74th Leg., R.S., ch.         Texas courts regard these terms as without substantive
140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985–88,           distinction unless and until a party demonstrates
repealed and recodified as amended by Act of June 2,             otherwise, and the Heberts suggest no reason to construe
2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003       them differently here. See University of Tex. Med. Sch. at
Tex. Gen. Laws 847, 875–77 (amended 2005) (current               Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (citing
version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351).            Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249,
They emphasize differences in the deadlines article 4590i        252–53 (1887)).
imposed for serving expert reports and the extent of
                                                                 [9] [10] [11] [12] [13]
discretion vested in trial courts to extend deadlines.                             Under federal and state guarantees of due
Specifically, article 4590i allowed claimants to either          process, legislation that does not affect a fundamental
serve an expert report within 90 days of filing suit or file a   right or interest is valid if it bears a rational relationship to
cost bond. See former art. 4590i, § 13.01(a). An expert          a legitimate state interest. Rylander v. B & A Mktg. Co. ex
report was required within 180 days of suit, though the          rel. Atl. Richfield Co., 997 S.W.2d 326, 333–34
court could grant a 30–day extension if the failure to serve     (Tex.App.-Austin 1999, no pet.) (citing Williamson v. Lee
was not intentional or the result of conscious indifference,     Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



(1955); Garcia, 893 S.W.2d at 525). Similarly, the               Accordingly, the expert-report requirement applies
constitutional guarantee of equal protection requires only       equally to all physicians and health care providers and
that disparate treatment of different classifications be         rationally relates to the interests of the State “in ensuring
rationally related to a legitimate state purpose, unless the     that medical practitioners were not ‘being placed in the
classification impinges on the exercise of a fundamental         situation of defending frivolous claims at a high cost’ to
right or distinguishes between people on a “suspect”             the health care system.” Id. (quoting Schorp, 5 S.W.3d at
basis, such as race or national origin.12 The Heberts have       737). Recently, the Dallas Court of Appeals adopted the
not demonstrated that chapter 74 impinges on a                   Smalling analysis and applied it to chapter 74. See
fundamental or important right or a suspect class. By its        Hightower, 348 S.W.3d at 521.
terms, chapter 74 is facially neutral and applies to any
party asserting a health care liability claim. Consequently,     While Smalling and Hightower dealt with special-law
in addressing the Heberts’ due-process and equal-                challenges, we previously rejected an equal-protection
protection claims, we must determine whether chapter 74          challenge to chapter 74’s predecessor for similar reasons.
bears a rational relationship to a legitimate state interest     Fields v. Metroplex Hosp. Found., No. 03–04–00516–CV,
and whether the Legislature had a rational basis in              2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006,
differentiating between health care liability claimants and      no pet.) (mem. op.) (“[T]he legislature determined that
other litigants. “In so doing, we must uphold the law if we      medical liability plaintiffs should be treated differently
can conceive of any rational basis for the Legislature’s         because of the negative effects of the numbers and cost of
action.” Owens Corning v. Carter, 997 S.W.2d 560, 581            their lawsuits had on the provision of health care.”). In
(Tex.1999).                                                      that case, the claimant failed to show article 4590i’s
                                                                 expert-report requirement was not rationally or
In enacting chapter 74, the Legislature made a number of         substantially related to the government’s interest in
findings about the state of the health care system in            reducing the aggregate costs of defending against
Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §      frivolous costs and reducing the costs of insurance and
10.11, 2003 Tex. Gen. Laws 847, 884–85. Specifically, it         medical care to all. Id.; see also Bogar, 257 S.W.3d at
found the frequency of claims and the amounts paid out           373 (in addressing due-process challenge to chapter 74:
by insurers in judgments and settlements had risen               “We disagree that it is irrational, in light of the
inordinately since 1995, which created a public problem          legislature’s goal of curtailing frivolous health care
in the availability and affordability of adequate medical        liability claims, for it to require that appellees serve an
professional liability insurance. Id. § 10.11(a)(1), (3), (4).   expert report explaining why or how this outcome was
This “crisis” increased costs to physicians, hospitals,          actually caused by the conduct of [the defendant], as
patients, and the public. Id. § 10.11(a)(5), (7). As a result,   opposed to some other person or health care provider.”).
the Legislature concluded the “adoption of certain
modifications in the medical, insurance and legal                The Heberts challenge the Legislature’s rationale as “pre-
systems” would “have a positive effect on the rates              textual, not supported by empirical data and refuted by
charged by insurers for medical professional liability           surveys showing there aren’t excessive frivolous medical
insurance.” Id. § 10.11(a)(12). In enacting various              malpractice suits.” They reason that because the
measures, including chapter 74, the Legislature intended         Legislature had previously acted to curb frivolous medical
to reduce the frequency and severity of health care              malpractice claims by enacting article 4590i, its
liability claims, decrease costs of claims, and ensure *899      subsequent enactment of chapter 74 reflects intent to
that awards were rationally related to costs, but “do so in      “single out medical malpractice claimants for special and
a manner that will not unduly restrict a claimant’s rights       harsh treatment by making it so onerous to file and
any more than necessary to deal with the crisis.” Id. §          prosecute [a claim] that they or their counsel will not take
10.11(b)(1), (2), (3).                                           the case, or once it is filed, to make it so difficult to
                                                                 prosecute the case that they or their counsel will just give
In Smalling v. Gardner, the Fourteenth Court of Appeals          up.” The Heberts likewise complain that chapter 74 strips
recognized that the “legislature has broad authority to          them “of all the rights accorded to other litigants in the
create classifications for legislative purposes, so long as      Texas Rules of Civil Procedure,” but does not place
they have a reasonable basis and operate equally on all          similar restrictions on “major corporations like insurance
persons within the class.” 203 S.W.3d 354, 371                   companies and banks suing for breach of contract, or on
(Tex.App.-Houston [14th Dist.] 2005, pet. denied)                individual or corporate clients suing attorneys, *900
(addressing special-law challenge to constitutionality of        accountants, bankers and brokers.” According to the
article 4590i).13 The expert report is required only for         Heberts, no compelling state interest or rational basis
claims against healthcare providers for departures from          supports this “arbitrary” classification.
accepted standards of medical or health care or safety. Id.

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)


[14] [15]
        We find no merit in the Heberts’ argument that the      serving the expert report does not restrict the trial court’s
Legislature, evaluating the impact of 4590i, could not          power to hear evidence, determine the facts of a case and
have rationally concluded that a problem had nonetheless        the rights of the parties, apply the law to the facts and to
persisted in the cost and availability of health care due to    enter a judgment appropriate to the case, any more than a
the prevalence of medical-malpractice suits. To the extent      statute of limitations does.”). The same is true of chapter
the Heberts challenge the underlying policies of chapter        74’s requirement that courts award attorney’s fees upon
74, it is not our place to question the Legislature’s policy    dismissal. Hightower, 348 S.W.3d at 522 (rejecting
decisions when conducting a rational basis review. See          separation-of-powers challenge based on attorneys’ fees
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 264            provision because “court still retains its constitutional
(Tex.2002) (“The restriction clearly serves [the act’s]         authority to determine the reasonable fees based on the
purposes, and it is not for us to second-guess the              law and the evidence presented by the parties”). The
Legislature’s policy choices.”). The Heberts fail to            Heberts offer no persuasive authority to the contrary.
demonstrate that the Legislature lacked any rational basis      Accordingly, we reject the *901 Heberts’ separation-of-
in differentiating between health care liability claimants      powers constitutional challenge.
and other litigants. Accordingly, we reject the Heberts’
“disparate treatment” constitutional challenges.

                                                                Right of access
                                                                [18] [19] [20] [21]
                                                                                  Finally, the Heberts argue chapter 74
Separation of powers                                            violates their right of access to the courts and due course
[16] [17]
           For similar reasons, the Heberts’ other              of law. The open-courts provision of the Texas
constitutional challenges fail. They claim the Legislature      Constitution guarantees litigants the right to redress their
has impermissibly interfered with the judicial branch           grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon,
through chapter 74. The Texas Constitution vests the            713 S.W.2d 335, 341 (Tex.1986). It protects a person
judicial power of the State in the courts. Tex. Const. art.     from having his or her right to sue cut off by a legislative
V, § 1. The separation-of-powers requirement prohibits          act before the individual has been afforded a reasonable
one branch of government from exercising a power                opportunity to discover the wrong and bring suit. Shah v.
inherently belonging to another branch. Id. art. II, § 1;       Moss, 67 S.W.3d 836, 842 (Tex.2001). It is premised on
Wilson–Everett, 242 S.W.3d at 802 (citing General Servs.        the rationale that the Legislature has no power to make a
Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 600         remedy by due course of law contingent upon an
(Tex.2001)). Only when the executive or legislative             impossible condition. Hightower, 348 S.W.3d at 522
branch interferes with the functioning of the judicial          (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,
process in a field constitutionally committed to the control    355 (Tex.1990)); see also Stockton, 336 S.W.3d at 618
of the courts does a constitutional problem arise. Wilson–      (rejecting open-courts challenge based on chapter 74’s
Everett, 242 S.W.3d at 802.                                     120–day deadline). To prove that the statute violates the
                                                                open-courts provision, the Heberts must show that: (1) a
Chapter 74’s expert report imposes a threshold procedural       cognizable common law cause of action is being
requirement aimed at filtering out meritless or premature       restricted, and (2) the restriction is unreasonable or
lawsuits from proceeding until a claimant makes a good-         arbitrary when balanced with the statute’s purpose and
faith effort to demonstrate that at least one expert believes   basis. Sax, 648 S.W.2d at 666.
that a breach of the applicable standard of care caused the
                                                                [22]
claimed injury. Id. at 802–04 (rejecting argument that               A claimant bringing an as-applied open-courts
chapter 74 “interefere[d] with the judiciary’s                  challenge to chapter 74 must show that the expert-report
constitutional power to decide when and how to render           requirements actually prevented him from bringing his
judgments” (citing Murphy v. Russell, 167 S.W.3d 835,           claims. Herrera, 212 S.W.3d at 461; McGlothlin v.
838 (Tex.2005) (per curiam); Walker, 111 S.W.3d at 66).         Cullington, 989 S.W.2d 449, 453 (Tex.App.-Austin 1999,
Though the Heberts contend chapter 74 “prohibits the            pet. denied). The Heberts failed to prove how the
courts from using the rules of procedure and directs the        provisions of chapter 74, as opposed to their own failure
courts in every respect,” in actuality, the courts retain the   to provide an adequate report, prevented them from
judicial power to determine whether a timely served             pursuing their claims. See Ledesma, 2007 WL 2214650,
report is adequate in this regard and to render a decision      at *9 (rejecting open-courts challenge when plaintiff
accordingly. See Tex. Civ. Prac. & Rem.Code Ann. §              failed to serve sufficient reports); see also Stockton, 336
74.351(l ), (r)(6); see also Carrick v. Summers, 294            S.W.3d at 618–19 (rejecting as-applied open-courts
S.W.3d 886, 891 (Tex.App.-Beaumont 2009, no pet.)               challenge when plaintiff failed to exercise due diligence
(“[I]mposing a strict, non-discretionary time limit on          in serving expert report on defendant physician).

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



                                                               and Jelinek v. Casas, 328 S.W.3d 526 (Tex.2010).
[23] [24]
        As discussed above, the Heberts have also failed to    Together, those three cases describe and clarify the
show chapter 74 is unreasonable or arbitrary when              standards by which courts are to evaluate an expert report.
balanced with the statute’s purpose and basis. Health care     Because those standards are appropriately set forth in the
liability claims require expert testimony at trial. See        majority opinion, I will not repeat them all. But it is
Smalling, 203 S.W.3d at 371. The expert-report                 crucial to remember that all that is necessary to avoid
requirement “ ‘does not violate the open-courts provision      dismissal is that the report represent a “good faith effort”
by requiring an expert report sooner rather than later in      to comply with the statutory definition of an expert report,
the litigation.’ ” Id. (addressing article 4590i (quoting      which in turn requires only that the report provide “a fair
Mocega, 79 S.W.3d at 64)); see also Gill, 39 S.W.3d at         summary of the expert’s opinions” regarding standard of
718–19 (article 4590i expert-report requirement did not        care, breach, and causation. Most important, the supreme
violate open-courts provision because plaintiff raising        court has defined “good faith effort” as “one that provides
medical negligence claim required to prove claim by            information sufficient to (1) ‘inform the defendant of the
competent expert testimony to avoid summary judgment           specific conduct the plaintiff has called into question,’
and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d       and (2) ‘provide a basis for the trial court to conclude that
464, 466 (Tex.App.-Waco 2010, pet. denied) (“This Court        the claims have merit.’ ” Jelinek, 328 S.W.3d at 539
and others have determined that the expert-report              (quoting Wright, 79 S.W.3d at 52). I believe the report in
requirement itself does not violate the open-courts            the present case easily meets that test.
guarantee because it ‘is rationally related to the purpose
of the statute to discourage frivolous malpractice suits.’ ”   The first prong of the good-faith test is that the report
(quoting Powell v. Clements, 220 S.W.3d 138, 140               must “inform the defendant of the specific conduct the
(Tex.App.-Waco 2007, pet. denied))); Fields, 2006 WL           plaintiff has called into question.” In this regard, the
2089171, at *4 (holding report requirement not so              expert report in this case could not be clearer: the standard
onerous that it “effectively deprived the litigant of access   of care requires that a spinal fracture complicated by pre-
to the court”).14                                              existing ankylosing spondylitis must be treated by
                                                               posterior internal fixation, either alone or in combination
*902 [25] [26] The Heberts have failed to demonstrate a        with anterior internal fixation, not by anterior fixation
constitutional defect in chapter 74’s expert-report            alone, as was done by the defendant physician here. By
requirement.15 Accordingly, we overrule their second           my count, the medical expert’s report contains no less
issue.16                                                       than nine separate statements and/or explanations of this
                                                               requirement, four in his original report and five more in
                                                               his supplemental report.

                                                                    • “Anterior instrumentation only is predictably
                     CONCLUSION                                     inadequate in a fracture pattern with gross anterior
                                                                    and posterior column instability such as Mr.
Having overruled the Heberts’ issues on appeal, we affirm           Hebert’s. Adequate treatment of Mr. Herbert’s
the district court’s judgment.                                      fracture   requires     anterior   and     posterior
                                                                    instrumentation in order to meet the standard of
                                                                    care.”

                                                                    • “Dr. Timothy Hopkins’ choice of anterior only
*903 Jones, C.J., dissent.
                                                                    plate/screw fixation fails to meet the applicable
                                                                    standard of care.”
J. WOODFIN JONES, Chief Justice, dissenting.
                                                                    • “In the absence of adequate posterior stability,
Because I believe the expert report in this case represents         anterior plate/screw constructs typically fail in
a good-faith effort to comply with the statutory definition         flexion by plate breakage or, as in this case, by screw
of an expert report, I respectfully dissent.                        pullout.... Anterior only plate/screw fixation, in this
                                                                    setting, is predictably doomed to failure.”
The three significant Texas Supreme Court opinions that
                                                                    • “The standard of care for the surgical treatment of
address the issue of determining the adequacy of an
                                                                    this fracture requires a multilevel posterior fixation
expert report are American Transitional Care Centers of
                                                                    and a fusion in conjunction with anterior fixation and
Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001); Bowie
Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002);

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



     fusion with or without supplemental external                          performing a multilevel posterior
     fixation....”                                                         instrumented       fusion       caused
                                                                           permanent and irreversible spinal
     • “Dr. Hopkins performed an anterior (front) only                     cord injury when the screw
     plate and screw fixation.... The standards of care                    predictably pulled out in the post
     governing a prudent surgeon require that he not                       perioperative period.... When the
     perform anterior only fixation with plate and                         screw pulled out of the vertebral
     screws....”                                                           segments of C–6 and C–7, the C–5
                                                                           vertebral body was allowed to
     • “The standards of care governing a prudent surgeon                  move on C–6 resulting in cord
     require that he perform a multilevel posterior                        compression.         The         screw
     instrumented fusion alone or in conjunction with an                   predictably failed because the
     anterior instrumented fusion....”                                     anterior only approach was
                                                                           insufficient in the absence of
     *904 • “My opinion is that Dr. Hopkins breached the                   inherent or surgically created
     standard of care by performing a multi-level anterior                 posterior element stability, to
     only fusion and fixation with plate/screws without                    stabilize the fracture and resist
     also performing a multi-level posterior fusion and                    deformation due to flexion forces.
     fixation with instrumentation.”                                       When the screws failed, the
                                                                           vertebral segments moved resulting
     • “The factual basis for this opinion is that a prudent
                                                                           in cord compression. As a result,
     surgeon following the standards of care would not
                                                                           Mr. Hebert is now a quadraparetic,
     have performed an anterior only fusion with
                                                                           meaning he is nearly completely
     instrumentation to attempt to stabilize this very
                                                                           paralyzed from the chest down. If,
     unstable fracture but would have performed an
                                                                           instead of the anterior only surgery,
     anterior instrumented fusion with plates/screws and a
                                                                           Dr. Hopkins had performed an
     multilevel posterior instrumented fusion or a
                                                                           anterior and posterior instrumented
     multilevel posterior instrumented fusion alone.”
                                                                           fusion, like Dr. Duarte did on
     • “[P]erforming an anterior only fusion with                          9/12/08, it is highly probable the
     instrumentation without also performing the                           anterior implants would not have
     posterior fusion and fixation was a breach of the                     failed as they did, the resulting cord
     standard of care because the standards of care require                compression would have been
     performing both procedures to adequately stabilize                    avoided and Mr. Hebert would not
     the very unstable fracture and anterior only surgery                  have sustained his spinal cord
     was doomed to fail....”                                               injury and paralysis.

There can be no doubt what conduct is being called into        In the face of the expert report’s highly detailed
question.                                                      explanation of all of the elements required by Palacios,
                                                               Wright, and Jelinek, the majority holds that a single
The second prong of the supreme court’s good-faith             sentence from the original report was so “internally
definition is that the report must “provide a basis for the    inconsistent” as to the applicable standard of care that all
trial court to conclude that the claims have merit.” Here,     of the report’s detailed explanations and opinions were
the expert report goes into great detail in explaining the     vitiated:
standard of care, why the actions of the defendant
physician constituted a breach of the standard, and “how                   If the clinical situation in which the
and why the breach caused the injury based on the facts                    surgeon finds himself and the
presented.” Jelinek, 328 S.W.3d at 539–40. The report                      patient allows only inadequate
does not contain mere conclusions of the expert. Quite the                 internal fixation, the surgeon is
contrary. As to causation, for example, the report explains                obligated to protect the patient
at length the process by which the breach of the standard                  supplementing the internal fixation
of care resulted in the plaintiff’s paralysis:                             *905 with external bracing and/or
                                                                           activity limitations.
            My opinion is that performing an
            anterior   only    fusion   with                   There are several things to note about this sentence. First,
            instrumentation   without    also                  it does not say that anterior only internal fixation could
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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



ever meet the standard of care in treating a patient with                    during discovery and possibly trial, not as part of a
the conditions existing here. Indeed, the sentence does not                  gatekeeper effort to deter frivolous lawsuits. This is
explicitly reference anterior internal fixation at all. It is                especially true in light of the fact that the medical records
simply a general reference to a hypothetical situation in                    available to the expert in preparing his report may not
which “inadequate internal fixation” is, temporarily, the                    have reflected whether any such extraordinary
only available option under some presumably                                  circumstances existed at the time of the surgery.1 To
extraordinary circumstances. Second, whatever the                            require a report to negate possible defenses at this stage of
general references to “clinical situation” and “inadequate                   the litigation creates an extra-statutory burden and is
internal fixation” mean, the report goes on to specify that                  unfair to both the plaintiff and the medical expert.
the defendant breached the standard of care in this case,
as to this patient. This is an implicit statement that, to the               I believe the expert report in this case constituted a good-
best of the expert’s knowledge, there were no                                faith effort to comply with the definition of an expert
extraordinary circumstances in this case. Third, and                         report, as required by the applicable statutes and supreme
perhaps most important, the possible existence of                            court precedent. Accordingly, I respectfully dissent.
extraordinary circumstances that might—or might not—
justify the defendant physician’s temporary use of
anterior only internal fixation is a matter to be fleshed out

Footnotes
1      The parties have advised us that Richard Hebert died shortly after the Heberts perfected their appeal. As contemplated by rule
       7.1 of the rules of appellate procedure, the parties have proceeded on appeal as if all parties are alive, and so have we. See
       Tex.R.App. P. 7.1(a)(1).
2      See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011) (“In a health care liability claim, a claimant shall, not later than
       the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports,
       with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability
       claim is asserted.”).
          In the absence of material intervening substantive changes, we have cited the current version of chapter 74 for convenience.
3      See id. (“Each 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.”).
4      See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report has not been served within the
       period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall ... enter an
       order that: (1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by
       the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with
       prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that “an expert report has not been served within
       the period specified by Subsection (a)” when “elements of the report are found deficient”).
5      See id. § 74.351(c).

6      See id. § 74.351(b), (c).

7      See id. § 74.351(b)(1).

8      See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications of the “expert” who may prepare an
       “expert report,” see id. § 74.351(r)(5), but appellees have not disputed that White meets those standards here.
9      Id. § 74.351(l ).

10     The Heberts acknowledge that Richard’s death during the pendency of this appeal may have terminated his open-courts claim.
       “[W]rongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to
       bring either.’ ” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex.2000) (quoting Bala v. Maxwell, 909 S.W.2d
       889, 893 (Tex.1995)). The Texas Supreme Court also has declined to rule on an open-courts argument in a similar situation
       when the claimant died during the pendency of the appeal. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (per curiam).

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Hebert v. Hopkins, 395 S.W.3d 884 (2013)



      While we have similar reservations, we will address the Heberts’ open-courts argument to the extent its substance implicates
      due-process and due-course-of-law protections they have also raised. See, e.g., Bogar v. Esparza, 257 S.W.3d 354, 370 n. 6
      (Tex.App.-Austin 2008, no pet.) (noting open-court protections not directly implicated in statutory wrongful-death and survivor
      action before conducting similar due-process analysis).
11    In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that they involved “a complete failure to
      file an expert report,” instead of “addressing the legislature’s restriction placed on the courts in deciding the issue” of a report’s
      sufficiency. However, Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert
      report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520 (Tex. App.-Dallas
      2011, pet. denied) (upholding dismissal of deficient reports); Ledesma v. Shashoua, No. 03–05–00454–CV, 2007 WL 2214650,
      at *7–8 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (same).
12    Classifications that impinge upon the exercise of a fundamental right or distinguish between people on a suspect basis (i.e., race,
      national origin, and alienage) “are subject[ ] to strict scrutiny and will be sustained only if they are suitably tailored to serve a
      compelling state interest.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313
      (1985) (plurality opinion). When a statute burdens a sensitive class or impinges on an important right, the statute is subject to an
      intermediate level of scrutiny, which requires a showing that the statute is substantially related to an important state interest. Id.
      at 440–41, 105 S.Ct. 3249.
13    Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law prohibited by the Texas
      Constitution, many of their complaints track arguments raised by parties who have raised such claims. Accordingly, we find
      cases addressing special-law challenges instructive.
14    The Heberts also argue that chapter 74 “effectively revives the general demurrer practice which permitted judges to dismiss
      cases on the pleadings.” They argue that summary judgment is the preferred method for defendants to obtain a dismissal on the
      merits. Our rules of procedure prohibit the use of general demurrers. Tex.R. Civ. P. 90. However, “[w]hen a rule of procedure
      conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute....”
      Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000) (per curiam). The current version of chapter 74 was passed in 2003 and
      amended in 2005; rule 90 was approved in 1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict,
      chapter 74 controls. See Mitchell v. Berry, No. 05–06–01328–CV, 2007 WL 4111923, at *4 (Tex.App.-Dallas Nov. 20, 2007,
      pet. denied) (mem. op.) (rejecting argument Tex. Civ. Prac. & Rem.Code Ann. § 13.001 allowing for dismissal in inability-to-
      pay cases was a general demurrer in contravention of Rule 90); see also Smalling v. Gardner, 203 S.W.3d 354, 367 n. 8
      (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure
      to serve expert report).
15    The Heberts make passing reference to infringement of their right to trial by jury, but provide no authority or argument in
      support of any challenge based on that provision that is distinct from their other arguments. To the extent the Heberts intended
      to advance a distinct challenge based on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right
      in civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 738 (Tex.App.-San
      Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344, 346 (Tex.Civ.App.-Dallas
      1968, no writ)). “Imposing the requirement to file an expert report and the failure to meet that requirement allows the trial court
      to dismiss the case. This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural
      requirement which is directly related to the statute’s purpose of limiting the number of frivolous suits.” Id. (addressing article
      4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 149 (Tex.1982) (holding that failure of plaintiff to fulfill
      bonding requirement for challenging school board election did not deny taxpayer right to jury trial on merits))).
16    The Heberts point to decisions from other jurisdictions that, in their view, struck down expert-report requirements similar to
      chapter 74 based on constitutional provisions analogous to the protections on which they rely here. See, e.g., Putman v.
      Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 216 P.3d 374, 378–79 (2009) (law requiring certificate of merit from expert at
      time of filing violated separation of powers and right of access as it cut off rights of discovery and abrogated pleading
      requirements in rules of procedure); Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (law requiring certificate of merit violated
      separation of powers); Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415, 421 (2007) (law requiring expert affidavit
      within 30 days of suit violated separation of powers); Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla.2006) (law requiring
      affidavit of merit with petition barred right of access). They also acknowledge that courts in at least two jurisdictions upheld
      laws similar to chapter 74. See McAlister v. Schick, 147 Ill.2d 84, 167 Ill.Dec. 1021, 588 N.E.2d 1151, 1157–58 (1992);
      Mahoney v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512–13 (Mo.1991). Additionally, they favorably cite cases from
      other jurisdictions that upheld similar laws “so long as the Legislature [does] not direct[ ] the Courts how to decide the
      legitimacy of the case.” Texas decisions regarding chapter 74 are consistent with that reasoning. See, e.g., Wilson–Everett v.
      Christus St. Joseph, 242 S.W.3d 799, 803 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74
      “interfere[d] with the judiciary’s constitutional power to decide when and how to render judgments”). In any event, cases from
      other jurisdictions have no precedential value for this Court. Instead, we are bound to follow the Supreme Court of Texas and

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         13
Hebert v. Hopkins, 395 S.W.3d 884 (2013)



      our own precedent, as well as the persuasive cases of our sister courts. Texas authorities have consistently rejected
      constitutional challenges similar to those advanced by the Heberts.
1     Medical issues, like legal ones, are seldom black and white. One can imagine a hypothetical conversation between a plaintiff’s
      attorney and the plaintiff’s medical expert, in which the expert says something like, “In the overwhelming majority of cases like
      this, the standard of care is X. But I have to be candid: in a very small percentage of such cases, extraordinary circumstances
      may call for a different treatment approach. Nothing in the medical records I have seen indicates that such extraordinary
      circumstances existed in this case, but I would not be completely honest if I did not at least mention that possibility.”




End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    14
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272


                                                              *529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez,
                                                              L.L.P., McAllen, for Michael T. Jelinek, M.D.
                     328 S.W.3d 526
                 Supreme Court of Texas.
                                                              John N. Mastin, San Antonio, Francisco J. Rodriguez,
       Michael T. JELINEK, M.D. and Columbia Rio              Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco
        Grande Healthcare, L.P. d/b/a Rio Grande              Casas.
              Regional Hospital, Petitioners,
                                                              Mike A. Hatchell, Sarah B. Duncan, Elissa Gail
                            v.
                                                              Underwood, Locke Lord Bissell & Liddell, LLP, Austin,
       Francisco CASAS and Alfredo DeLeon, Jr., as
                                                              Raul Javier Guerra, Green, DuBois & Guerra, San
      Personal Representatives of the Estate of Eloisa
                                                              Antonio, Susan A. Kidwell, Locke Lord Bissell &
              Casas, Deceased, Respondents.
                                                              Liddell, LLP, Austin, for Columbia Rio Grande
No. 08–1066. | Argued Feb. 18, 2010. | Decided Dec.           Healthcare, L.P.
                    3, 2010.
                                                              Opinion

Synopsis                                                      Justice GUZMAN delivered the opinion of the Court, in
Background: Patient’s surviving family members                which Justice HECHT, Justice WAINWRIGHT, Justice
brought medical malpractice action against hospital and       MEDINA, Justice JOHNSON, and Justice WILLETT
physician, arising out of treatment of patient at hospital.   joined, and in which Chief Justice JEFFERSON, Justice
Following non-suiting of physician, and following jury        GREEN, and Justice LEHRMANN joined as to Parts I
trial, the 275th District Court, Hidalgo County, Juan R.      and II.A.
Partida, J., entered judgment for family members.
Hospital and physician appealed. The Corpus Christi
                                                              When circumstantial evidence is consistent with several
Court of Appeals, 2008 WL 2894889, affirmed. Hospital
                                                              possible medical conclusions, only one of which
and physician petitioned for review.
                                                              establishes that the defendant’s negligence caused the
                                                              plaintiff’s injury, an expert witness must explain why,
                                                              based on the particular facts of the case, that conclusion is
Holdings: The Supreme Court, Guzman, J., held that:           medically superior to the others. If the expert fails to give
                                                              any reason beyond an unsupported opinion, the expert’s
[1]                                                           testimony is legally insufficient evidence of causation. In
  lay testimony of family members did not present some
evidence in support of finding that hospital’s alleged        this case, we determine whether legally sufficient
negligence caused patient’s additional pain and suffering;    evidence supports the jury’s verdict in favor of the estate
                                                              of Eloisa Casas1 against Rio Grande Regional Hospital
[2]                                                           (the Hospital).2 Following her admission to the Hospital
   expert testimony did not present some evidence in
support of finding that hospital’s alleged negligence         with abdominal pain, doctors placed Casas on antibiotics
caused patient’s additional pain and suffering; and           used to treat and prevent certain intra-abdominal
                                                              infections. Two days later she underwent major
[3]                                                           abdominal surgery and continued on the antibiotics for
  expert report was conclusory with regard to causation
and, thus, was deficient.                                     another five days, but the Hospital allowed the
                                                              prescriptions to lapse for four-and-a-half days. The
                                                              Hospital admits it should have continued the antibiotics
Reversed and rendered in part; reversed and remanded in       but denies that the lapse caused Casas any additional pain.
part.                                                         We hold that the Casases failed to present legally
                                                              sufficient evidence that Casas suffered from an infection
Jefferson, C.J., dissented in part, and filed opinion in      the omitted antibiotics would have treated. Accordingly,
which Green and Lehrmann, JJ., joined.                        we reverse the court of appeals’ judgment and render
                                                              judgment that the Casases take nothing.3
Lehrmann, J., filed opinion dissenting in part.
                                                              In a separate petition, Dr. Michael Jelinek, one of Casas’s
                                                              treating physicians sued by the Casases, argues that the
Attorneys and Law Firms                                       trial court should have granted his motion for sanctions
                                                              and dismissal because the Casases’ expert report was
                                                              deficient. We agree and hold that an award of attorney’s
                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 1
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

fees is proper. Therefore, we reverse and remand to the        on July 23, he informed Casas and then prescribed
trial court for an award of attorney’s fees and costs.         different antibiotics, Levaquin and Vancomycin. On July
                                                               25, after a CAT scan showed no abscess, Dr. Garcia–
                                                               Cantu removed the drain. Casas left the Hospital on
                                                               August 23, but she returned in early September and died
                                                               two months later.
                   *530 I. Background
                                                               In May 2003, several members of Casas’s family,
In 2000, Eloisa Casas was diagnosed with colon cancer          including her husband and son, filed suit against the
and underwent surgery, radiation, and chemotherapy. A          Hospital, Dr. Garcia–Cantu, and Dr. Jelinek. The
year later, doctors told her that the cancer appeared to be    plaintiffs claimed that the defendants’ negligence caused
in remission, and she thought she was cured. But on July       Eloisa Casas to “suffer grievous embarrassment and
10, 2001, she was admitted to the Hospital with                humiliation, as well as excruciating pain the remainder of
abdominal pains; she also had a fever and a mildly             her life which she would not have suffered to such degree
elevated white-blood-cell count, potentially indicating an     or extent if properly diagnosed, treated and cared for.”
infection. To treat this possible infection, her surgeon and   The plaintiffs sought to recover damages for Casas’s
primary physician, Dr. Carlos Garcia–Cantu, consulted          injuries and mental anguish. They twice amended their
with an infectious disease specialist at the Hospital, Dr.     petition, ultimately leaving the Casases as the sole
Michael Jelinek, who on July 11 prescribed two                 plaintiffs.
medications, Maxipime (a broad-spectrum antibiotic), and
Flagyl (an antibiotic used to treat anaerobic bacteria).       *531 As required by former article 4590i § 13.01 of the
                                                               Medical Liability and Insurance Improvement Act, see
The Hospital performed several diagnostic tests, which         TEX.REV.CIV. STAT. art. 4590i § 13.01,5 the Casases
revealed abnormal collections of fluid in Casas’s              filed an expert report within 180 days of filing the original
abdomen. On July 13, she underwent major abdominal             petition. In the report, Dr. John Daller opined that Dr.
surgery during which Dr. Garcia–Cantu discovered that          Garcia–Cantu and Dr. Jelinek were negligent in failing to
“fairly extensive” metastatic cancer had perforated            discover that the antibiotics were not being given to Casas
Casas’s colon and allowed material to leak into her            and that within “reasonable medical probability” this
abdominal cavity, causing an intra-abdominal abscess. Dr.      negligence resulted in a prolonged hospital stay and
Garcia–Cantu drained the abscess, repaired Casas’s colon,      increased pain and suffering. Dr. Jelinek later filed a
and inserted a Jackson–Pratt drain to prevent further          motion for sanctions and dismissal under article 4590i §
problems. Following the surgery, Dr. Garcia–Cantu              13.01(e), alleging that the expert report was deficient
continued the Maxipime and Flagyl prescriptions, and a         because, among other things, it failed to explain any
culture of the removed abscess revealed an E. coli             causal connection between the negligence and the
infection, which is effectively treated with Maxipime.         purported injury. The trial court denied the motion.
Casas received Maxipime and Flagyl for another five            Before trial began, however, the Casases nonsuited Dr.
days, but hospital staff inadvertently failed to place a       Jelinek and Dr. Garcia–Cantu.
prescription renewal form on Casas’s chart, resulting in a
four-and-a-half-day period between July 18 and 23 during       At trial, Dr. Daller testified as the Casases’ medical
which Casas did not receive either medication. Even so,        expert. During direct examination, he analyzed the
Casas never tested positive for E. coli again and a culture    Hospital’s daily patient notes regarding Casas and
of the incision site on July 18 instead grew Candida (a        identified the significant events. He noted changes in
fungus) for which Diflucan (an antifungal) was                 Casas’s vital signs on July 21 and 22, such as increased
prescribed. Then, on July 21, a second culture from a          heart rate and temperature, inflammation, and tenderness
blood sample grew coagulase-negative staph, for which          of the surgery site. Dr. Daller stated that “in medical
Vancomycin was prescribed.4 Neither Maxipime nor               probability” there was an infection in the abdomen, but on
Flagyl would have treated the Candida or coagulase-            cross-examination he admitted that “there was no
negative staph infection.                                      objective evidence present to demonstrate that intra-
                                                               abdominal infection.” When reviewing the patient notes
On July 23, Dr. Garcia–Cantu noted an abscess in the           for July 24, which noted the presence of a foul smell, he
wound, which he drained by removing the staples and            suggested that the smell was consistent with an anaerobic
opening the wound. The next day, records indicate that a       infection that would be difficult to culture because
foul smell was emanating from the wound site, and              anaerobic bacteria die when exposed to air. Dr. Carl
hospital staff brought fans into the room to dissipate the     Berkowitz, the Hospital’s expert, offered several other
odor. When Dr. Jelinek learned of the lapsed prescription

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

explanations for the smell, such as the Candida infection       A. Sufficiency of the Evidence
                                                                [1]
or dying tissue.                                                    The facts of this case are unfortunate: a woman with
                                                                advanced colon cancer underwent surgery to repair her
The Casases also called Casas’s relatives to testify about      cancer-perforated and infected colon, and in the course of
her condition. Consistent with Dr. Daller’s testimony,          treatment for her many symptoms the Hospital failed to
Casas’s son linked the smell with the opening of the            renew her antibiotic prescriptions for a four-and-a-half-
wound to drain the abscess: “The odor that I noticed was        day period. The Hospital admits it should have continued
after they had taken out the staples on her incision, and       the antibiotics. Even so, the plaintiff bears the burden to
one day that I went to see her as soon as they opened the       prove that the negligence caused an injury: “[A]t trial the
door the whiff of this putrid smell just engulfed me.” He       plaintiff must establish two causal nexuses in order to be
also testified that Casas was upset upon learning that she      entitled to recovery: (a) a causal nexus between the
had not received the antibiotics but was even more upset        defendant’s conduct and the event sued upon; and (b) a
when the incision had to be opened and drained: “Well,          causal nexus between the event sued upon and the
after she was told and I was told that she wasn’t getting       plaintiff’s injuries.” Morgan v. Compugraphic Corp., 675
antibiotics, like I said, she was upset. What really upset      S.W.2d 729, 731 (Tex.1984). Only the second nexus is at
her more was when they had to—they had to take out the          issue here.
staples out of her incision, and they had to open her
                                                                [2] [3] [4]
incision up again.” Casas’s husband testified that, while                  In City of Keller v. Wilson, we considered at
she was upset and did not trust the nurses or doctors after     length the parameters of legal sufficiency review, quoting
learning of the lapsed prescription, “she was still fighting.   with approval Chief Justice Calvert’s seminal article on
She ... wanted to beat this cancer she had.” The son            the topic:
testified that Casas did not lose hope until she witnessed
the events of September 11, 2001, following her re-                           “No evidence” points must, and
admission to the Hospital: “That’s why I remember that                        may only, be sustained when the
day so vividly in my mind because that was the turning                        record discloses one of the
point in my mom. She seemed to just give up, not fight,                       following situations: (a) a complete
not want to fight anymore like she used to. And that was a                    absence of evidence of a vital fact;
very, very sad day.”                                                          (b) the court is barred by rules of
                                                                              law or of evidence from giving
*532 The jury found that the negligence of the Hospital,                      weight to the only evidence offered
Dr. Jelinek, and Dr. Garcia–Cantu proximately caused                          to prove a vital fact; (c) the
Casas’s injury. The jury apportioned ninety percent of the                    evidence offered to prove a vital
negligence to the Hospital, five percent to Dr. Jelinek, and                  fact is no more than a mere
five percent to Dr. Garcia–Cantu. It awarded $250,000 in                      scintilla;   (d)     the    evidence
damages to the Casases as compensation for Casas’s pain                       establishes     conclusively     the
and mental anguish.                                                           opposite of the vital fact.

The Hospital appealed, arguing that the evidence was            168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W.
legally and factually insufficient to prove causation or        Calvert, “No Evidence” and “Insufficient Evidence”
damages for mental anguish. Dr. Jelinek also appealed,          Points of Error, 38 TEX. L.REV. 361, 362–63 (1960)).
challenging the trial court’s denial of his motion for          “When the evidence offered to prove a vital fact is so
sanctions and dismissal. The court of appeals affirmed on       weak as to do no more than create a mere surmise or
all issues. ––– S.W.3d ––––.                                    suspicion of its existence, the evidence is no more than a
                                                                scintilla and, in legal effect, is no evidence.” Kindred v.
                                                                Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The same
                                                                is true when the evidence equally supports two
                                                                alternatives: “ ‘When the circumstances are equally
                          II. Analysis                          consistent with either of two facts, neither fact may be
                                                                inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting
We address in turn the two issues raised in this appeal: the    Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819
legal sufficiency of the causation evidence and the             S.W.2d 801, 805 (Tex.1991)). When considering such
sufficiency of the Casases’ expert report.                      cases, “we must ‘view each piece of circumstantial
                                                                evidence, not in isolation, but in light of all the known
                                                                circumstances,’ ” id. at 813–14 (quoting Lozano v.
                                                                Lozano, 52 S.W.3d 141, 167 (Tex.2001) (per curiam)),

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

and we “must consider not just favorable but all the            recognized treatment, unless he proves by a doctor of the
circumstantial evidence, and competing inferences as            same school of practice as the defendant: (1) that the
well.” Id. at 814.                                              diagnosis or treatment complained of was such as to
                                                                constitute negligence and (2) that it was a proximate
[5]
    To meet the legal sufficiency standard in medical           cause of the patient’s injuries.”). We have allowed lay
malpractice cases “plaintiffs are required to adduce            evidence to establish causation “in those cases in which
evidence of a *533 ‘reasonable medical probability’ or          general experience and common sense will enable a
‘reasonable probability’ that their injuries were caused by     layman to determine, with reasonable probability, the
the negligence of one or more defendants, meaning               causal relationship between the event and the condition.”
simply that it is ‘more likely than not’ that the ultimate      Morgan, 675 S.W.2d at 733 (citing Lenger v. Physician’s
harm or condition resulted from such negligence.”               Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care
Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–          must be taken to avoid the post hoc ergo propter hoc
400 (Tex.1993) (citations omitted). Thus, we examine the        fallacy, that is, finding an earlier event caused a later
record to determine if the Casases presented legally            event merely because it occurred first. Stated simply,
sufficient evidence that “in reasonable medical                 correlation does not necessarily imply causation. As we
probability” the Hospital’s negligence caused Casas             noted in Guevara, “[e]vidence of an event followed
additional pain and suffering.                                  closely by manifestation of or treatment for conditions
                                                                which did not appear before the event raises suspicion
When distilled to its essence, the Casases’ claim is            that the event at issue caused the conditions. But
predicated on the presence of an infection—treatable by         suspicion has not been and is not legally sufficient to
the lapsed antibiotics—that caused Casas pain and mental        support a finding of legal causation.” 247 S.W.3d at 668.
anguish above and beyond that caused by the cancer, the
                                                                [10]
surgery, and the other known infections. The absence of              When lay testimony is credited as evidence of
an infection treatable by Maxipime and Flagyl would             causation, it usually highlights a connection between two
undermine the Casases’ claim, for then the prescription         events that is apparent to a casual observer. In Morgan,
lapse would amount to an unfortunate, but harmless,             for example, a previously healthy employee, upon
occurrence. The Hospital argues that the Casases                exposure to leaking chemicals, suffered watering of the
presented no evidence that the Hospital’s negligence            eyes, blurred *534 vision, headaches, and swelling of the
caused such an infection. The Casases’ expert admitted          breathing passages. 675 S.W.2d at 733. In such a
there is no direct evidence of an anaerobic infection,          circumstance, lay testimony sufficed to connect the
leaving the jury to consider the circumstantial evidence        specific injury to the negligence with no evidence of
and make proper inferences from it. In reviewing the            causation beyond the leaking chemicals. Id. Likewise in
record, we initially decide if jurors can determine             Guevara, we stated that determining causation of “certain
causation under these facts unaided by expert testimony—        types of pain, bone fractures, and similar basic
that is, whether lay testimony regarding causation is           conditions” following an automobile accident was within
legally sufficient.                                             the competence of lay jurors. 247 S.W.3d at 668. But we
                                                                held that expert testimony was required to prove that a
                                                                patient’s medical expenses resulted from the accident,
                                                                noting that “[p]atients in hospitals are often treated for
                                                                more than one condition brought on by causes
                  1. Lay Testimony of Causation                 independent of each other.” Id. at 669. These cases
[6] [7] [8] [9]                                                 illustrate this basic premise: “[N]on-expert evidence alone
             Lay testimony may be used as evidence of           is sufficient to support a finding of causation in limited
causation in certain circumstances, but “[w]hen expert          circumstances where both the occurrence and conditions
testimony is required, lay evidence supporting liability is     complained of are such that the general experience and
legally insufficient.” City of Keller, 168 S.W.3d at 812. In    common sense of laypersons are sufficient to evaluate the
medical malpractice cases, expert testimony regarding           conditions and whether they were probably caused by the
causation is the norm: “The general rule has long been          occurrence.” Id. at 668.
that expert testimony is necessary to establish causation as
to medical conditions outside the common knowledge and          The present case does not fall within this rule. Unlike in
experience of jurors.” Guevara v. Ferrer, 247 S.W.3d            Morgan, an otherwise healthy person did not suddenly
662, 665 (Tex.2007); see also Bowles v. Bourdon, 148            experience health difficulties following the defendant’s
Tex. 1, 219 S.W.2d 779, 782 (1949) (“It is definitely           negligent conduct when the plaintiff’s symptoms were
settled with us that a patient has no cause of action against   reasonably attributable to the negligence and to nothing
his doctor for malpractice, either in diagnosis or              else. Rather, a patient with terminal colon cancer did not

                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                              4
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

receive antibiotics for four-and-a-half days following        husband and son is evidence of her suffering, but not of
major abdominal surgery and after having received the         its cause. Thus, we hold that the lay testimony presented
medications for eight days. There is no direct evidence       by the Casases is legally insufficient to establish that the
that she suffered from an infection treatable by the          Hospital’s negligence caused Casas additional pain and
omitted antibiotics, but there is evidence that she had two   suffering.
other infections that accounted for all of her symptoms
during that time. Given Casas’s medical condition, expert
testimony was crucial to link the prescription lapse to an
infection causing additional pain and suffering beyond
what she would otherwise have experienced. See Kaster v.                           2. Expert Testimony
Woodson, 123 S.W.2d 981, 983 (Tex.Civ.App.-Austin             [11]
1938, writ ref’d) (“What is an infection and from whence          The Casases also presented expert testimony regarding
did it come are matters determinable only by medical          causation. The Casases’ expert, Dr. Daller, testified that
experts.”); see also Hart v. Van Zandt, 399 S.W.2d 791,       the Hospital’s negligence “in medical probability” caused
792 (Tex.1966) (“In determining negligence in a case          Casas additional pain and suffering. He based this opinion
such as this, which concerns the highly specialized art of    on the presence of an intra-abdominal infection that could
treating disease, the court and jury must be dependent on     have been treated using Maxipime and Flagyl. Admitting
expert testimony. There can be no other guide, and where      that no direct evidence indicated such an infection, Dr.
want of skill and attention is not thus shown by expert       Daller pointed to various circumstantial indicators that
evidence applied to the facts, there is no evidence of it     suggested an infection. These indicators were primarily
proper to be submitted to the jury.”).                        Casas’s changed vital signs, such as fever and increased
                                                              heart rate: “Well, given the fact that two to three days
The Casases point to testimony by Casas’s husband and         after the antibiotics had been mistakingly [sic] stopped
son to support their argument that she deteriorated rapidly   her fever curve went up and her heart rate went up, to me
after discovering she did not receive the antibiotics. But    that suggests the presence of on going [sic] infection.”6
this characterization overstates the evidence. While          But on cross-examination, he conceded these data were
Casas’s husband testified she was upset and did not trust     equally consistent with two other infections cultured from
her doctors following the discovery, she was still            Casas’s incision and blood—Candida and coagulase—
determined to fight her cancer. The son also observed         negative staph—neither of which is treatable by
Casas’s anger and lack of trust but testified that the        Maxipime or Flagyl:
opening of her wound, which occurred the same day she
learned of the lapse, upset her even more. As Dr. Daller
                                                                 Q. Now, Candida, infection of a wound like this, they
admitted, Candida likely caused the abscess that required
                                                                 can cause high temperatures. Correct?
Dr. Garcia–Cantu to drain the wound. Further, based on
his experience at Casas’s bedside, her son pinpointed the            A. Fungal infections can cause a high temperature,
tragic events of September 11, 2001, and their effect on             yes.
his mother as the turning point in her mental state. The
latter event was some seven weeks after discovery of the             Q. It can cause increased heart rate?
lapsed prescriptions and after Casas’s discharge from and
re-admission to the Hospital. This evidence does not bear            A. That is correct.
out the Casases’ claim of a marked shift in Casas’s mental
resilience following the omission of the medications.                Q. And inflammation?

*535 More importantly, Casas’s husband and son were                  A. That is correct.
unable to precisely identify the cause of her suffering.
While they could accurately describe her discomfort, they            Q. Pain?
were unable to say if it was the cancer, the surgery, the
other infections, or the lapse that caused it. Even                  A. That is correct.
testimony that Casas suffered after learning of the
                                                                     Q. How about an abscess?
omission raises no more than a mere suspicion of
causation, and that is not enough, see Guevara, 247                  A. It caused or is part of the abscess in that wound
S.W.3d at 668, particularly in light of the evidence that            that was present, that wound infection that needed to
Casas thought she was cured of cancer before the surgery             be opened.
and then learned that not only was it “back with a
vengeance,” it was terminal. The testimony of Casas’s

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

       Q. So when Doctor Garcia went in on 7/23 ... and        defendant’s negligence. The expert must explain why the
       drained that wound at bedside that abscess was          inferences drawn are medically preferable to competing
       within a reasonable degree of medical probability       inferences that are equally consistent with the known
       caused by the Candida?                                  facts. Thus, when the facts support several possible
                                                               conclusions, only some of which establish that the
       *536 A. That was one of the organisms that was          defendant’s negligence caused the plaintiff’s injury, the
       there. It was the organism that was cultured. That is   expert must explain to the fact finder why those
       correct.                                                conclusions are superior based on verifiable medical
                                                               evidence, not simply the expert’s opinion. See Lenger,
       ....                                                    455 S.W.2d at 707 (“[E]xpert testimony that the event is a
                                                               possible cause of the condition cannot ordinarily be
       Q. ... This coagulase negative staph causes fever?      treated as evidence of reasonable medical probability
                                                               except when, in the absence of other reasonable causal
       A. Correct.
                                                               explanations, it becomes more likely than not that the
       Q. Increased heart rate?                                condition did result from the event.”); Hart, 399 S.W.2d
                                                               at 792 (“The burden of proof is on the plaintiff to show
       A. The fever will cause increased heart rate.           that the injury was negligently caused by the defendant
                                                               and it is not enough to show the injury together with the
       ....                                                    expert opinion that it might have occurred from the
                                                               doctor’s negligence and from other causes not the fault of
       Q. It can cause pain?                                   the doctor. Such evidence has no tendency to show that
                                                               negligence did cause the injury.”).
       A. Depending upon the site. Correct.
                                                               By conceding that Casas’s symptoms were consistent
       Q. Okay. All of these things can be caused by           with infections not treatable by Maxipime or Flagyl, Dr.
       coagulase negative staph and Candida, which we          Daller undermined his conclusion that an undetected
       know were present 7/18 through 7/23, the time           infection was also present. While it is possible that Casas
       period she did not get antibiotics?                     did have such an infection, its presence can only be
                                                               inferred from facts that are equally consistent with the
       A. That’s correct.                                      Candida and coagulase-negative staph infections. “
                                                               ‘When the circumstances are *537 equally consistent with
       Q. Neither one would have been killed by Maxipime
                                                               either of two facts, neither fact may be inferred.’ ” City of
       or Flagyl?
                                                               Keller, 168 S.W.3d at 813 (quoting Tubelite, 819 S.W.2d
      A. That’s correct.                                       at 805). Here, objective data—the cultures—support the
[12] [13]
        It is not enough for an expert simply to opine that    Candida and staph infections but not the supposed
the defendant’s negligence caused the plaintiff’s injury.      anaerobic infection.7
The expert must also, to a reasonable degree of medical        [14]   [15]
probability, explain how and why the negligence caused                  Based on the record evidence, an anaerobic
the injury. We have rejected expert opinions not grounded      infection cannot be proved or disproved. It is equally
in a sound evidentiary basis: “[I]f no basis for the opinion   plausible that Casas had such an infection or that she did
is offered, or the basis offered provides no support, the      not. Dr. Daller opined that she did, but he did not explain
opinion is merely a conclusory statement and cannot be         why that opinion was superior to the opposite view. Such
considered probative evidence, regardless of whether           evidence raises no more than a possibility of causation,
there is no objection. ‘[A] claim will not stand or fall on    which is insufficient. As we said in Bowles v. Bourdon, “
the mere ipse dixit of a credentialed witness.’ ” City of      ‘[t]he proof must establish causal connection beyond the
San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009)         point of conjecture. It must show more than a possibility.
(quoting Burrow v. Arce, 997 S.W.2d 229, 235                   Verdicts must rest upon reasonable certainty of proof.
(Tex.1999)); see also Whirlpool Corp. v. Camacho, 298          Where the proof discloses that a given result may have
S.W.3d 631, 637 (Tex.2009) ( “Conclusory or speculative        occurred by reason of more than one proximate cause, and
opinion testimony is not relevant evidence because it does     the jury can do no more than guess or speculate as to
not tend to make the existence of material facts more          which was, in fact, the efficient cause, the submission of
probable or less probable.”). When the only evidence of a      such choice to the jury has been consistently condemned
vital fact is circumstantial, the expert cannot merely draw    by this court and by other courts.’ ” 219 S.W.2d at 785
possible inferences from the evidence and state that “in       (quoting Ramberg v. Morgan, 209 Iowa 474, 218 N.W.
medical probability” the injury was caused by the              492, 498–99 (1928)).

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                               when those findings are not supported by credible
The Casases argue that the foul smell, which is consistent     evidence. When the evidence compels the jury to guess if
with an anaerobic infection, is strong evidence of such an     a vital fact exists, a reviewing court does not undermine
infection. Looking at the patient notes for July 24, Dr.       the jury’s role by sustaining a no-evidence challenge. The
Daller commented on the smell:                                 evidence in this case—being consistent with an anaerobic
                                                               infection that was treatable by Flagyl, a fungal infection
   A. The text says something about drainage to the            that was not, or even with dying tissue, cancerous or
   abdomen with moderate amount of drainage. And it            otherwise—did not provide the jury a reasoned basis from
   says that it is foul smelling.                              which to infer the presence of a negligence—induced
                                                               infection. Because the jury could not reasonably infer an
   ....                                                        infection caused by the Hospital’s negligence, we agree
                                                               with the Hospital that no evidence supports the jury’s
   Q. The [previous notes] that I remember that we have        verdict.
   gone over didn’t say anything about foul smelling?
                                                               We understand the Casas family’s predicament and
   A. That’s correct. They were just described as I recall
                                                               frustration at the Hospital’s conduct, and we recognize the
   as being purulent and looking like puss [sic].
                                                               difficulty of proving that the lapsed prescriptions caused a
   Q. What does that mean when it says “foul smelling”?        painful infection. But the Casases shouldered that burden
                                                               and must prove the causal link with reasonable certainty.
   A. When you have foul smelling, it suggests that the        In that quest, the Casases offered the testimony of Dr.
   organism is an anaerobe. In other words, one of those       Daller, but he did not explain why an undetected,
   bacteria that didn’t need oxygen in order to grow that,     anaerobic infection is medically more probable than one
   for example, Flagyl would treat.                            based on the known infections and the dying tissue,
                                                               leaving the jury to guess if the lapsed prescriptions caused
   Q. Okay. Does that give you clinical evidence that had      additional pain and suffering. Without probative medical
   she been continued on Maxipime and Flagyl that they         testimony that the lapse caused—by means of an infection
   would have had some effect with regards to the              treatable by Maxipime and Flagyl—more pain than the
   condition as we see it on the 24th?                         cancer, the surgery, and the other infections already
                                                               inflicted, there is no legally sufficient evidence of
   A. Well, like I said, most anaerobes are sensitive or       causation. Dr. Daller did not provide that causal link;
   susceptible to Flagyl. And she had previously been on       accordingly, we hold that his testimony is legally
   Flagyl and at this time she is not. So I would have         insufficient to support the jury’s verdict. Because the
   expected that that would be an appropriate antibiotic       Casases failed to prove causation, we reverse the
   that would have covered the organism that’s causing         judgment of the court of appeals and render judgment that
   that foul smell.                                            the Casases take nothing.

Dr. Berkowitz, the Hospital’s expert, offered several other
explanations for the smell, including necrotic tissue, dead
cancer tissue, and the Candida infection.8 As *538 noted,      B. Adequacy of the Expert Report
Casas’s son noticed the smell after the incision was           [18] [19]
                                                                         In his petition, Dr. Jelinek raises a single issue:
opened to drain the abscess, which Dr. Daller admitted         whether the trial court abused its discretion by denying
was likely caused by Candida.                                  his motion for sanctions and dismissal because the
                                                               Casases’ expert report was deficient under former article
[16] [17]
        Here again, there are competing explanations for       4590i § 13.01, the statute in effect at the time. See
the smell, which amounts to no more than circumstantial        TEX.REV.CIV. STAT. art. 4590i § 13.01. Article 4590i
evidence of some kind of infection or possibly dying           required the report to provide “a fair summary of the
tissue. Because there is no direct evidence of the infection   expert’s opinions as of the date of the report regarding
and the circumstantial evidence is meager, we “must            applicable standards of care, the manner in which the care
consider not just favorable but all the circumstantial         rendered by the physician or health care provider failed to
evidence, and competing inferences as well.” City of           meet the standards, and the causal relationship between
Keller, 168 S.W.3d at 814. Courts should not usurp the         that *539 failure and the injury, harm, or damages
jury’s role as fact finder, nor should they question the       claimed.” Id. § 13.01(r)(6). “If a plaintiff timely files an
jury’s right to believe one witness over another. But when     expert report and the defendant moves to dismiss because
reviewing a verdict for sufficiency of the evidence, courts    of the report’s inadequacy, the trial court must grant the
need not—indeed, must not—defer to the jury’s findings         motion ‘only if it appears to the court, after hearing, that

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

the report does not represent a good faith effort to comply        Palacios element—it does not give the trial court any
with the definition of an expert report in Subsection (r)(6)       reasonable basis for concluding that the lawsuit has merit.
of this section.’ ” Bowie Mem’l Hosp. v. Wright, 79                See 46 S.W.3d at 879. An expert’s conclusion that “in
S.W.3d 48, 51–52 (Tex.2002) (per curiam) (quoting §                medical probability” one event caused another differs
13.01(l )). Dismissal for failure to serve an adequate             little, without an explanation tying the conclusion to the
expert report also carried mandatory sanctions, requiring          facts, from an ipse dixit, which we have consistently
an award to the defendant of his costs and attorney’s fees         criticized. See Pollock, 284 S.W.3d at 818 (citing Burrow,
against the plaintiff or the plaintiff’s attorney. See Am.         997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46              expert’s simple ipse dixit is insufficient to establish a
S.W.3d 873, 877 (Tex.2001) (citing § 13.01(e)).                    matter; rather, the expert must explain the basis of his
                                                                   statements to link his conclusions to the facts.”). Instead,
[20] [21]
        We have defined a “good-faith effort” as one that          the expert must go further and explain, to a reasonable
provides information sufficient to (1) “inform the                 degree, *540 how and why the breach caused the injury
defendant of the specific conduct the plaintiff has called         based on the facts presented. While we have said that no
into question,” and (2) “provide a basis for the trial court       “magical words” need be used to meet the good-faith
to conclude that the claims have merit.” Wright, 79                requirement, mere invocation of the phrase “medical
S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). All              probability” is likewise no guarantee that the report will
information needed for this inquiry is found within the            be found adequate. See Wright, 79 S.W.3d at 53.
four corners of the expert report, which need not “marshal
all the plaintiff’s proof” but must include the expert’s           Under these standards, the Casases’ report is conclusory
opinion on each of the three main elements: standard of            on causation. It offers no more than a bare assertion that
care, breach, and causation. Id. Importantly for this case,        Dr. Jelinek’s breach resulted in increased pain and
the “report cannot merely state the expert’s conclusions           suffering and a prolonged hospital stay. Beyond that
about these elements,” but “ ‘the expert must explain the          statement, the report offers no explanation of how the
basis of his statements to link his conclusions to the             breach caused the injury. Again, the plaintiff need not
facts.’ ” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890       marshal all of his proof in the report, but he must include
(Tex.1999)). “A report that merely states the expert’s             sufficient detail to allow the trial court to determine if the
conclusions about the standard of care, breach, and                claim has merit. Because the Casases’ report lacks any
causation” does not fulfill the two purposes of a good-            explanation linking the expert’s conclusion to the relevant
faith effort. Palacios, 46 S.W.3d at 879.                          facts, we hold that the trial court abused its discretion by
                                                                   denying Dr. Jelinek’s motion and the court of appeals
[22] [23]
         We review the trial court’s grant or denial of a          erred by affirming that ruling.9 See id. at 52. Accordingly,
motion for sanctions and dismissal under the abuse-of-             we remand the case to the trial court for an award of
discretion standard. Palacios, 46 S.W.3d at 877–78. A              attorney’s fees and costs10 under former article 4590i §
district court “abuses its discretion if it acts in an arbitrary   13.01(e) against the Casases and their counsel.11
or unreasonable manner without reference to any guiding
rules or principles.” Wright, 79 S.W.3d at 52 (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex.1985)).
                                                                                      *541 III. Conclusion
Dr. Jelinek argues that the Casases’ report is deficient in
two ways, failing (1) to state the applicable standard of          For the foregoing reasons, we reverse the court of
care, and (2) to provide more than conclusory statements           appeals’ judgment, render judgment that the Casases take
of causation. We focus on the latter. Dr. Daller’s report          nothing, and remand to the trial court for an award of Dr.
concluded that Dr. Jelinek’s breach of the appropriate             Jelinek’s attorney’s fees and costs consistent with this
standard of care in “reasonable medical probability,               opinion.
resulted in a prolonged hospital course and increased pain
and suffering being experienced by Ms. Casas.” Aside
from repeating essentially the same phrase twice more,
the report says nothing more regarding causation. The              Chief Justice JEFFERSON filed an opinion, dissenting in
Casases argue this statement is sufficient to meet the             part, in which Justice GREEN and Justice LEHRMANN
good-faith requirement. We disagree.                               joined.

An expert cannot simply opine that the breach caused the           Justice LEHRMANN filed an opinion, dissenting in part.
injury. Stated so briefly, the report fails the second

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

Chief Justice JEFFERSON, joined by Justice GREEN and          Dr. Jelinek and the hospital appealed the trial court’s
Justice LEHRMANN, dissenting in part.                         judgment. The hospital complained that the evidence was
                                                              legally insufficient to support the verdict. Dr. Jelinek
We must decide whether an expert report gave a “fair          complained that the trial court improperly denied him
summary” of the expert’s opinions regarding standard of       attorney’s fees, as the expert report was not a good faith
care, failure to meet the standard, and the link between      effort to comply with statutory requirements. The court of
that failure and the patient’s damages. We must consider      appeals affirmed, 2008 WL 2894889, *9–*10, 2008
the expert’s opinions “as of the date of the report.”         Tex.App. LEXIS 5647, *28–*29 (Tex.App.-Corpus
TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6) (repealed         Christi July 29, 2008), and the appellants below are now
2003). To do so, we must disregard today’s holding that,      petitioners here. I fully join the *542 Court’s rendition of
at trial, there was no evidence linking the discontinuation   judgment for the hospital. I disagree with the Court’s
of antibiotics to increased suffering by Casas. The expert    holding as to the doctor.
report submitted in this case gave fair notice of a
meritorious claim—that the doctor failed to ensure that
his patient received antibiotics, thereby increasing her
pain and suffering. I would affirm the court of appeals’      II. Good faith effort; fair summary
judgment with respect to the doctor.
                                                              Former article 4590i provided that “[a] court shall grant a
                                                              motion challenging the adequacy of an expert report only
                                                              if it appears to the court, after hearing, that the report does
I. Background                                                 not represent a good faith effort to comply with the
                                                              definition of an expert report in [the statute].”
Eloisa Casas, a patient recently diagnosed with colon         TEX.REV.CIV. STAT. art. 4590i § 13.01(l ). “That
cancer, was admitted to Rio Grande Hospital for               definition requires, as to each defendant, a fair summary
abdominal pain. The cancer had perforated her colon, the      of the expert’s opinions about the applicable standard of
contents of which leaked into her abdominal cavity,           care, the manner in which the care failed to meet that
causing an abscess. After the doctor drained and              standard, and the causal relationship between that failure
surgically removed the abscess, he discovered that Casas      and the claimed injury.” Am. Transitional Care Ctrs. of
had an E. coli infection, for which the doctor prescribed     Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001)
two antibiotics. Although those prescriptions were            (citing TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6)).
supposed to have been renewed five days later, they           Because an expert report is filed long before discovery is
lapsed. Casas contends this mistake occurred because the      complete, we cannot judge it according to what
doctor failed to ensure that hospital staff complied with     subsequent discovery reveals or how the evidence
his renewal order. During the four days after the             develops at trial. The question is whether the report fairly
prescriptions expired, Casas’s surgical incision began to     summarizes the malpractice elements before the case is
emit a putrid odor. She developed several infections in       tested in a full adversary process. For that reason, “to
addition to E. coli, exacerbating her pain and extending      avoid dismissal, a plaintiff need not present evidence in
her stay in the hospital. Casas died two months after she     the report as if it were actually litigating the merits. The
was discharged.                                               report can be informal in that the information in the report
                                                              does not have to meet the same requirements as the
Casas’s estate sued the Hospital and two of the treating      evidence offered in a summary-judgment proceeding or at
doctors, Dr. Garcia–Cantu and Dr. Jelinek, for negligently    trial.” Id. at 879.
causing Mrs. Casas “grievous embarrassment and
humiliation, as well as excruciating pain the remainder of    The report must also give the defendant notice of the
her life which she would not have suffered to such degree     conduct the plaintiff challenges, and the trial court must
if properly diagnosed, treated and cared for....” The trial   have a basis to determine whether the claim has merit. Id.
court denied Dr. Jelinek’s motion to dismiss the case         The dividing line between a sufficient and an inadequate
against him. Nevertheless, the estate nonsuited both          report is impossible to draw precisely. We have said,
doctors more than a year before Casas’s claim against the     therefore, that the determination must be made in the first
Hospital was tried to a jury. At that trial, the jury found   instance by the trial court, and review of that decision
the hospital 90% negligent, and each doctor 5% negligent.     asks not how an appellate court would have resolved the
The trial court rendered judgment against the hospital,       issue, but instead whether the trial court abused its
and the court’s order non-suiting Dr. Jelinek “with           discretion. See, e.g., Jernigan v. Langley, 195 S.W.3d 91,
prejudice” merged into that final judgment.                   93 (Tex.2006); Walker v. Gutierrez, 111 S.W.3d 56, 63
                                                              (Tex.2003).

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

                                                                did not abuse its discretion by dismissing the plaintiff’s
                                                                claim for lack of a good faith effort to summarize the
                                                                expert’s opinions.
III. Dr. Daller’s report
                                                                Subsequently, in Bowie Memorial Hospital v. Wright, we
Dr. Daller is a physician and an expert on intra-abdominal      held that the trial court did not abuse its discretion in
abscesses and infection. His report states that a doctor        concluding that an expert report failed to comply with the
treating a patient like Casas must ensure that the              statute, as the report did not “establish how any act or
antibiotics he prescribes are actually administered.            omission of employees of Bowie Memorial Hospital
Despite that standard, Dr. Daller states that antibiotics       caused or contributed to [the patient’s] injuries.” See
prescribed for Ms. Casas were not administered from July        Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–53
17 through July 23, even though “[t]here [wa]s no order         (Tex.2002) (quoting the expert in that case as speculating,
to discontinue the antibiotic therapy.” He concluded that       “I do believe that it is reasonable to believe that if the x-
Dr. Jelinek breached the standard of care by his “failure to    rays would have been correctly read and the appropriate
recognize that the antibiotics were not being administered      medical personnel acted upon those findings then [the
as ordered.” Dr. Daller concludes that “[t]his breach in the    plaintiff] would have had the possibility of a better
standard of care ..., within reasonable medical probability,    outcome.”). We observed that a report must satisfy
resulted in a prolonged hospital course and increased pain      Palacios’s two-part test. Id. at 52. Because the report
and suffering....”                                              “lack[ed] information linking the expert’s conclusion (that
                                                                [the plaintiff] might have had a better outcome) to [the
                                                                defendant’s] alleged breach (that it did not correctly read
                                                                and act upon the x-rays), the trial court could have
IV. Dr. Daller gave a “fair summary” of the required            reasonably determined that the report was conclusory.”
standard of care and how the allegedly inadequate               Id. at 53.
care fell below that standard.
                                                                In each of those cases, the trial court could not have
The Court concludes that Dr. Daller’s report lacks the
                                                                evaluated the claim’s merit without speculating about
detail necessary to conclude that the estate’s lawsuit has
                                                                actions the defendant could have taken to prevent injury.
merit. But the cases it cites as support involve situations
                                                                No such speculation is required here. Dr. Daller states that
in which a hindsight view is entirely appropriate. Earle v.
                                                                had the antibiotics been administered from July 17
Ratliff, for example, is a summary judgment case; it
                                                                through July 23, Eloisa Casas would have suffered less.
presents the higher evidentiary standard that Palacios
                                                                Dr. Daller could have stated that conclusion in greater
rejected for expert reports. Earle v. Ratliff, 998 S.W.2d
                                                                detail, of course, but “[a] report need not marshal all the
882, 890 (Tex.1999) (“Summary judgment can be granted
                                                                plaintiff’s proof.” Palacios, 46 S.W.3d at 878. Daller’s
on the affidavit of an interested expert *543 witness, ...
                                                                report includes his opinions on (1) the applicable standard
but the affidavit must not be conclusory.... [R]ather, the
                                                                of care (to maintain vigilance over a patient’s treatment),
expert must explain the basis of his statements to link his
                                                                (2) the manner in which the care failed to meet that
conclusions to the facts.”). Similarly, the standard
                                                                standard (failing to ensure the treatment he ordered was
employed in City of San Antonio v. Pollock, 284 S.W.3d
                                                                actually administered), and (3) the causal connection
809, 817–18 (Tex.2009), also cited by the Court, is
                                                                between the failure and the claimed injury (without the
inapplicable here, since it examined an expert report
                                                                antibiotics, the patient’s pain and suffering increased and
under the “no evidence” standard of review. See –––
                                                                she required additional hospitalization).
S.W.3d at ––––.
                                                                A “good faith effort” does not require that the report
In Palacios we held that an expert report that failed to
                                                                “meet the same requirements as the evidence offered in a
articulate a standard of care or explain how the defendant
                                                                summary-judgment proceeding or at trial”; therefore, an
hospital breached that standard was not a good faith effort
                                                                expert report does not fail the good faith effort test merely
to comply with the statutory requirements. Palacios, 46
                                                                because it may not later prove legally sufficient to support
S.W.3d at 880. The expert in that case blamed the hospital
                                                                a judgment. Id. at 879. So, here, whether the Casas estate
for taking no action to prevent a patient from falling out
                                                                ultimately amassed sufficient proof in an adversarial trial
of his bed, even though the patient “had a habit of trying
                                                                is beside the point; the claim itself was far from frivolous.
to undo his restraints.” Id. at 879–880. The report, as
                                                                See id. at 878 (noting that “one purpose of the expert-
such, was not a fair summary of the evidence because it
                                                                report requirement is to deter frivolous *544 claims”).
neglected to articulate what actions the hospital should
                                                                The law imposes a penalty for filing a frivolous suit. Only
have taken that it did not. Id. at 880. Thus, the trial court
                                                                by today’s decree does it also punish a claimant for failing

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Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

to win an arguably meritorious case. Cf. TransAmerican                   period provisions of section 13.01(g).” Walker v.
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918                         Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Thus, health
(1991) (holding that “sanctions cannot be used to                        care claimants could receive an opportunity to rectify
adjudicate the merits of a party’s claims or defenses                    deficiencies in a report if they could show that they did
unless a party’s hindrance of the ... process justifies a                not intentionally, or with conscious indifference, submit
presumption that its claims or defenses lack merit.”).                   an inadequate report.

I agree with the Court that the Estate failed to prove                   Here, the Casases never had the chance to request an
causation at trial; I disagree that, as to Dr. Jelinek, the              opportunity to cure any deficiencies in their report
expert report was not a good faith attempt to comply with                because the trial court determined that the report
the statute. I respectfully dissent in part from the Court’s             adequately complied with section 13.01(d). In Gutierrez,
judgment.                                                                we were guided by our recognition that it would be
                                                                         “perverse” to allow a claimant who filed no report a
                                                                         second chance to comply with the statute’s expert report
                                                                         requirement, while “punishing those who attempt to
Justice LEHRMANN, dissenting in part.                                    comply with the statute but fail.” Id. In this case,
                                                                         perversely, the Casases may have been in a better position
I fully join Chief Justice Jefferson’s dissent. I write                  *545 than they are now if the trial court had found that the
separately, however, to highlight the incongruity inherent               report was inadequate; they might have had an
in the Court’s decision to remand the case for an award of               opportunity to eliminate any deficiencies.
attorney’s fees and costs under former article 4590i §
13.01(e), given this case’s circumstances. See                           I agree fully with Chief Justice Jefferson that the report
TEX.REV.CIV. STAT. art. 4590i § 13.01(e) (repealed                       represents a good-faith effort to comply with section
2003)1. The Court presumes that Dr. Michael Jelinek is                   13.01. Even if it did not, however, I would remand the
entitled to attorney’s fees because the expert report filed              case to allow the Casases an opportunity to show that
by Eloisa Casas’s estate2 was, on appeal, determined to be               their failure to present an adequate report was not
insufficient. But, after a pre-trial hearing was held on the             intentional or the result of conscious indifference. See
defendant’s motion to dismiss the lawsuit, the trial court               City of DeSoto v. White, 288 S.W.3d 389, 401 (Tex.2009)
rejected Dr. Jelinek’s contention that the report was                    (remanding in the interest of justice sua sponte to allow
inadequate; consequently, the Casases had no opportunity                 police officer “to make an appellate election with full
to rectify any deficiencies as the statute and our precedent             knowledge of his appellate rights and with knowledge of”
would have allowed.                                                      the guidance provided in Court’s opinion). In my view,
                                                                         the Casases should not be assessed attorney’s fees and
Section 13.01(e) of article 4590i provided for an order                  costs if they can make the showing section 13.01(g)
awarding attorney’s fees and costs if a health care                      requires and then submit a report complying with the
claimant failed to supply an expert report within the time               statute. For these reasons, as well as those expressed by
required under subsection (d)—180 days. But the statute                  Chief Justice Jefferson, I respectfully dissent in part.
provided several avenues for health care claimants to
obtain an extension of the 180–day deadline, including
section 13.01(g). That provision required the trial court to
grant a thirty-day extension of the statutory deadline if a              Parallel Citations
claimant’s failure to provide an expert report was not
intentional or the result of conscious indifference. And we              54 Tex. Sup. Ct. J. 272
have expressly held that “a party who files a timely but
inadequate expert report may seek relief under the grace

Footnotes
1      Francisco Casas and Alfredo DeLeon Jr., Casas’s husband and son, respectively, serve as personal representatives of her estate.
       We refer to them collectively as “the Casases.”
2      Columbia Rio Grande Regional Healthcare, L.P., d/b/a/ Rio Grande Regional Hospital.

3      Because we conclude legally insufficient evidence supports the jury’s verdict, we do not reach the Hospital’s second issue—
       whether the Hospital preserved error regarding its proposed unavoidable accident instruction.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 11
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

4      There was a several-day lag between taking the culture and ordering the prescription, presumably to allow the culture to grow
       and to transmit the results to the treating physicians. Thus, the Diflucan was prescribed on July 21 and the Vancomycin on July
       23.
5      See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and
       Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041,
       repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Former article 4590i § 13.01
       was replaced by Texas Civil Practice and Remedies Code § 74.351, as amended.
6      When asked if the lapsed prescriptions affected Casas’s hospital stay, Dr. Daller equivocated:
          A. I think that it certainly did impact it. However, I cannot quantitate that because there are multiple variables that are
          present in a clinical condition. Whether it lengthened her stay by one day, two days, three days, I cannot say that. What I
          would say from a scientific standpoint is that for four and a half days she did not receive appropriate therapy. Had she
          received the appropriate therapy then you would expect her length of stay to be shortened somewhat. To quantitate that, I
          could not do that.
          ....
          A. Obviously, not receiving antibiotics is not going to shorten your stay. Therefore, if it impacted the stay it must have
          lengthened it. (emphases added).
7      Admittedly, anaerobic bacteria are hard to culture because they are averse to oxygen.

8      Dr. Berkowitz testified:
            I think that there are a number of things that can cause things smelling bad besides just infection. Tissue that dies doesn’t
            smell good. There’s bacteria and products released by the dead tissue that don’t smell good.
            And we know based on the pathology report of the cancer that they took out of her abdomen, that this had grown enough
            that it was dying. In other words, it was probably outgrowing it’s [sic] blood supply and was starting to die. That in and of
            itself can smell bad. Then you have a wound that is infected; although Candida itself does not typically smell bad, not like
            something dead. It smells funky and people don’t like the way it smells. The wound itself when it wasn’t healing was
            probably having some necrotic tissue, as well, or dead tissue that is in the wound. I’m sure that smelled bad, as well. And
            they were never able to completely get rid of all that dead cancer tissue that was in her abdomen.
            I think there’s a number of reasons why she would have had a bad smell, none of which can be explained by four or five
            days of not getting Flagyl [or] Maxipime.
9      In his dissent, CHIEF JUSTICE JEFFERSON argues that an expert report need not meet the legal sufficiency requirements
       necessary to support a judgment and suggests that we hold it must. We agree that an expert report need not “meet the same
       requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. But, as we
       stated earlier, the report must provide more than conclusory statements concerning applicable standards of care, breach of those
       standards, and causation. See id. An expert report must instead, within its four corners, provide some explanation as to each of
       these elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6); Wright, 79 S.W.3d at 52. The report here offered only a
       conclusory statement concerning causation with no explanation as to how the lapse in antibiotic treatment resulted in longer
       hospitalization, increased pain and suffering, or ultimately Casas’s death.
10     In her dissent, JUSTICE LEHRMANN indicates that (1) she would remand the case to allow the Casases an opportunity to
       show that their failure to present an adequate report was not intentional or the result of conscious indifference, and (2) Dr.
       Jelinek should not be entitled to attorney’s fees and costs if the Casases can make this showing and submit an adequate report.
       We note that the Casases did not request a remand of this nature, nor brief the attorney’s fees issue. See State v. Brown, 262
       S.W.3d 365, 370 (Tex.2008) (observing that “[a] party generally is not entitled to relief it does not seek” and refusing to sua
       sponte grant relief that was not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex.1997) (noting that ordinarily,
       failure to brief an argument waives error on appeal); TEX.R.APP. P. 38.1(h).
11     We briefly note that under former article 4590i a trial court’s order denying a motion to dismiss premised on an inadequate
       expert report was not immediately appealable, as it now is under Texas Civil Practice and Remedies Code §§ 51.014 and
       74.351. Nor did we definitively say that mandamus review was appropriate for such orders until almost four years after the trial
       court denied Dr. Jelinek’s motion for dismissal and sanctions. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–62
       (Tex.2008). Thus, we do not fault Dr. Jelinek for waiting until final judgment to seek review of the trial court’s order. See
       Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“Generally, appeals may only be taken from final judgments....”).
         We mention this point because we have since cautioned that a defendant—having foregone the interlocutory appeal now
         available—risks losing the right to appeal following final judgment if, after a trial on the merits, the jury finds the defendant
         liable. See id. at 321. Even if the present statute applied here, this caution would not bar Dr. Jelinek’s appeal because he was
         not a party at trial, having been nonsuited earlier. We will not bar a nonsuited defendant’s appeal after final judgment because
         the jury finds him liable at a former codefendant’s trial. Such a defendant did not call or cross-examine witnesses, present
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    12
Jelinek v. Casas, 328 S.W.3d 526 (2010)
54 Tex. Sup. Ct. J. 272

         evidence, or otherwise participate at trial and should not be bound by what happens there.
1      See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and
       Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041,
       repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. For ease of reference, I will
       refer to the relevant provisions as they were identified in article 4590i.
2      I refer to the estate, which was represented by Casas’s husband and son, as “the Casases.”




End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  13
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717



                                                               Opinion
                     195 S.W.3d 91
                 Supreme Court of Texas.                       PER CURIAM.
          Floyd E. JERNIGAN, M.D., Petitioner,
                             v.                                The issue in this medical malpractice case is whether the
           Marie LANGLEY, Individually and as                  plaintiff’s expert reports meet the specificity requirements
      Representative of the Estate of John Langley and         of section 13.01 of the Medical Liability and Insurance
          Mariah Langley, a Minor, Respondent.                 Improvement Act (the “MLIIA”). Former TEX. REV.
                                                               CIV. STAT. art. 4590i, § 13.01.1
               No. 05–0299. | June 9, 2006.
                                                               In September 1998, Marie Langley brought suit alleging
Synopsis                                                       that the death of her 46–year–old husband, John Langley,
Background: Wife of patient who died two days after            resulted from the negligence of Providence Hospital in
emergency surgery brought medical malpractice action           Waco and several physicians, including Dr. Floyd
against attending physician and others. The 19th District      Jernigan. The trial court dismissed Langley’s suit against
Court, McLennan County, Ralph Strother, J., dismissed          Dr. Jernigan for failure to provide an expert report that
action against attending physician for failure to provide an   satisfied the requirements of section 13.01 of the MLIIA.
expert report that satisfied the requirements of the           The court of appeals reversed the trial court’s dismissal.
Medical Liability and Insurance Improvement Act. Wife          We reverse the judgment of the court of appeals and
appealed. The Court of Appeals, 76 S.W.3d 752, reversed.       dismiss with prejudice Langley’s claims against Dr.
Attending physician petitioned for further review. The         Jernigan.
Supreme Court, 111 S.W.3d 153, reversed. On remand,
the Court of Appeals initially affirmed the district court’s   On the morning of October 6, 1996, John Langley went to
dismissal, but upon grant of wife’s motion for rehearing,      Providence Hospital complaining of stomach pain. An
the Court of Appeals, 2005 WL 486759, reversed.                abdominal x-ray was performed, and John was diagnosed
Attending physician petitioned for review.                     with fecal impaction. He was given a gallon of
                                                               GoLYTELY to drink at home and was instructed to return
                                                               that evening. He returned a few hours later in acute pain
                                                               and was admitted to the hospital. John’s condition
Holdings: The Supreme Court held that:                         worsened, and he underwent emergency surgery that
                                                               evening. He fared poorly overnight and was operated on
[1]
   expert reports failed to identify with specificity any      again the following day. John died the next morning,
action or inaction by attending physician that breached the    October 8, 1996.
applicable standard of care, and thus reports failed to
comply with the Act, and                                       Marie Langley filed this suit in September 1998, and filed
                                                               two timely expert reports thereafter. In June 2000, Dr.
[2]
  expert reports could not constitute a good faith effort to   Jernigan filed a motion to dismiss with prejudice under
comply with the Act, and thus trial court had no discretion    section 13.01(e) of the MLIIA based on alleged
but to dismiss claims against attending physician.             deficiencies in Langley’s expert reports. At the hearing on
                                                               the motion to dismiss, Langley argued that Dr. Jernigan
                                                               had waived his statutory right to seek dismissal because
Judgment of Court of Appeals reversed.                         he had waited more than 600 days to challenge the
                                                               reports. Langley also moved for an extension of time to
                                                               allow the late filing of a third expert report. The trial court
Attorneys and Law Firms                                        denied Langley’s motion for an extension of time, and
                                                               then severed and dismissed Langley’s claims against Dr.
*92 Greg White, Nancy Napier Morrison, Waco, Bob
                                                               Jernigan. The court of appeals reversed, holding that Dr.
Burleson, Naman, Howell, Smith & Lee, L.L.P., Temple,
                                                               Jernigan had impliedly waived his rights under section
for Petitioner.
                                                               13.01. 76 S.W.3d 752 (Tex.App.—Waco 2002). This
Thomas B. Cowart, Law Offices of Windle Turley, P.C.,          Court disagreed, reversing and remanding the case back
Dallas, for Respondent.                                        to the court of appeals. 111 S.W.3d 153 (Tex.2003).


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717

On remand, the court of appeals initially affirmed the trial
                                                                 [4]
court’s dismissal, *93 No. 10–00–00373–CV, 2004 WL                  Limiting our section 13.01(1) adequacy analysis to the
1211607, 2004 Tex.App. LEXIS 4972 (June 2, 2004), but            four corners of Langley’s two timely-filed expert reports,
nine months later issued a new opinion holding that              id. at 878, it is notable that one report does not mention
Langley’s reports were adequate under section 13.01, and         Dr. Jernigan at all, and the other report only mentions him
therefore the trial court abused its discretion in dismissing    in this single sentence: “At 4:30 p.m. [John Langley’s]
Langley’s claims against Dr. Jernigan, 2005 WL 486759,           case was discussed with Dr. Jernigan and at 4:50 p.m. a
2005 Tex.App. LEXIS 1687 (Mar. 2, 2005).                         lactulose enema was ordered.”
Alternatively, the court concluded that the trial court
abused its discretion in refusing to grant Langley a 30–         Dr. Jernigan appears in only one line of one report. This
day grace period under section 13.01(g) because                  passing reference does not identify with specificity any
Langley’s failure to comply was not intentional or the           action or inaction by Dr. Jernigan that breached the
result of conscious indifference. Id. 2005 WL 486759, at         applicable standard of care. This perfunctory mention
*5, 2005 Tex.App. LEXIS 1687 at *10–18.                          alleges no misconduct whatsoever, much less discusses
                                                                 the required elements with “sufficient specificity” to
[1]
    Under section 13.01(d)(1) of the MLIIA, a plaintiff          inform Dr. Jernigan of “the conduct the plaintiff has
bringing a health care liability claim must furnish an           called into question.” Id. at 875.
expert report within 180 days of filing suit. Former TEX.
REV. CIV. STAT. art. 4590i, § 13.01(d)(1). The expert            As to the standard of care applicable to Dr. Jernigan, the
report need not marshal every bit of the plaintiff’s             court of appeals found that the following stand-alone
evidence, but it must provide “a fair summary of the             statement in one of the reports captured the standard *94
expert’s opinions as of the date of the report regarding         of care for each defendant-physician: “surgical
applicable standards of care, the manner in which the care       consultation should have been obtained once the x-rays
rendered by the physician or health care provider failed to      demonstrated obstruction.” 2005 WL 486759, at *2, 2005
meet the standards, and the causal relationship between          Tex.App. LEXIS 1687 at *8–9. Even assuming arguendo
that failure and the injury, harm or damages claimed.” Id.       that the standard of care applicable to every doctor
§ 13.01(r)(6). If a claimant fails to file an adequate expert    reviewing such x-ray results is to obtain an immediate
report timely, the trial court must dismiss a claimant’s suit    surgical consult, neither of Langley’s expert reports
with prejudice upon motion by the defendant. Id. §               asserts that Dr. Jernigan was ever provided with the x-ray
13.01(e). The trial court must grant a motion challenging        results or had any independent duty to review them.
the adequacy of an expert report only if the report does         Instead, the court of appeals indulges multiple inferences
not represent a good faith effort to comply with section         that are simply unsupported by the scant reports.
13.01(r)(6)’s definition of an expert report. Id. § 13.01(1).
Finally, upon timely motion, the trial court must grant the      Moreover, according to the reports, the x-rays were taken
claimant a 30–day grace period to comply with the statute        on John Langley’s first visit to Providence Hospital at
if the trial court finds that the claimant’s failure to comply   6:40 a.m. on October 6, 1996, whereas Dr. Jernigan did
was “not intentional or the result of conscious                  not become involved in John’s treatment until the case
indifference but was the result of an accident or mistake.”      was “discussed” with him at 4:30 p.m., nearly ten hours
Id. § 13.01(g).                                                  later. The expert reports state that the surgeons were
                                                                 called at 6:40 p.m., but do not assert that Dr. Jernigan
[2] [3]
       A trial court’s decision to dismiss under section         personally failed to order a surgical consult prior to that
13.01(e) is reviewed for abuse of discretion. Am.                time or that the roughly two-hour gap between when the
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46            surgeons were called and when they arrived at 8:30 p.m.
S.W.3d 873, 877–78 (Tex.2001). Denial of a section               was attributable to Dr. Jernigan.
13.01(g) grace period is also reviewed for abuse of
discretion. Walker v. Gutierrez, 111 S.W.3d 56, 63               We agree with the dissent below that Langley’s expert
(Tex.2003).                                                      reports failed to comply with section 13.01 because
                                                                 “[e]ven if we assume that the reports address the standard
We held in Palacios that in order to constitute a good-          of care with respect to each doctor, ... neither report
faith effort under section 13.01(1), an expert report must       addresses how Dr. Jernigan breached the standard or how
“discuss the standard of care, breach, and causation with        his unstated breach of duty caused John’s death with
sufficient specificity to inform the defendant of the            sufficient specificity for the trial court, and Jernigan, to
conduct the plaintiff has called into question and to            determine that the allegations against Jernigan had any
provide a basis for the trial court to conclude that the         merit.” 2005 WL 486759, at *14, 2005 Tex.App. LEXIS
claims have merit.” 46 S.W.3d at 875.                            1687 at *51–52 (Gray, C.J., dissenting). A glancing

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Jernigan v. Langley, 195 S.W.3d 91 (2006)
49 Tex. Sup. Ct. J. 717

statement that John’s case was “discussed” with Dr.
Jernigan sheds no light whatsoever on what Dr. Jernigan                 The trial court did not abuse its discretion in dismissing
allegedly did wrong, much less how his alleged error(s)                 Langley’s claims against Dr. Jernigan. Accordingly,
proximately caused John’s death. Thus, we conclude that                 without hearing oral argument, we reverse the court of
the reports omitted statutory elements of Marie Langley’s               appeals’ judgment and dismiss with prejudice Langley’s
claim against Dr. Jernigan.                                             claims against Dr. Jernigan. TEX. R. APP. P. 59.1.
[5]
   Because Langley’s expert reports omit at least one of
the three specifically enumerated requirements of section
13.01(r)(6), they cannot constitute a good faith effort to              Parallel Citations
meet the statutory requirements. Palacios, 46 S.W.3d at
879. Accordingly, the trial court had no discretion but to              49 Tex. Sup. Ct. J. 717
conclude, as it did here, that Langley’s claims against Dr.
Jernigan must be dismissed. Id. at 880.

Footnotes
1      Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985–87 (adding expert report requirement, at
       former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg.,
       R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898–99 (“House Bill 4”) (adopting chapter 74
       of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing
       prior law in effect for actions filed before that date) (current version at TEX. CIV. PRAC. & REM CODE § 74.351).




End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
Kocurek v. Colby, Not Reported in S.W.3d (2014)




                                                            Colby was under Kocurek’s care for approximately two
                                                            months after sustaining injuries on the job; his primary
                2014 WL 4179454
  Only the Westlaw citation is currently available.         medical complaints were numbness and pain in his left
                                                            hip and tingling in his right hand. According to Colby,
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                    Kocurek performed no physical examination on him and
         AND SIGNING OF OPINIONS.                           instead had only oral conferences with him. Further,
                                                            Kocurek indicated to him orally that she would refer him
           MEMORANDUM OPINION                               to a specialist, but never did.
            Court of Appeals of Texas,
                     Austin.                                After receiving treatment from Kocurek, Colby moved
                                                            out of state and transferred his care to an orthopedic
  Kristen KOCUREK, M.D., and Texas MedClinic,               specialist there. Shortly thereafter, however, Colby
                   Appellants                               returned to see Kocurek, claiming new symptoms.
                       v.                                   According to Colby’s petition, at that visit Kocurek again
           Anthony D. COLBY, Appellee.                      failed to examine him physically, ignored his symptoms,
                                                            and displayed an inappropriate demeanor toward him.
       No. 03–13–00057–CV. | Aug. 22, 2014.
                                                            Colby filed suit against Kocurek and Texas MedClinic,2
From the District Court of Travis County, 419th Judicial    alleging departures from accepted standards of medical
District No. D–1–GN–12–000186, Tim Sulak, Judge             care that proximately resulted in injuries to him. Colby
Presiding.                                                  alleged that Kocurek failed to meet the applicable
                                                            standards of care in failing to (1) perform a thorough
Attorneys and Law Firms
                                                            examination of him; (2) secure appropriate treatment for
Anthony D. Colby, Austin, TX, pro se appellee.              him; (3) properly diagnose and treat him; (4) refer him to
                                                            or consult with a specialist; and (5) monitor his condition.
Laura A. Macom, George F. Evans Jr., Brett B. Rowe,         Colby     also    made      a    claim     for     fraudulent
Evans & Rowe, PC, San Antonio, TX, for appellant.           misrepresentation/common-law         fraud     relating    to
                                                            Kocurek’s documentation of his injuries and treatment. In
Before Chief Justice JONES, Justices GOODWIN and            addition, Colby claimed that Kocurek’s actions caused (1)
FIELD.                                                      a pinched nerve in his right hand to become entrapped, (2)
                                                            his left hip to develop bursitis and soft-tissue nerve
                                                            damage, (3) limited range of motion in his hip, as well as
                                                            constant pain and nerve damage that will worsen with
                                                            age, and (4) a need for surgery in his right hand due to
                                                            numbness, tingling, and serious pain.
             MEMORANDUM OPINION
                                                            After filing suit, Colby served appellants with the expert
SCOTT K. FIELD, Justice.                                    report of Dr. Ronald Devere, a neurologist, to comply
                                                            with the expert-report requirement of section 74.351 of
*1 Appellants Kristen Kocurek, M.D., and Texas
                                                            the Texas Civil Practice and Remedies Code. See id.
MedClinic appeal from the trial court’s denial of their
                                                            Appellants then filed a motion to dismiss the suit,
motion to dismiss appellee Anthony D. Colby’s1 suit for
                                                            claiming that Devere’s expert report failed to satisfy the
medical malpractice based on Colby’s alleged failure to
                                                            statutory elements under section 74.351. After a hearing,
provide an adequate expert report as required by chapter
                                                            the trial court agreed with appellants that Devere’s expert
74 of the Texas Civil Practice and Remedies Code. See
                                                            report was deficient, but granted Colby a 30–day
Tex. Civ. Prac. & Rem.Code § 74.351. We will reverse
                                                            extension to cure the deficiencies. In response to the trial
the trial court’s judgment and remand for dismissal and a
                                                            court’s ruling, Colby served appellants with an amended
determination of attorneys’ fees.
                                                            report from Devere. Appellants again filed a motion to
                                                            dismiss, contending that Devere’s amended report
                                                            remained deficient. After a hearing, the trial court denied
                                                            appellants’ motion to dismiss.3 Appellants then filed this
 FACTUAL AND PROCEDURAL BACKGROUND                          interlocutory appeal. See id. § 51.014(a)(9).



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Kocurek v. Colby, Not Reported in S.W.3d (2014)



                       ANALYSIS                                dismiss the plaintiff’s claims. See id. § 74.351(a), (b). In
                                                               two appellate issues, appellants contend that the trial court
Jurisdiction                                                   abused its discretion in denying their motion to dismiss
*2 In response to appellants’ appeal, Colby contends that      because (1) Devere is not a qualified expert to provide a
this Court lacks jurisdiction over the appeal. Colby           report in this case, and (2) Devere’s report is conclusory
appears to argue that once a trial court grants a 30–day       with regard to the element of causation. We will begin
extension for a plaintiff to file an amended report and the    with analysis of whether Devere’s report adequately
plaintiff files an amended report, no appeal may be taken      demonstrates causation.
with regard to the trial court’s ruling on the adequacy of
the amended report. Colby argues that, in any event, a         *3 When a party challenges the adequacy of an expert
party may not appeal the denial of a motion to dismiss         report, the trial court should sustain the objection only if it
relating to the adequacy of the expert report. In support of   determines that the report does not represent an “objective
his argument, Colby relies on this Court’s opinion in          good faith effort to comply with the definition of an
Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d          expert report.” Id. § 74.351(l ). To constitute a good-faith
184 (Tex.App.-Austin 2005, no pet.). Our opinion in            effort, the report must inform the defendant of the specific
Andra, however, does not support Colby’s position. In          conduct called into question and provide a basis for the
Andra, the defendant filed an interlocutory appeal of a        trial court to determine whether the claims have merit.
denial of a motion to strike an expert report, not a motion    American Transitional Care Ctrs. of Tex., Inc. v.
to dismiss as in this case. Id. at 186. Because of the         Palacios, 46 S.W.3d 873, 879 (Tex.2001). A report does
unique procedural posture in the Andra case, we                not fulfill these purposes if it fails to address the standard
concluded that the motion for relief was a motion under        of care, breach of the standard of care, and causation, or if
section 74.351(l ), for which there is no provision for an     it merely states the expert’s conclusions regarding these
interlocutory appeal when denied. Id. at 189; see Tex.         elements. Id. The expert must link his conclusions to the
Civ. Prac. & Rem.Code § 51.014(a)(10) (allowing                facts of the case. Bowie Mem’l Hosp. v. Wright, 79
interlocutory appeal of order granting relief under section    S.W.3d 48, 52 (Tex.2002). We review a trial court’s
74.351(1 )). That is not the type of motion appellants filed   denial of a motion to dismiss under section 74.351 under
in this case.                                                  an abuse-of-discretion standard. Palacios, 46 S.W.3d at
                                                               878. However, “if an expert report contains only
Appellants filed a motion to dismiss and request for           conclusions about the statutory elements, the trial court
attorneys’ fees under section 74.351(b). See Tex. Civ.         has ‘no discretion but to conclude ... that the report does
Prac. & Rem.Code § 74.351(b) (providing that physician         not represent a good-faith effort’ to satisfy the statute.”
provider may move to dismiss when sufficient expert            Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.App.-Austin
report not served and 120–day deadline has expired). The       2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880).
denial of a motion to dismiss and request for attorneys’       To perform its review, the trial court must look only to the
fees under section 74.351(b) is subject to interlocutory       four corners of the report itself. Palacios, 46 S.W.3d at
appeal under section 51.014(a)(9) of the Texas Civil           878.
Practice and Remedies Code. Lewis v. Funderburk, 253
S.W.3d 204, 208 (Tex.2008). Colby’s jurisdictional             Devere’s eight-page report contains a paragraph on his
complaint is overruled, and we now turn to the merits of       qualifications, lists the issues he is reviewing and the
this appeal.                                                   materials used in that review, and states the background
                                                               facts. The report then turns to a discussion of the
                                                               standards of care for Kocurek’s treatment of Colby and a
                                                               discussion applying those standards of care to the facts
Sufficiency of Expert Report                                   presented. Finally, it contains a conclusion section. The
In a health-care-liability claim, a claimant must provide      report contains some detail of Colby’s complaints, the
each defendant with an expert report and curriculum vitae      standards of care applicable to those complaints, and an
for each expert within 120 days of filing suit. Tex. Civ.      opinion as to whether Kocurek breached the applicable
Prac. & Rem.Code § 74.351(a). The expert report must           standards of care. Devere’s report, however, contains
summarize the expert’s opinions “regarding applicable          nearly no discussion of causation to link Colby’s alleged
standards of care, the manner in which the care rendered       harm to Kocurek’s actions.
by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure    Looking only to the four corners of the report, the
and the injury, harm, or damages claimed.” Id. §               following are the only statements from Devere’s report
74.351(r)(6). After an expert report is filed, the defendant   that could potentially be considered as touching on
may object to the sufficiency of the report and move to        causation:

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Kocurek v. Colby, Not Reported in S.W.3d (2014)



     • “Based on Dr. Kocurek’s failure to act, secure         alleged breaches of the standards of care to any one of
     treatment and properly execute a referral for Mr.        Colby’s injuries.
     Colby, his condition has worsened and he has
     suffered tremendously and unnecessarily.” (from          An expert report must explain, to a reasonable degree,
     Background Facts section of report)                      how and why the alleged breach caused the injury based
                                                              on the facts presented. See Jelinek v. Casas, 328 S.W.3d
     • “By not making this referral [to a specialist],        526, 539–40 (Tex.2010). The closest Devere’s report
     Defendant, Dr. Kocurek, deceived Mr. Colby,              comes to providing a causal link is in his statement that
     created anxiety in Mr. Colby by making him think         “[b]ased on [Kocurek’s] actions or failures to act, Mr.
     that a referral to a specialist was coming when it was   Colby suffered and [Kocurek’s] actions or failures to act
     not and resulted in a delay in Mr. Colby receiving       were a direct cause of worsening pain and numbness to
     any needed care, treatment or therapy that might         Mr. Colby. Her violations of the standard of care resulted
     have been recommended by a specialist, if that           in a delay of Mr. Colby receiving appropriate care for his
     referral had been made.” (from Application of            injuries, and the worsening of his symptoms.” This
     Standard of Care section)                                statement, however, never identifies which breach of
                                                              which standard of care by Kocurek led to a worsening of
     *4 • “In my expert opinion, the Defendant violated       Colby’s pain and numbness. Further, the statement fails to
     the applicable standard of care for physician’s [sic]    identify how any specific injury sustained by Colby
     operating in the State of Texas based on the reasons     would have been prevented or lessened had he received
     mentioned above. Based on her actions or failures to     “appropriate care” sooner. Devere’s statement that
     act, Mr. Colby suffered and her actions or failures to   referring Colby to a specialist might have made a
     act were a direct cause of worsening pain and            difference in Colby’s condition—“treatment or therapy
     numbness to Mr. Colby. Her violations of the             that might have been recommended by a specialist, if that
     standard of care resulted in a delay of Mr. Colby        referral had been made”—amounts to nothing more than
     receiving appropriate care for his injuries, and the     speculation. See id. at 539 (concluding that statement in
     worsening of his symptoms.” (from the Conclusion         expert report that breach of standard of care “in
     section)                                                 reasonable medical probability resulted in [injury]” was
                                                              insufficient). The report does not explain what treatment
     • “Based on these worsening injuries, Mr. Colby has      or therapy a specialist would have provided had Colby
     endured and will continue to endure significant pain,    been referred earlier or how such treatment or therapy
     numbness and incapacity until he can receive the         would have prevented Colby’s injuries. As a result, the
     appropriate treatment to correct these conditions.”      statements in Devere’s report regarding causation amount
     (from the Conclusion section)                            to “no more than a bare assertion that [Kocurek’s] breach
                                                              resulted in increased pain and suffering.” See id. at 540.
The issue is whether these statements, which appear to be
the only attempts made at establishing causation in
                                                              *5 This Court has consistently required more than what
Devere’s report, are sufficient to meet the requirements of
                                                              Devere has provided in terms of expert testimony on
section 74.351. We conclude they are not.
                                                              causation in the context of section 74.351. See Smith, 368
                                                              S.W.3d at 577–78 (holding that expert report failed to
The problem with Devere’s report is that it fails to show,
                                                              show how doctor’s alleged breach of standard of care
within its four corners, what specific actions Kocurek did
                                                              caused patient to commit suicide); Constancio v. Bray,
or did not take, or could have taken, that would have
                                                              266 S.W.3d 149, 157–58 (Tex.App.-Austin 2008, no pet.)
prevented Colby’s symptoms or injuries. See Tex. Civ.
                                                              (holding that expert report that alleged that breach of
Prac. & Rem.Code § 74.351(r)(5) (expert report must
                                                              standard of care by doctor caused patient’s death is
include “fair summary” or expert’s opinion as to “causal
                                                              insufficient when report did not explain how increased
relationship” between medical defendant’s failure to meet
                                                              monitoring of patient, detection of hypoxemia, and other
standard of care and injury). Nowhere in the report does
                                                              actions would have prevented patient’s death); Perez v.
Devere actually state what specific violation of which
                                                              Daughters of Charity Health Servs. of Austin, No. 03–08–
standard of care led to a particular health problem of
                                                              00200–CV, 2008 WL 4531558, at *4 (Tex.App.-Austin
Colby’s. The report lists five standards of care that
                                                              Oct. 10, 2008, no pet.) (mem.op.) (concluding expert
Kocurek allegedly violated in her treatment of Colby and
                                                              report insufficient on causation because it did not link
the specific ways Devere believes Kocurek violated those
                                                              hospital’s actions to patient’s death or any cause of death
standards of care. Devere, however, did not provide facts
                                                              and did not identify any specific injury that would have
that would explain a causal link between any of those
                                                              been prevented had hospital complied with standard of
                                                              care). To find Devere’s report sufficient on causation, we

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 3
Kocurek v. Colby, Not Reported in S.W.3d (2014)



would have to make inferences from beyond the four
corners of his report; this we are not allowed to do.

Based on the record before us and the four corners of the
expert report, we are left with no choice but to conclude                                         CONCLUSION
that the report does not provide an adequate causal link
between Kocurek’s alleged shortcomings and Colby’s                         We reverse the trial court’s order denying appellants’
symptoms or injuries. Because the report is insufficient as                motion to dismiss. We remand the cause to the trial court
to Kocurek, it is also insufficient as to Texas MedClinic,                 for a determination of attorneys’ fees, see Tex. Civ. Prac.
which Colby sued solely on the basis of its alleged                        & Rem.Code § 74.351(b), and for entry of a final order
vicarious liability for Kocurek’s actions. See Smith, 368                  dismissing Colby’s claims against appellants.
S.W.3d at 579. Accordingly, we sustain the appellants’
second issue on appeal.4

Footnotes
1      Colby represents himself in this appeal as he did in the trial court proceedings.

2      Colby’s claims against Texas MedClinic were solely for vicarious liability arising from Kocurek’s actions.

3      The trial judge who denied appellants’ motion to dismiss Devere’s amended expert report was not the same trial judge who
       ruled that Devere’s expert report was deficient in the context of appellants’ first motion to dismiss.
4      Because appellants’ second issue is dispositive of this appeal, we need not reach appellants’ first appellate issue challenging the
       trial court’s conclusion that the expert report adequately demonstrated Devere’s qualifications as an expert.




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      4
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)




                    2006 WL 728068
      Only the Westlaw citation is currently available.
                                                                          MEMORANDUM OPINION
      SEE TX R RAP RULE 47.2 FOR DESIGNATION
             AND SIGNING OF OPINIONS.                        RICK STRANGE, Justice.
              MEMORANDUM OPINION                             *1 This is a medical malpractice action. Michael J.
               Court of Appeals of Texas,                    Dragun, M.D. and West Texas Urology filed a motion to
                       Eastland.                             dismiss contending that Kelly and Terry Kuykendall’s
                                                             expert report did not satisfy the requirements of
        Kelly KUYKENDALL and Husband, Terry                  TEX.REV.CIV. STAT. art. 4590i, § 13.01 (2001).1 The
                 Kuykendall, Appellants                      trial court granted appellees’ motion to dismiss and
                             v.                              denied appellants’ request for an extension of time to file
        Michael J. DRAGUN, M.D. and West Texas               an amended report. We find no error and affirm.
                    Urology, Appellees.

         No. 11-05-00230-CV. | March 23, 2006.


Synopsis                                                                               Facts
Background: Patient filed medical malpractice action
                                                             Kelly Kuykendall underwent a bilateral salphingo-
against surgeon who was brought in during surgery to
                                                             oophorectomy and a laparoscopic-assisted vaginal
address complications from perforation of patient’s
                                                             hysterectomy on June 24, 2002. The surgery was
bladder. The 142nd District Court, Midland County,
                                                             performed by Dr. Brady Locke. Kelly’s bladder was
granted surgeon’s motion to dismiss. Patient appealed.
                                                             perforated during the surgery. Dr. Dragun was contacted
                                                             and was asked to repair the injury. He performed a
                                                             laparotomy and was assisted in the procedure by Dr.
Holdings: The Court of Appeals, Rick Strange, J., held       Locke.
that
                                                             The original surgery was scheduled for two hours.
[1]
    expert report submitted by patient did not satisfy       Because of the bladder complication, the surgery lasted
statutory requirements, and                                  six hours. Appellants allege that Kelly’s peripheral nerves
                                                             were damaged during the extended surgery.
[2]
   trial court did not abuse its discretion when it denied
patient’s request for a 30-day grace period to amend         Appellants filed a medical malpractice action against Dr.
report.                                                      Dragun and other health care providers on May 29, 2003.
                                                             They timely filed the expert report and curriculum vitae
                                                             of Dr. Mearl A. Naponic. Appellees filed a motion to
Affirmed.                                                    dismiss, contending the expert report did not satisfy the
                                                             requirements of Article 4590i, section 13.01. Appellants
                                                             responded that Dr. Naponic’s expert report was sufficient
On Appeal from the 142nd District Court, Midland             and, alternatively, requested an Article 4590i, section
County, Texas, Trial Court Cause No. CV45114.                13.01(g) thirty-day extension. The trial court conducted a
                                                             hearing and granted appellees’ motion to dismiss and
Attorneys and Law Firms                                      denied appellants’ request for an extension.

Rick Dunbar, for Appellants.

Jack Tidwell, for Appellees.
                                                                                       Issues
Panel consists of WRIGHT, C.J., and McCALL, J., and
STRANGE, J.                                                  In two issues, appellants contend that their expert report
                                                             satisfies the requirements of Article 4590i, section 13.01

                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                              1
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



or, alternatively, that the trial court abused its discretion      not fulfill these two purposes. Nor can a report meet
by denying their request for an Article 4590i, section             these purposes and thus constitute a good-faith effort if
13.01(g) thirty-day grace period to amend their report.            it omits any of the statutory requirements. However, to
                                                                   avoid dismissal, a plaintiff need not present evidence in
                                                                   the report as if it were actually litigating the merits. The
                                                                   report can be informal in that the information in the
                                                                   report does not have to meet the same requirements as
                    Standard of Review                             the evidence offered in a summary-judgment
                                                                   proceeding or at trial. (citations omitted)
A trial court’s decision to dismiss a lawsuit because of an
inadequate expert report is reviewed under an abuse of           Courts have identified additional considerations when
discretion standard. Am. Transitional Care Ctrs. of Tex.,        multiple defendants are sued. In that instance, the expert
Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial         report must provide an explanation of how each defendant
court’s decision to grant or deny an Article 4590i, section      specifically breached the applicable standard of care and
13.01(g) grace period is also reviewed under an abuse of         how that breach caused or contributed to the cause of
discretion standard. Walker v. Gutierrez, 111 S.W.3d 56,         injury. Taylor v. Christus Spohn Health Sys. Corp., 169
62 (Tex.2003).                                                   S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.).

A trial court abuses its discretion if it acts in an arbitrary   That portion of Dr. Naponic’s expert report which
or unreasonable manner without reference to any guiding          addressed Dr. Dragun’s actions contained the following
rules or principles. Downer v. Aquamarine Operators,             language:
Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing
court is not allowed to substitute its judgment for that of        On June 24, 2002, Kelly Kuykendall underwent
the trial court when reviewing a discretionary decision.           bilateral salphingo-oophorectomy, as well as a
Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42            laparoscopic assisted vaginal hysterectomy. Theses
(Tex.1989). The mere fact that a trial court may decide a          [sic] surgical treatments were performed in an effort to
matter within its discretionary authority in a different           relieve pre-operative symptoms of pelvic pain,
manner than an appellate court in a similar circumstance           dysmenorrhea and menorrhagia and failed medical
does not demonstrate that an abuse of discretion has               management of same. The initial procedure scheduled
occurred. Downer, 701 S.W.2d at 241-42.                            for two hours was performed by Dr. Brady Locke and
                                                                   was complicated by an intra-operative injury to the
                                                                   bladder. The perforation of the bladder necessitated
                                                                   surgical repair; and, thus this two hour surgery evolved
                                                                   into a six hour surgery, involving a laparotomy to
    Does Dr. Naponic’s Report Satisfy Article 4590i?               repair an incision into the bladder of approximately
                                                                   eight to nine centimeters. This second surgery was
*2 [1] In Palacios, 46 S.W.3d at 878-79, the supreme court
                                                                   performed by Dr. Michael Dragun and assisted by Dr.
outlined the criteria for evaluating the efficiency of expert
                                                                   Brady Locke.
reports. Specifically, the court wrote:
                                                                   The standard of care for such procedures as described
  [T]he expert report must represent only a good-faith
                                                                   above, necessarily require[s] that the peripheral nerves
  effort to provide a fair summary of the expert’s
                                                                   in and adjacent to the operative site be identified and
  opinions. A report need not marshal all the plaintiff’s
                                                                   protected. This is particularly true when a self-retaining
  proof, but it must include the expert’s opinion on each
                                                                   retractor is used and the length of the surgery is
  of the elements identified in the statute. In setting out
                                                                   prolonged. Complications, including nerve injuries,
  the expert’s opinions on each of those elements, the
                                                                   from self-retaining retractors are well-known and well-
  report must provide enough information to fulfill two
                                                                   described in the relevant literature. Failing to properly
  purposes if it is to constitute a good-faith effort. First,
                                                                   pad the self-retaining retractor, failure to adequately
  the report must inform the defendant of the specific
                                                                   position the patient and/or leaning on the patient during
  conduct the plaintiff has called into question. Second,
                                                                   this prolonged surgery are the most likely cause of the
  and equally important, the report must provide a basis
                                                                   intra-operative injuries and complications suffered by
  for the trial court to conclude that the claims have
                                                                   Kelly Kuykendall and are below the accepted standard
  merit.
                                                                   of care for these procedures. As both Dr. Locke and Dr.
  A report that merely states the expert’s conclusions             Dragun performed the bladder repair, they shared the
  about the standard of care, breach, and causation does

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



  responsibility to protect Kelly Kuykendall against this         The supreme court’s holding in Palacios, 46 S.W.3d at
  injury.                                                         873, that a trial court’s decision to grant a motion to
                                                                  dismiss is subject to an abuse of discretion review,
*3 A fair summary is something less than a full statement         mandates that we provide trial courts with some deference
of the applicable standard of care and how it was                 when determining what constitutes a good faith effort to
breached. A fair summary must set out what care was               comply with the statute in a particular case. Because Dr.
expected but not given. Palacios, 46 S.W.3d at 880                Naponic’s report failed to provide specific information
(“[w]hether a defendant breached his or her duty to a             concerning Dr. Dragun’s conduct, because he assumed
patient cannot be determined absent specific information          the two doctors were equally responsible for Kelly’s
about what the defendant should have done differently”).          injury, and because Dr. Naponic relied upon assumptions
An expert report must show causation beyond mere                  to determine the “most likely” cause of her injury, we
conjecture. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,            hold the trial court did not abuse its discretion when it
52 (Tex.2002). Knowing what specific conduct the                  granted appellees’ motion to dismiss. Appellants’ first
plaintiff’s expert has called into question is critical to both   issue is overruled.
the defendant’s ability to prepare for trial and the trial
court’s ability to evaluate the viability of the plaintiff’s
claims. Palacios, 46 S.W.3d at 876-77. Dr. Naponic’s
report does not provide this level of information because
his analysis is premised on several assumptions and               Were Appellants Entitled To A Thirty-Day Extension To
because he fails to distinguish between the actions of Dr.                        Amend Their Report?
Locke and Dr. Dragun.
                                                                  *4 [2] Article 4590i, section 13.01(d) required claimants to
Dr. Naponic’s analysis is similar to a res ipsa approach.         furnish an expert report within 180 days after the claim
Because Kelly suffered from peripheral nerve damage and           was filed. Article 4590i, section 13.01(g) gave trial courts
because the relevant literature documents a connection            the discretion to provide a thirty-day grace period to file
between that injury and the failure to properly pad self-         an amended report if the failure to timely file an adequate
retaining retractors, improperly positioning the patient, or      report “was not intentional or the result of conscious
leaning on the patient, Dr. Naponic assumes that these are        indifference but was the result of an accident or mistake.”
the “most likely” causes of her injury. He assumes further
that Dr. Locke and Dr. Dragun are collectively                    In their response to appellees’ motion to dismiss,
responsible for one or more of these actions. 2                   appellants included an alternative request for a thirty-day
                                                                  extension based upon their belief that Dr. Naponic’s
There are several problems with this approach. First, Dr.         report was adequate and, if not, contended that their
Naponic’s report does not document that a self-retaining          failure to provide an adequate report was due to accident
retractor was even used or, if so, by whom. This is not a         or mistake and not an intentional act or conscious
question of mere semantics. Dr. Dragun cannot be held             indifference. Appellants’ request was supported by the
responsible for any actions taken before he arrived in the        testimony of their trial counsel who stated that he
operating room, nor can he be held responsible for                contacted Dr. Naponic based upon the referral of a
improperly using equipment that was never utilized.               general surgeon, that he provided Dr. Naponic with the
Knowing what Dr. Naponic alleges Dr. Locke did during             relevant records and caselaw, that they discussed this
the initial portion of the procedure and what Dr. Naponic         case, that Dr. Naponic indicated that it would be difficult
alleges happened during Dr. Dragun’s portion of the               to distinguish from the medical records which defendant
procedure are vital.                                              caused the intraoperative injuries absent an admission, but
                                                                  that Dr. Naponic informed him that all the health care
Second, even assuming Dr. Dragun used a self-retaining            providers shared a duty to protect Kelly. Counsel testified
retractor, Dr. Naponic did not document how it was                that he relied upon Dr. Naponic, who was a board-
padded or how it should have been padded. Third, the              certified obstetrician and gynecologist, to provide him
report does not document how Kelly was positioned at              with a sufficient report and that he believed Dr. Naponic
any point in time during her surgical procedure, nor how          had done so.
she should have been positioned during Dr. Dragun’s
procedure. Finally, the report provides no support for his        The Texas Supreme Court faced a similar situation in
hypothesis that Dr. Dragun leaned on Kelly beyond his             Walker, 111 S.W.3d at 56. There, as here, claimant’s
contention that this is frequently the cause of her type of       counsel mistakenly believed that his expert’s report was
injury.                                                           sufficient. The supreme court comprehensively reviewed
                                                                  intermediate court decisions on Article 4590i, section

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)



13.01(g) extensions, finding that some courts were                        records would contain information on the surgical
erroneously holding that any mistake of law was                           equipment utilized, the manner in which the patient was
sufficient to support an extension while others were                      positioned, and the surgery conducted. Because two
impermissibly applying a standard that precluded an                       different doctors operated on Kelly, their respective
extension because of a mistake of law. Id. at 63-64.                      records would provide information unique to each doctor
According to the supreme court, some-but not all-                         and their procedures. The trial court could have
mistakes of law may negate a finding of intentional                       reasonably concluded that in this case appellants had the
conduct or conscious indifference and, therefore, support                 ability to distinguish between the actions of the two
an extension. The distinction turns on the knowledge and                  doctors and determine what surgical equipment and
acts of the claimant. Id. at 64.                                          procedures were utilized and that their failure to do so
                                                                          precluded a thirty-day grace period.
The supreme court concluded that counsel’s belief that his
expert’s report was sufficient, despite clear statutory                   The cases decided since Walker indicate that the trial
requirement to the contrary, “does not establish a                        court’s decision to grant or deny a thirty-day grace period
‘sufficient excuse’ necessary to support a finding that a                 when counsel argues that his mistaken belief that a report
party made a mistake of law.” Id. at 64-65. This follows                  was sufficient constitutes a mistake of law, are afforded
because a medical malpractice claimant is charged with                    great deference due to their individual factual patterns.
knowledge of Article 4590i, section 13.01 and its                         Compare In re Zimmerman, 148 S.W.3d 214, 217
requirements. Id. Appellants distinguish Walker by                        (Tex.App.-Texarkana 2004, orig. pro-ceeding) (affirming
alleging it involved a report which was absent the relevant               the trial court’s decision to grant a thirty-day grace period
standard of care and how the defendants breached that                     based upon mistake of law) with Sandles v. Howerton,
standard. Appellants contend that, if their report is                     163 S.W.3d 829, 838 (Tex.App.-Dallas 2005, no
inadequate, it is not because of the absence of a critical                pet.)(affirming the trial court’s decision to not grant a
element but simply insufficient information.                              thirty-day grace period based upon a mistake of law).

*5 The trial court is best positioned to assess what                      We cannot say that the trial court abused its discretion
appellants knew and to evaluate their actions. The extent                 when it denied appellants’ request for a thirty-day grace
and quality of the information available to a medical-                    period. Appellants’ second issue is overruled.
malpractice claimant will vary from case to case. That
information directly impacts the report a good faith effort
will produce. We have found that the trial court did not
abuse its discretion when it held Dr. Naponic’s report was
insufficient because Dr. Naponic failed to distinguish                                              Conclusion
between the actions of the two doctors and because his
analysis relies heavily on assumption. During oral                        The trial court did not abuse its discretion when it granted
argument, appellants’ counsel pointed out that physicians                 appellees’ motion to dismiss and denied appellants’
are unlikely to admit to errors in their medical records                  request for a thirty-day grace period. The trial court’s
and, therefore, that one cannot expect doctors to                         judgment is affirmed.
affirmatively state that they leaned on their patient during
surgery. Even if we accept this as true, the medical

Footnotes
1      Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now
       governed by TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2005).
2      In Palacios, the supreme court noted that, as a general rule, res ipsa loquitur does not apply in medical malpractice cases. 46
       S.W.3d at 880. Consequently, an expert report must do more than simply assume that a health care provider is responsible for
       any surgical complication.




End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       4
Kuykendall v. Dragun, Not Reported in S.W.3d (2006)




             © 2015 Thomson Reuters. No claim to original U.S. Government Works.   5
Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)




                                                                   ON APPELLEES’ MOTION FOR REHEARING
                  300 S.W.3d 343
              Court of Appeals of Texas,                        Opinion by: REBECCA SIMMONS, Justice.
                    San Antonio.
                                                                The motion for rehearing filed by appellees Barbara
  REGENT CARE CENTER OF SAN ANTONIO II,                         Hargrave, Individually and as Executrix of the Estate of
 LTD. PARTNERSHIP d/b/a Regent Care Center of                   Dorothy Montgomery, and Vernon Lloyd Pierce,
   Oakwell Farms and RCCSA II, Inc., Appellant,                 Individually, is denied. This court’s opinion and judgment
                          v.                                    dated April 3, 2009, are withdrawn, and this opinion and
     Barbara HARGRAVE, Individually and as                      judgment are substituted.
  Executrix of the Estate of Dorothy Montgomery,
 and Vernon Lloyd Pierce, Individually, Appellees.              This case is on remand from the Texas Supreme Court.
                                                                See Regent Care Ctr. of San Antonio II, Ltd. P’ship v.
       No. 04–05–00274–CV. | Aug. 31, 2009.
                                                                Hargrave, 251 S.W.3d 517 (Tex.2008). On original
                                                                submission, we dismissed the appeal for lack of
Synopsis                                                        jurisdiction holding that this Court lacked subject matter
Background: Executrix of nursing home resident’s estate         jurisdiction to review the denial of the motion to dismiss
filed medical malpractice action against hospital. Hospital     and for sanctions which was rendered moot by the trial
motioned to dismiss based on inadequate expert report.          court’s subsequent nonsuit. This court, however, never
The 150th Judicial District Court, Bexar County, Lori           reached the merits of the appeal. On remand, the sole
Massey, J., denied hospital’s motion. Hospital appealed.        remaining issue is the adequacy of the expert report.

                                                                Appellants Regent Care Centers of San Antonio II,
                                                                Limited Partnership d/b/a Regent Care Center of Oakwell
[Holding:] The Court of Appeals, Rebecca Simmons, J.,           Farms and RCCSA II, Inc. (Regent Care) appeal the *345
held that expert report did not contain necessary elements      trial court’s denial of its motion to dismiss based on an
of causation.                                                   inadequate expert report under former article 4590i of the
                                                                Texas Revised Civil Statutes. Appellees Barbara
                                                                Hargrave, Individually and as Executrix of the Estate of
Reversed and remanded.                                          Dorothy Montgomery and Vernon Lloyd Pierce,
                                                                Individually (collectively Hargrave) contend that the
Opinion, 2009 WL 902233, superseded.                            expert report, taken in its entirety, provided sufficient
                                                                information for the trial court to determine that the
See also 251 S.W.3d 517.                                        allegations against Regent Care had merit. On remand, we
                                                                hold the trial court erred in denying Regent Care’s motion
                                                                to dismiss in accordance with the requirements set forth in
Attorneys and Law Firms                                         article 4590i. See Act of May 30, 1977, 65th Leg., R.S.,
                                                                ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985,
*344 D. Ann Comerio, Law Offices of Ann Comerio, San
                                                                986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch.
Antonio, TX, for Appellant.
                                                                204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
Alex M. Miller, Mikal C. Watts, Francisco Guerra, IV,
Watts Guerra Craft LLP, San Antonio, TX, for Appellee.

Sitting: Chief Justice ALMA L. LÓPEZ1, SANDEE
                                                                             FACTUAL BACKGROUND
BRYAN MARION, Justice, REBECCA SIMMONS,
Justice.                                                        On November 15, 2000, Dr. Rafael Parra performed back
                                                                surgery on seventy-two year old Dorothy Montgomery.
                                                                Approximately six days later, Mrs. Montgomery was
                                                                discharged for rehabilitation into the custody of Regent
                                                                Care. On December 18, 2000, Mrs. Montgomery was
                       OPINION                                  transferred from Regent Care back to the hospital with
                                                                acute renal failure. By the time of her transfer, Mrs.
                                                                Montgomery was suffering from a staphylococci infection
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



and was septic due to an open and draining surgical             standards, and (3) the causal relationship between that
wound on her back. Mrs. Montgomery was transferred              failure and the injury, harm, or damages claimed. See Act
back and forth between the hospital and Regent Care             of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec.
several times before her death on February 18, 2001.            13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed
                                                                2003). If a plaintiff fails to comply with section 13.01(d),
Hargrave filed a medical malpractice lawsuit against two        a defendant may seek sanctions pursuant to section
physicians and Regent Care. In order to comply with the         13.01(e) and the trial court shall grant the motion to
Texas Medical Liability and Insurance Improvement Act           dismiss with prejudice and award costs and attorneys’
(the Act), Hargrave timely filed an expert report prepared      fees to the defendant. See id. sec. 13.01(e), (f), 1995 Tex.
by Dr. Christopher M. Davey. See id.2 Regent Care               Gen. Laws 985, 986. The dispositive question is whether
subsequently moved to dismiss the lawsuit, with                 the expert report represents a good-faith effort to comply
prejudice, claiming the report did not comply with the          with section 13.01(r)(6). Bowie Mem’l Hosp. v. Wright,
statutory requirements. See id. sec. 13.01(e), (l ), (r)(6),    79 S.W.3d 48, 51–52 (Tex.2002) (citing Act of May 30,
1995 Tex. Gen. Laws 985, 986–87. The trial court denied         1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(r)(6), 1995
Regent Care’s motions to dismiss, and this appeal               Tex. Gen. Laws 985, 987 (repealed 2003)).
followed.
                                                                [3] [4] [5] [6] [7]
                                                                              To constitute a good-faith effort to establish
                                                                the causal relationship element under the Act, the expert
                                                                “report need not marshal all the plaintiff’s proof,” or
                                                                present evidence as if the plaintiff was actually litigating
         ADEQUACY OF EXPERT REPORT                              the merits. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53;
                                                                accord Palacios, 46 S.W.3d at 878. No magic words such
Regent Care asserts that the trial court abused its             as “reasonable medical probability” are required for the
discretion in denying Regent Care’s Motion to Dismiss           report to comply with the Act. Bowie Mem’l Hosp., 79
with Prejudice and for Statutory Sanctions and the motion       S.W.3d at 53. The report must (1) “inform the defendant
to reconsider the same because the expert report                of the specific conduct the plaintiff has called into
inadequately explains causation. Hargrave contends the          question,” and (2) “provide a basis for the trial court to
expert report contains sufficient information regarding         conclude that the claims have merit.” Palacios, 46 S.W.3d
causation for the court to have reasonably concluded the        at 879. A report that merely sets forth the expert’s
claims against Regent Care had merit.                           conclusions is insufficient to satisfy these two purposes.
                                                                Bowie Mem’l Hosp., 79 S.W.3d at 53. In assessing the
                                                                adequacy of the report, the trial court may not make
                                                                inferences and is confined to the four corners of the
A. Standard of Review
[1]                                                             report. Id.
    The standard of review of a trial court’s order either
dismissing or refusing to dismiss a medical malpractice
claim for failure to comply with the expert report
provisions of section 13.01(d) of article 4590i is abuse of     C. Causation
discretion. See Walker v. Gutierrez, 111 S.W.3d 56, 62          Regent Care argues that the expert report filed by Dr.
(Tex.2003); Am. Transitional Care Ctrs. of Tex., Inc. v.        Davey is inadequate and, consequently, dismissal was
Palacios, 46 S.W.3d 873, 877 (Tex.2001). An abuse of            mandatory. Regent Care challenges only the causation
discretion occurs when a trial court acts arbitrarily or        element of the report, and contends the report does not
unreasonably and “without reference to any guiding rules        meet the statutory requirements because it is conclusory
or principles.” Walker, 111 S.W.3d at 62. A clear failure       and based upon mere conjecture and possibility.3 In
by the trial court to analyze or apply the law correctly will   particular, Regent Care complains that Dr. Davey’s
constitute an abuse of discretion. Baylor Univ. Med. *346       report: (1) contains conclusory statements as to causation
Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas             and fails to link the alleged breaches to the injuries and
2007, pet. denied).                                             damages alleged, and (2) fails to address the numerous
                                                                allegations contained in the First Amended Original
                                                                Petition. See Act of May 30, 1977, 65th Leg., R.S., ch.
                                                                817, § 1, sec. 13.01(l ), 1995 Tex. Gen. Laws 985, 987
B. Sufficiency of the Expert Report
[2]                                                             (repealed 2003).
    The Act defines an expert report as a written report by
an expert that provides a fair summary of the expert’s          [8] [9]
                                                                     As to causation, in the concluding paragraph, Dr.
opinions regarding: (1) applicable standards of care, (2)
                                                                Davey opines “the Breach of the Standard of Care as set
the manner in which the care rendered failed to meet the
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Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



forth for each Physician and[/]or Nursing Home in this          and care provided by Dr. Wilcox in December. See
report was a proximate cause of the death of Dorothy            Costello v. Christus Santa Rosa Health Care Corp., 141
Montgomery.” Regent Care argues that the one sentence           S.W.3d 245, 247 (Tex.App.–San Antonio 2004, no pet.)
conclusion on causation is insufficient to satisfy article      (criticizing the expert report as insufficient because it
4590i. We agree. While a claimant is not required to            does not “explain the causal connection between [the
conclusively prove her case through a preliminary expert        hospital’s] claimed omissions (failed to appropriately
report, the report may not merely state conclusions *347        triage and evaluate) and [the patient’s] death”). Dr.
about any of the elements. Palacios, 46 S.W.3d at 879. “        Davey’s opinion fails to articulate facts connecting the
‘[T]he expert must explain the basis of his statements to       criticized deviations from the standard of care by Regent
link his conclusions to the facts.’ ” Bowie Mem’l Hosp.,        Care with Mrs. Montgomery’s dehydration, sepsis, or
79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d           death.
882, 890 (Tex.1999)). Bowie cautions that no “ ‘magical
words’ ” are required to establish the necessary causal         Bowie cautions that no “ ‘magical words’ ” are required to
link. See Bowie Mem’l Hosp., 79 S.W.3d at 53. But, to           establish the necessary causal link. See Bowie Mem’l
avoid being conclusory, “the expert must explain the basis      Hosp., 79 S.W.3d at 53. But, to avoid being conclusory,
of his statements to link his conclusions to the facts.”        “the expert must explain the basis of his statements to link
Bowie, 79 S.W.3d at 52 (emphasis added) (quoting Earle          his conclusions to the facts.” Bowie, 79 S.W.3d at 52
v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)).                    (emphasis added) (quoting *348 Earle v. Ratliff, 998
                                                                S.W.2d 882, 890 (Tex.1999)). Dr. Davey’s opinion
Hargrave responds that the report provides “several             contains no information about the cause of Mrs.
statements about causation of Mrs. Montgomery’s injuries        Montgomery’s dehydration; we are, therefore, left to infer
(renal failure and sepsis) and eventual death, and provides     that because Mrs. Montgomery presented at the hospital
factual information to allow the court to understand his        with severe dehydration, Regent Care violated a standard
causation opinions.” Specifically Hargrave identifies the       that caused the dehydration. See Villa v. Hargrove, 110
following two standards of care breached by Regent Care:        S.W.3d 74, 79 (Tex.App.–San Antonio 2003, pet. denied)
                                                                (noting that the expert report’s statement that defendants
     (i) The nursing home staff did not adequately and          should have “ ‘recognized’ imminent sepsis and
     timely inform the physician of the increasing amount       ‘hospitalized’ [plaintiff] does not explain how each failed
     of drainage from her back incision in December             to meet the explicable standard of care” and is
     2000, which reasonable staff in a similar situation        conclusory). Accordingly, we conclude that Dr. Davey’s
     would do[, and;]                                           expert report fails to establish a causal relationship
                                                                between the alleged departure from a standard of care and
     (ii) The nursing home allowed [Mrs. Montgomery]            Mrs. Montgomery’s dehydration, sepsis, or death.
     to become so dehydrated that she actually went into
     renal failure by 12/18/00. Her initial lab results         Dr. Davey’s expert report required the trial court to infer
     indicate severe dehydration, which most likely             causation, and under the four corners rule, the trial court
     occurred over several days and should have been            is prohibited from doing so. See Bowie Mem’l Hosp., 79
     physically apparent—i.e., not taking fluids, dry           S.W.3d at 52. It, therefore, follows that Dr. Davey’s
     tongue, increasing lethargy. A reasonable nursing          report was deficient as to causation and “the report does
     home in a similar situation would have noted her           not represent a good-faith effort to comply with the
     decline and alerted the physician much earlier.            [statutory requirements].” See id. at 51. Because we hold
                                                                the expert report was inadequate as to causation, we need
In essence, Hargrave criticizes the nursing staff for failing   not address the allegations concerning negligence. See
to inform the doctors about Mrs. Montgomery’s increased         TEX.R.APP. P. 47.1 (requiring concise opinions
drainage and for allowing her to become dehydrated.             addressing only those issues “necessary to find
                                                                disposition of the appeal”).
Dr. Davey’s report provides that: “the cause of the renal
failure was most likely dehydration, as it resolved just
with fluid replacement” (emphasis added) thereby
refuting dehydration as the cause of Mrs. Montgomery’s
death. Additionally, he fails to link Regent Care’s failure                           CONCLUSION
to timely inform a physician of increased drainage in
December 2000 to Mrs. Montgomery’s subsequent death             The expert report fails to link Regent Care to Mrs.
in February 2001 due to sepsis.4 This is particularly true      Montgomery’s dehydration, sepsis, or subsequent death;
considering Mrs. Montgomery’s admission to the hospital         thus, it does not contain the necessary elements of

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Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)



causation. Accordingly, because the expert report is                      therefore, reverse the order of the trial court and remand
inadequate, the trial court abused its discretion in failing              this matter to the trial court for further proceedings
to dismiss the case against Regent Care, with prejudice,                  consistent with this opinion.
and award reasonable attorney fees. See Act of May 30,
1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(e), (l ),
1995 Tex. Gen. Laws 985, 986–87 (repealed 2003). We,

Footnotes
1      Chief Justice Alma L. López, retired, not participating.

2      All health care liability claims filed before September 1, 2003, must comply with section 13.01(d) of article 4590i. See Act of
       May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003,
       78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
3      Because Regent Care does not dispute that the expert report fairly summarizes the elements of applicable standard of care and
       breach, we review Dr. Davey’s report as to the causation element only.
4      Although Hargrave suggests that Dr. Davey’s report includes several statements regarding causation of “Mrs. Montgomery’s
       injuries (renal failure and sepsis) and eventual death,” the report clearly provides that Mrs. Montgomery “died of sepsis under
       palliative Hospice care 2/18/01.”




End of Document                                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       4
Shenoy v. Jean, Not Reported in S.W.3d (2011)




                                                            approximately three weeks after gallbladder surgery as a
                                                            result of hypoxic encephalopathy. Dr. Zuniga performed
                2011 WL 6938538
  Only the Westlaw citation is currently available.         the surgery. Dr. Shenoy, a cardiologist, cleared Jean for
                                                            the surgery.
  SEE TX R RAP RULE 47.2 FOR DESIGNATION
         AND SIGNING OF OPINIONS.                           In two issues, Shenoy contends that the trial court abused
                                                            its discretion in denying his motion to dismiss because
           MEMORANDUM OPINION                               Jean’s expert, Dr. Mazzei, an anesthesiologist, is not
            Court of Appeals of Texas,                      qualified to opine on the applicable standard of care for a
              Houston (1st Dist.).                          cardiologist, breach of that standard or causation, and his
                                                            report does not adequately address standard of care,
  Vasudev SHENOY and Dario Zuniga, Appellant                breach, or causation. In his sole issue, Zuniga contends
                          v.                                that the trial court abused its discretion because (1)
 Penny JEAN, Individually, and as Wrongful Death            Mazzei is not qualified to offer an opinion on the
 Beneficiary of Willie Ann Jean, Deceased, and on           applicable standard of care for a surgeon, (2) the report
 Behalf of the Estate of Willie Ann Jean, Deceased,         does not address how Zuniga caused Willie Ann’s death
 and on Behalf of all Wrongful Death Beneficiaries          beyond mere conclusions, and (3) it is “impermissibly
      of Willie Ann Jean, Deceased, Appellee.               cumulative”—that is, it does not adequately identify the
                                                            particular breaches of the standard of care or causation
       No. 01–10–01116–CV. | Dec. 29, 2011.                 with respect to each separate defendant. We reverse and
                                                            render an order dismissing the claims against Shenoy and
On Appeal from the 151st District Court, Harris County,     Zuniga.
Texas, Trial Court Case No.2010–28302.

Attorneys and Law Firms

John G. Myers, Dee L. Dawson, Myers Doyle, Houston,                               Background
for Appellant Vasudev Shenoy.
                                                            Mazzei’s expert report provides the background facts in
Robert G. Smith, David O. Cluck, Scott B. Novak,            this case. The medical records are not before us, and we
Lorance & Thompson, P.C., Houston, for Appellant Dario      accept the factual statements for the limited purpose of
Zuniga.                                                     this appeal.2
Monica C. Vaughan, for Penny Jean, Individually, and as
                                                            Willie Ann Jean, age 57, was taken by ambulance to the
Wrongful Death Beneficiary of Willie Ann Jean,
                                                            emergency room of Doctor’s Hospital on February
Deceased, and on Behalf of the Estate of Willie Ann Jean,
                                                            15,2008, complaining of abdominal pain, vomiting, chest
Deceased, and on Behalf of all Wrongful Death
                                                            pain of three hours’ duration, and difficulty breathing. As
Beneficiaries of Willie Ann Jean, Deceased.
                                                            part of her admission, Willie Ann gave an extensive
Panel consists of Chief Justice RADACK and Justices         medical history that included diabetes, hypertension,
SHARP and BROWN.                                            angina, surgery for a brain aneurysm, coronary artery
                                                            disease, chronic obstructive pulmonary disease,
                                                            hypercholesterolemia, and a prior myocardial infarction.
                                                            Willie Ann reported she had experienced abdominal and
                                                            chest pain for years without treatment. Based on a
                                                            physical examination and ultrasound, the emergency
             MEMORANDUM OPINION                             room physician, Dr. Mireles, determined that she had
                                                            polyps and diagnosed symptomatic gallstones in her
HARVEY BROWN, Justice.                                      gallbladder. He recommended that she undergo surgery to
                                                            remove her gallbladder. He ordered a surgical
*1 In this interlocutory appeal,1 Dr. Shenoy and Dr.        consultation and a cardiology consultation.
Zuniga appeal the trial court’s orders denying their
motion to dismiss Penny Jean’s healthcare liability claim   Shenoy, a cardiologist, saw her that same day, and noted
for failure to serve an adequate expert report. See TEX.    that Willie Ann had a two- to three-year history of
CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West                epigastric and right upper quadrant abdominal pain as
2011). Penny’s mother, Willie Ann Jean, died
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
Shenoy v. Jean, Not Reported in S.W.3d (2011)



well as a history of a previous myocardial infarction and a
cereberovascular accident (i.e., a stroke). Shenoy noted      Penny filed a wrongful death medical malpractice suit
that Willie Ann had suffered chest pain, accompanied by       against Doctor’s Hospital, Mireles, Amin–Sankar,
shortness of breath and sweating for four to six hours        Shenoy, and Zuniga.3 Penny alleged that Shenoy and
earlier that day. Willie Ann also had an abnormal             Zuniga were negligent in clearing her mother for surgery.
electrocardiogram (EKG). Shenoy’s diagnosis was that          Specifically, Penny alleged that there was no emergency
Willie Ann had sufferedan acute myocardial infarction,        or urgent reason to remove her mother’s gallbladder and
symptomatic gallstones, hypertension, and diabetes.           that her mother had experienced abdominal and chest pain
                                                              for years without treatment. In addition, Willie Ann had
*2 Zuniga, a surgeon, performed the surgical consultation     suffered an acute myocardial infarction before the
three days after her initial admission, on February 18,       gallbladder surgery and had a history of numerous health
2008. Zuniga confirmed the presence of gallstones,            problems. Although she was stable, her history created
diagnosed inflammation of the gallbladder, and cleared        additional risks that made her a poor candidate for
Willie Ann for surgery to remove her gallbladder the next     surgery, and therefore Shenoy and Zuniga negligently
day, February 19, subject to a cardiology assessment. Dr.     cleared Willie Ann for the surgery.
Shenoy saw Willie Ann again on February 18. A nuclear
test was negative for ischemia. Shenoy also ordered an        *3 Penny timely served an expert report from Mazzei, an
EKG, the results of which are included in Mazzei’s report     anesthesiologist.4 Mazzei’s report focused primarily on
but the significance of which are not explained. Shenoy       the anesthesiologist, Amin–Sankar. Concerning Shenoy
cleared Willie Ann for the gallbladder surgery.               and Zuniga, Mazzei stated that if Willie Ann “had not
                                                              undergone elective surgery on February 19, 2008, she
Dr. Amin–Sankar, an anesthesiologist, performed a             would not have experienced the respiratory arrests that
preoperative anesthesia assessment on February 19. He         resulted from her extubation and she would have, in all
noted Willie Ann’s past medical history, including her        probability, survived.”
acute myocardial infarction and abnormal EKG. Amin–
Sankar cleared Willie Ann for surgery.                        Concerning Amin–Sankar, Mazzei’s report states, “In
                                                              reasonable medical probability, if Ms. Jean had not been
On February 19, 2008, Zuniga performed the surgery. The       prematurely extubated, she would not have had the
surgery was an “uneventful” procedure. After leaving the      increased demands placed on her body which caused her
post-anesthesia careunit (PACU), Willie Ann was to be         subsequent respiratory arrest, anoxic brain injury and
sent to the intensive care unit because she had fluctuating   death.” He further explained in his general discussion of
oxygen saturation levels, inadequate ventilation, and         causation that the anesthesiologist should have been
shallowness of breath. Shortly thereafter, she was            aware of the risks of premature extubation. A fair reading
transported back to the PACU and was placed on a              of Mazzei’s report is that the premature extubation was
ventilator. According to Mazzei’s report, Amin–Sankar         the immediate cause of death:
prematurely extubated Willie Ann ten minutes
later.Within a few minutes, Willie Ann was in respiratory                 The time it takes for a patient’s
arrest. She received CPR and medications, and Amin–                       anesthesia effect to lessen enough
Sankarreintubated her.                                                    for them to be able to breathe
                                                                          independently varies from patient
Thirty minutes later, Willie Ann was returned to the ICU.                 to patient and is affected by a
According to Mazzei’s report, Jean became “agitated” and                  patient’s      physiology         and
had trouble with the ventilator. She extubated herself and                underlying disease processes. For a
suffered a second respiratory arrest. She was re-intubated                patient like Ms. Jean who had
and given medications. An EEG the following day                           recently suffered a MI, it should
showed possible hypoxic encephalopathy—brain damage                       have been expected that it would
caused by lack of oxygen. A follow-up EEG the next day                    take her a significant period of time
also indicated hypoxic encephalopathy. Mazzei’s report                    before she was capable of being
does not discuss whether the EEGs differentiate between                   extubated to breathe on her own.
any damage caused by the first extubation and arrest and                  This was not taken into account nor
the second extubation and arrest. Willie Ann was                          was her clinical picture when she
unresponsive to stimuli, including painful stimuli. On                    was untimely extubated [by the
February 25, Willie Ann was transferred to another                        anesthesiologist]. This caused her
facility for long-term care. She died on March 5, 2008 due                to suffer a respiratory arrest which
to the hypoxic encephalopathy.                                            further stressed Ms. Jean’s ability
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 2
Shenoy v. Jean, Not Reported in S.W.3d (2011)



            to recover from surgery and lead to
            another respiratory arrest with
            anoxic encephalopathy and death....                I. Chapter 74 expert report requirements
            When Ms. Jean extubated herself,                   Pursuant to section 74.351, medical-malpractice plaintiffs
            the failure to address her increasing              must provide each defendant physician and health care
            respiratory distress resulted in a                 provider with an expert report or voluntarily nonsuit the
            subsequent       respiratory    arrest             action. Id. If a claimant timely furnishes an expert report,
            causing the anoxic encephalopathy                  a defendant may file a motion challenging the report’s
            which lead to her death.                           adequacy. Id. The trial court shall grant the motion only if
                                                               it appears, after hearing, that the report does not represent
Shenoy and Zuniga moved to dismiss, asserting that the         a good faith effort to comply with the statutory definition
report was inadequate to them. The trial court granted         of an expert report. See id. § 74.351(l ). The statute
Penny an opportunity to amend the report. After receiving      defines an expert report as a written report by an expert
the amended report, Shenoy and Zuniga again moved to           that provides, as to each defendant, a fair summary of the
dismiss due to inadequacies in the report. The trial court     expert’s opinions, as of the date of the report, regarding:
denied the motions to dismiss, and this interlocutory          (1) the applicable standards of care; (2) the manner in
appeal followed.                                               which the care provided failed to meet the standards; and
                                                               (3) the causal relationship between that failure and the
                                                               injury, harm, or damages claimed. See id. § 74.351(r)(6);
                                                               Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 85859
                                                               (Tex.App.-Houston [1st Dist .] 2006, no pet.).
                   Standard of Review
                                                               Although the report need not marshal all the plaintiff’s
We review a trial court’s ruling on a motion to dismiss a      proof, it must include the expert’s opinions on the three
healthcare liability lawsuit pursuant to Chapter 74 of the     statutory elements—standard of care, breach, and
Texas Civil Practice and Remedies Code under an abuse          causation. See Palacios, 46 S.W.3d at 878; Gray, 189
of discretion standard. See Am. Transitional Care Ctrs. of     S.W.3d at 859. In detailing these elements, the report
Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001)          must provide enough information to fulfill two purposes if
(reviewing dismissal under predecessor statute, section        it is to constitute a good faith effort: first, it must inform
13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232,      the defendant of the specific conduct the plaintiff has
233 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial      called into question, and, second, it must provide a basis
court abuses its discretion if it acts in an arbitrary or      for the trial court to conclude that the claims have merit.
unreasonable manner without reference to guiding rules         Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011)
or principles or if it clearly fails to analyze or apply the   (citing Palacios, 46 S.W.3d at 879). A report that merely
law correctly. Runcie, 274 S.W.3d at 232. In reviewing         states the expert’s conclusions as to the standard of care,
whether an expert report complies with Chapter 74, we          breach, and causation does not fulfill these two purposes.
evaluate whether the report “represents a good-faith           Id. “ ‘[T]he expert must explain the basis of his
effort” to comply with the statute. Strom v. Mem’l             statements and link his conclusions to the facts.’ “ Wright,
Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.-             79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d
Houston [1st Dist.] 2003, pet. denied). In making this         882, 890 (Tex.1999)). Furthermore, in assessing the
evaluation, we must look only at the information               report’s sufficiency, the trial court may not draw any
contained within the four corners of the report. Bowie         inferences, and instead must rely exclusively on the
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002).            information contained within the report’s four corners.
                                                               See Scoresby, 346 S.W.3d at 556 (citing Palacios, 46
                                                               S.W.3d at 878).


           Adequacy of Dr. Mazzei’s report
                                                               II. Adequacy of report concerning causation
*4 In their respective appeals, Shenoy and Zuniga attack       Within his second issue, Shenoy contends that Mazzei’s
various aspects of the adequacy of Mazzei’s report,            report does not adequately address causation of Jean’s
asserting it fails to meet the requirements of section         injuries as a result of any negligence by Shenoy. As part
74.351 of the Texas Civil Practice and Remedies Code.          of his sole issue, Zuniga similarly argues that the report is
See TEX. CIV. PRAC. & REM.CODE § 74.351(a).                    inadequate in its statement of causation for his alleged
                                                               malpractice.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     3
Shenoy v. Jean, Not Reported in S.W.3d (2011)



                                                               In the “Causation” section, the report further states:
*5 An expert report must include a fair summary of the
causal relationship between the defendant’s failure to                      Ms. Jean was a patient who was
meet the appropriate standard of care and the injury,                       still recovering from her MI who
harm, or damages claimed. TEX. CIV. PRAC. &                                 never should have undergone
REM.CODE ANN. § 74.351(r)(6). An expert cannot                              elective surgery. By continuing to
merely state his conclusions or “provide insight” about                     recommend        the    gallbladder
the plaintiffs’ claims, but must instead “explain the basis                 removal surgery, clearing her for
of his statements to link his conclusions to the facts.”                    surgery and performing surgery,
Wright, 79 S.W.3d at 52.In explaining causation, the                        Ms. Jean’s healthcare providers
report must explain how the physician’s conduct caused                      breached and violated the standards
the plaintiff’s injuries. Id. at 53.                                        of care as set forth above and
                                                                            proximately caused her death.

                                                               Finally, Mazzei states for a patient like Willie Ann “it
A. Assertions in Mazzei’s expert report regarding              should have been expected that it would take her a
causation                                                      significant period of time before she was capable of being
Mazzei’s report asserts that the applicable standard of        extubated to breathe on her own .”
care breached by Shenoy included the responsibility to
consider all of Willie Ann’s co-morbidities because these
conditions placed Willie Ann “at an unacceptably high
risk for complications from surgery and anesthesia.” The       B. Adequacy of the report concerning Shenoy
report identifies two risks from the surgery and               *6 Mazzei’s report states that the medical conditions that
anesthesia: (1) the stresses placed upon the cardiovascular    rendered Willie Ann unfit for surgery caused the
and respiratory system during surgery and anesthesia and       complications that arose when she was extubated (“these
(2) the depression of the central nervous system and the       complications occurred because of the medical
resulting risk of “experiencing cardiovascular and             conditions”). What he fails to do is provide a factual
respiratory problems.” It also generally states that a         underpinning for that conclusion explaining why or how
patient’s medical history may increase these risks. It does    this occurred and whether it was all her medical
not, however, quantify or otherwise describe the               conditions listed in his report or her myocardial infarction
magnitude of risk for respiratory problems for a person        in particular that made the risk unacceptable and caused
undergoing this surgery with normal health or compare          her respiratory arrest. These omissions make the report
that risk to the risk for a person with pre-existing medical   conclusory and deficient for purposes of section 74.351.
conditions like Willie Ann’s. According to the report,
these risks are addressed by intubating the patient “so the
anesthesiologist can ventilate the patients while their
central nervous system is depressed” and that intubation       1. Expert reports cannot be conclusory to satisfy section
normally continues “until the patient is able to again         74.351.
breathe on [his] own.” The report continues:                   An opinion on causation stated without the underlying
                                                               facts is conclusory. Jelinek v. Casas, 328 S.W.3d 526,
            .... Although complications arose as               536 (Tex.2010); Arkoma Basin Exploration Co., Inc. v.
            Ms. Jean was extubated following                   FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32
            surgery,     these     complications               (Tex.2008). A conclusory opinion is not probative. City of
            occurred because of the medical                    San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009);
            conditions that should have lead                   see Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636
            Dr. Shenoy to conclude that Ms.                    F.3d 874, 881 (7th Cir.2011) (stating that mere
            Jean was not an appropriate                        conclusions are useless to the court).
            surgical candidate. If Ms. Jean had
            not undergone elective surgery on                  This rule is not a mere procedural hurdle. Juries—or in
            February 19, 2008, she would not                   the case of expert reports, judges—are often confronted
            have experienced the respiratory                   with conflicting expert testimony. One expert may testify
            arrests that resulted from her                     that X caused the plaintiff’s injuries while a different
            extubation and she would have, in                  expert may testify that X did not cause the plaintiff’s
            all probability, survived.                         injuries. The factfinder typically lacks the expertise
                                                               necessary to form an opinion without expert assistance—

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Shenoy v. Jean, Not Reported in S.W.3d (2011)



this is why expert testimony is admitted in the first place.    In Gray, this court held that the expert report contained a
See TEX.R. EVID. 702. It is the expert’s explanation of         conclusory statement concerning causation. 189 S.W.3d
“how” and “why” causation exists that allows the                at 860. The report stated that “[t]he failure to monitor and
factfinder to weigh the credibility of the expert’s opinion     detect the malpositioned left knee resulted in a dislocated
and, when expert opinions conflict, to decide which             left patella, severe pain and suffering, and subsequent
testimony to disregard. Cf. In re Christus Spohn Hosp.          medical treatment.” Id . at 858. Like the Supreme Court in
Kleberg, 222 S.W.3d 434, 440 (Tex.2007) (detailing              Jelinek, this court faulted the causation opinion for failing
reasons why it is essential that the jury have access to the    to “convincingly tie the alleged departure from the
facts and data underlying an expert’s testimony in order        standard of care to specific facts of the case.” Id. at 860.
“to accurately assess the testimony’s worth.”). With
respect to expert reports in healthcare liability claims, the
expert’s explanation is what allows the trial court to
determine whether the claim has merit. See Jelinek, 328         2. Mazzei’s report was conclusory on the issue of
S.W.3d at 539; see also Scoresby, 346 S.W.3d at 552             causation
(observing that Legislature enacted expert report               Mazzei’s causation opinion regarding Shenoy’s decision
requirement to elicit expert opinions at an early stage of      to clear Willie Ann for surgery was conclusory. Although
the litigation to allow the trial court to determine that a     Mazzei’s report states that anesthesia depresses the
basis exists for concluding that the claims have merit).        respiratory system and places stress on the heart, the
Expert testimony that merely states a final conclusion on       report does not state that Willie Ann’s history of heart
an essential element of a cause of action—such as               problems or other conditions somehow made her more
causation—without providing a factual basis for that            likely to suffer respiratory arrest after premature
conclusion does not aid the jury in its role as factfinder      extubation than a person without those medical
but, rather, supplants it. This, an expert may not do. See      conditions. It does not state that her risks for the
Greenberg Traurig of N.Y., P.C.v. Moody, 161 S.W.3d             complications that she experienced—respiratory arrest—
56, 97 (Tex.App.-Houston [14th Dist.] 2004, no pet.)            were enhanced because of her medical conditions. The
(“Expert testimony is admissible to aid the jury in its         report does generally discuss why Willie Ann’s other
decision, but it may not supplant the jury’s decision.”).       conditions affected her suitability for surgery, but does
Similarly, an expert report that merely asserts that a          not link her medical conditions to the complication she
defendant physician’s breach caused the plaintiff’s injury      experienced, respiratory arrest. It recognizes that a
without providing a factual basis does not provide the trial    depressed central nervous system and the resulting risk of
court with the information necessary to evaluate the            respiratory problems are normal byproducts of anesthesia
merits of the plaintiff’s claim. See Jelinek, 328 S.W.3d at     for even a person with normal health. In other words,
529.                                                            Mazzei’s report shows that the surgery itself created the
                                                                risk and does not state how or why Willie Ann’s pre-
*7 The requirement that the expert’s opinion must not be        existing conditions changed those risks except in
conclusory applies not only to trial testimony, but to          conclusory terms. The report also states that those risks
expert reports required by section 74.351(a). See Jelinek,      can be addressed by leaving her intubated for “a
328 S.W.3d at 539–40; Wright, 79 S.W.3d at 53.In                significant period of time” before extubation. Mazzei’s
Jelinek, the Texas Supreme Court found the trial court          report makes it clear that he believes that the premature
abused its discretion in denying a motion to dismiss            extubation was the immediate cause of her death.
because the expert’s opinion on causation was conclusory.
328 S.W.3d at 539–40. The expert’s report stated that           *8 A report may be sufficient if it states a chain of events
“[the defendant’s] breach of the appropriate standard of        that begin with a health care provider’s negligence and
care in ‘reasonable medical probability, resulted in a          end in a personal injury. See Patel v. Williams, 237
prolonged hospital course and increased pain and                S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2007,
suffering being experienced by [the plaintiff].’ “ Id. at       no pet.); see also Engh v. Reardon, No. 01–09–00017–
539. The Court emphasized, “[T]he report says nothing           CV, 2010 WL 4484022, at *8 (Tex.App.-Houston [1st
more regarding causation.” Id. The Court faulted the            Dist.] Nov. 10, 2010, no pet.) (mem.op.). But neither case
report for offering no explanation “tying the conclusion to     involved an event as remote as that involved here.
the facts” or of “how and why the breach caused the
injury based on the facts presented.” Id. at 539–40. This is    In Patel, the Fourteenth Court of Appeals held that an
precisely the information missing here: the how and the         expert report sufficiently set forth causation when it
why.                                                            presented a chain of events beginning with an allegedly
                                                                negligent prescription and ending with the patient’s death.
                                                                Patel, 237 S.W.3d at 905–06. Patel prescribed Williams

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     5
Shenoy v. Jean, Not Reported in S.W.3d (2011)



an anti-dementia drug. Id. at 903. The report explained        cause of Willie Ann’s death if all that is necessary is for
that the drug was not FDA-approved for patients with           an event to have preceded the injury.
Williams’s ailment and that known side-effects of the
drug included restlessness or a need to keep moving. Id.       *9 To establish cause in fact, Mazzei had to discuss why
Williams’s family withdrew consent for the drug, but           the act or omission was a substantial factor in causing the
Patel continued to prescribe it. Id. Williams was being fed    injury and without which the harm would not have
via feeding tube, and allegedly due to the restlessness        occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551
from the drug, she removed the tube. Id. The report            (Tex.2005); see also Transcon. Ins. Co. v. Crump, 330
identified nurses’ notes that described Williams as            S.W.3d 211, 214 (Tex.2010) (stating that plaintiff must
agitated and stated that she kept pulling at her feeding       prove “cause in fact (or substantial factor)”); Ford Motor
tube. Id. The nursing staff improperly re-inserted the tube,   Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.2007) (stating
causing a small cut, which became infected because of the      that producing cause requires that (1) the cause must be a
contents of the feeding tube entering the cut. Id. The cut     substantial cause of the event in issue and (2) it must be a
developed into an abscess requiring multiple surgeries. Id.    but-for cause, namely one without which the event would
The report concluded that Williams’s death was caused by       not have occurred). The report does not do so. Mazzei’s
the infection from the improperly re-inserted feeding tube.    report does not link facts from the alleged negligence in
Id. at 904. The Fourteenth Court held that the trial court     clearing her for surgery to Willie Ann’s death. Willie Ann
did not abuse its discretion in determining the report was     did not suffer a cardiac arrest during or after the surgery;
not conclusory or speculative concerning causation. Id. at     she suffered respiratory arrest and only after a premature
905–06.                                                        extubation. Mazzei does not state that Willie Ann suffered
                                                               any unusual respiratory issue during the surgery itself; the
The report in this case is distinguishable. The report         surgical procedure was “uneventful.” And based on
identifies the alleged breach—clearing Willie Ann for          Mazzei’s report, it appears that any patient—healthy or
surgery with her medical history—as did the report in          with a history of medical conditions—who is prematurely
Patel—prescribing an unapproved drug without consent.          extubated will not sufficiently “maintain the oxygenation
See id. But there the similarities end. In Patel, the report   in the blood” and therefore is at risk for respiratory arrest.
explained that a known side effect of the drug was             The mere fact that Willie Ann was cleared for surgery
restlessness, and the restlessness caused Williams to          before her death does not mean that the clearance for
become agitated and remove her feeding tube. Id . Willie       surgery caused her death. Jelinek, 328 S.W.3d at 533
Ann likewise became agitated and removed her breathing         (cautioning against the post hoc ergo propter hoc fallacy,
tube. The report, however does not explain any                 that is, reasoning that an earlier event caused a later event
connection between clearing Willie Ann for surgery or          simply because it occurred first).
her medical history and her agitation. While the report in
Patel explained each step on the path of causation, the        A causal link can be too attenuated to satisfy the causation
report in this case does not.5                                 requirement for an expert report. See Gonzalez v. Sebile,
                                                               No. 09–09–00363–CV, 2009 WL 4668892, at *4
There were “many links in the chain of events” that began      (Tex.App.-Beaumont Dec. 10, 2009, pet. denied)
with the pre-surgical clearance and ended with her death,      (mem.op.). In Gonzalez, the physician was sued for
but Mazzei failed to explain and support each link. While      clearing the patient for surgery without obtaining a
Mazzei explains how Willie Ann’s premature extubation          cardiologist consultation despite an earlier open heart
prevented her from “maintain[ing] the oxygenation in the       surgery. 2009 WL 4668892at *2. According to the
blood,” increasing her risk for respiratory arrest, he fails   plaintiffs, the defendant anesthesiologist fell below the
to explain what role her pre-existing medical conditions       standard of care by failing to disqualify the plaintiff as not
played in her respiratory arrest. It is here that we part      fit for surgery in part because of the risks of general
company with the trial court and find that it abused its       anesthesia. Id. The court held that the report’s statement
discretion. Mazzei does not link the alleged negligence—       that the plaintiff would not have been injured if he had not
clearing Jean for surgery—with the premature extubation        undergone surgery in the first place was “too attenuated to
except that one occurred before the other. That is not         set forth evidence of causation with sufficient specificity
enough; it is only a statement of “but for” causation. If      to inform” the physician of the alleged misconduct and to
that is all that section 74.351 requires to demonstrate        allow the trial court to conclude that the plaintiff’s claims
causation, almost any prior action taken by a health care      had merit. Id . at *3. Mazzei’s report suffers from the
provider could be said to cause the ultimate outcome. For      same defect.
example, the referral by the emergency room physician
for the surgical consultation with Dr. Shenoy also was a       While Mazzei’s report “provides insight” concerning the
                                                               claims surrounding Jean’s death, it does not link the facts

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     6
Shenoy v. Jean, Not Reported in S.W.3d (2011)



of the decision to clear her for surgery to the conclusion               Shenoy, we conclude that, with respect to Zuniga, the
that Shenoy’s alleged breach of the standard of care                     report fails to explain how and why Zuniga’s clearing of
caused Jean’s death. It does not, therefore, provide a basis             Willie Ann for surgery caused her death, fails to
for the trial court to have concluded that causation was                 demonstrate the causal link necessary to have a
demonstrated for Shenoy’s decision to clear Willie Ann                   meritorious claim, and is conclusory and inadequate. See
for surgery. See Palaciois, 46 S.W.3d at 879 (report must                Gray, 189 S.W.3d at 860; Jelinek, 328 S.W.3d at 539–40.
provide basis for concluding that claims have merit). We
conclude, therefore, that the report is conclusory and                   We sustain this portion of Zuniga’s sole issue.6
inadequate with respect to Shenoy. See Gray, 189 S.W.3d
at 860; see also Jelinek, 328 S.W.3d at 539–40 (finding
report inadequate concerning causation because it did not
explain “how and why the breach caused the injury based
on the facts presented”).                                                                          Conclusion

*10 We sustain this portion of Shenoy’s second issue.                    We reverse and render an order dismissing the claims
                                                                         against Shenoy and Zuniga.


B. Adequacy of the report concerning Zuniga
Penny has not alleged, and Mazzei’s report does not                      SHARP, J., dissenting. Dissent to follow.
assert, that Zuniga negligently performed surgery; rather,
the surgery is described as “uneventful.” For the same
reasons that the report is inadequate as to causation for

Footnotes
1      See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2011).

2      See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002) (review of Chapter 74 report is limited to four corners of
       report).
3      Only Shenoy and Zuniga are parties to this appeal.

4      See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

5      The report in this case is similarly distinguishable from the report in Engh. In Engh, the report identified the alleged breach-
       placing a surgical clip on the ureter during surgery. 2010 WL 4484022 at *6. The report also explained the consequences of a
       clipped ureter. Specifically, the report detailed how damage to and, eventually, loss of the kidney would result from clipped
       ureter. Id. Thus, this court found the report adequate, although Engh saw multiple other doctors and several months passed after
       his surgery and before he lost his kidney. Id. at *10. The report explained how the alleged breach caused the loss of Engh’s
       kidney, while the report here contains no explanation of how clearing a patient with a history like Willie Ann’s causes
       premature extubation, self-extubation, or the eventual death of the patient.
6      Because we have sustained Shenoy’s second issue in part and Zuniga’s sole issue in part, we do not address the other arguments
       raised by the parties. See TEX.R.APP. P. 47.1.




End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   7
Smith v. Wilson, 368 S.W.3d 574 (2012)




                                                             appellee Janet Lynn Wilson’s suit for medical
                                                             malpractice. We reverse the trial court’s order and remand
                  368 S.W.3d 574
              Court of Appeals of Texas,                     for dismissal and determination of attorney’s fees.
                       Austin.

   Ted SMITH, D.O.; and Austin Regional Clinic,
                P.A., Appellants,
                                                                      Factual and Procedural Background
                        v.
         Janet Lynn WILSON, Appellee.                        On August 6, 2007, Wilson’s son, Keith Michael Harris,
                                                             went to see Dr. Smith, complaining of depression and
No. 03–10–00387–CV. | Jan. 11, 2012. | Rehearing
                                                             stress. Harris was twenty-three years old and had recently
           Overruled May 7, 2012.
                                                             broken up with his girlfriend. Smith prescribed fluoxetine 1
                                                             with twelve refills and did not schedule a follow-up visit.
Synopsis                                                     On September 5, 2007, Harris committed suicide.
Background: Medical malpractice action was brought
against physician and clinic, after patient who had been     Wilson sued appellants, alleging that Smith was negligent
prescribed anti-depressant committed suicide. The 53rd       in prescribing fluoxetine and in not scheduling a follow-
Judicial District Court, Travis County, Suzanne              up visit with Harris, that ARC was vicariously liable as
Covington, J., denied defendants’ motion to dismiss due      Smith’s employer, and that their negligence was a
to deficient expert report, and defendants appealed.         proximate cause of Harris’s death. Wilson timely served
                                                             an expert report by Dr. John T. Maltsberger. See Tex. Civ.
                                                             Prac. & Rem.Code Ann. § 74.351 (West 2011). In his
                                                             report, Maltsberger stated that the accepted standard of
[Holding:] The Court of Appeals, David Puryear, J., held     care that should be employed when prescribing fluoxetine
that expert’s medical report was not good faith attempt to   required a doctor to obtain a description of the patient’s
comply with medical expert report requirements.              “anxious and depressive symptoms” and a full psychiatric
                                                             history. He opined that Smith breached that standard of
                                                             care because he did not “obtain and record” Harris’s
Reversed and remanded.                                       symptoms of anxiety and depression or his full psychiatric
                                                             history. Maltsberger stated that there was a generally
                                                             recognized relationship between fluoxetine and suicide in
Attorneys and Law Firms                                      adolescents and young adults and that “adolescents with
                                                             psychiatric disorders” had a greater risk of suicidal
*575 Diana L. Faust, R. Brent Cooper, Richard C. Harrist,
                                                             thoughts and behavior in “the first few months of
Cooper & Scully, PC, Dallas, TX, for Appellant.
                                                             treatment” when prescribed fluoxetine. Maltsberger *576
Dan Ballard, Stacey J. Simmons, Ballard & Simmons,           concluded by stating, “[I]t is my opinion that more likely
LLP, Austin, TX.                                             than not, had Keith Harris not been prescribed fluoxetine,
                                                             he would not have committed suicide.”
Jay Harvey, Winckler & Harvey, LLP, Austin, TX, for
Appellee.                                                    Appellants objected to the report, asserting it was
                                                             deficient because it was conclusory with regard to
Before Chief Justice JONES, Justices PURYEAR and             causation. Appellants also noted that the report did not
PEMBERTON.                                                   mention ARC at all, much less level any criticism against
                                                             it, and argued that it therefore amounted to no expert
                                                             report at all as to ARC. The trial court found that
                                                             Maltsberger’s report qualified as a report but was
                                                             inadequate, denied appellants’ motion to dismiss, and
                                                             gave Wilson thirty days to remedy the report’s
                       OPINION                               deficiencies. Wilson filed an amended report providing
                                                             essentially the same opinions, but adding more detail to
DAVID PURYEAR, Justice.                                      the causation paragraph.2 Maltsberger changed his
                                                             statements about the relationship between fluoxetine and
Appellants Ted Smith, D.O., and Austin Regional Clinic
                                                             suicidal thinking and behavior to refer only to
(“ARC”) appeal from the denial of their motion to dismiss
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 1
Smith v. Wilson, 368 S.W.3d 574 (2012)



adolescents, removing his prior inclusion of “young            medical defendant may file an objection to the report’s
adults.”3 Maltsberger concluded:                               sufficiency and a motion to dismiss the plaintiff’s liability
                                                               claims. See id. § 74.351(a), (b).

   Based on the information provided to me to date, it is      [2]
                                                                  When the adequacy of a report is challenged, the trial
   my opinion that Keith Harris was a suicide-vulnerable,      court should only sustain the objections if it determines
   depressed young man. As outlined in the studies             “that the report does not represent an objective good faith
   described above, fluoxetine worsened his depression         effort to comply with the definition of an expert report.”
   and agitated this patient, driving him beyond his           Id. § 74.351(l ); see American Transitional Care Ctrs. of
   capacity for endurance. It is my opinion that more          Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001).
   likely than not, fluoxetine was a significant cause that    The trial court should confine its inquiry to the four
   worsened the emotional burden of Mr. Harris’s illness       corners of the report, which must include the expert’s
   and that without it he would not have committed             opinion on all three statutory elements and “ ‘must
   suicide.                                                    explain the basis of [the expert’s] statements to link his
Appellants filed another motion to dismiss, asserting that     conclusions to the facts.’ ” Bowie Mem’l Hosp. v. Wright,
the new report was deficient because Maltsberger “never        79 S.W.3d 48, 52 (Tex.2002) (quoting Earle v. Ratliff,
connects the dots and says that based on the history or        998 S.W.2d 882, 890 (Tex.1999)). If the trial court finds a
presentation that existed had Dr. Smith obtained an            report deficient, the plaintiff’s claims against the medical
adequate history, he should not have prescribed Prozac.”       defendant are subject to dismissal unless the court grants
Appellants further asserted:                                   “one 30–day extension to the claimant in order to cure the
                                                               deficiency.” Tex. Civ. Prac. & Rem.Code Ann. §
            [Maltsberger] never states that                    74.351(c), (l ). If an expert report is not timely served, the
            based on the information available                 trial court must dismiss the claims against the medical
            to Dr. Smith at the time that he was               defendant if the defendant files a motion to dismiss. Id. §
            treating Mr. Harris, Dr. Smith                     74.351(b).
            should have concluded that Mr.
                                                               [3] [4]
            Harris was suicide-vulnerable. As                        “A report need not marshal all the plaintiff’s proof,”
            an expert, he is supposed to analyze               but to be considered a good-faith effort to satisfy the
            Dr. Smith’s actions based on the                   statute, it must do more than simply provide the expert’s
            information that was available to                  conclusions as to standard of care, breach, and causation.
            him at the time. His failure to do so              Palacios, 46 S.W.3d at 878–79. Instead, the report “must
            renders his opinions conclusory,                   discuss the standard of care, breach, and causation with
            and therefore, not adequate.                       sufficient specificity to inform the defendant of the
                                                               conduct the plaintiff has called into question and to
Appellants also reasserted that because Maltsberger’s          provide a basis for the trial court to conclude that the
report made no reference to or criticism of ARC, it did not    claims have merit.” Id. at 875. We review a trial court’s
qualify as an expert report on those claims. The trial court   denial of a motion to dismiss under section 74.351 for an
denied appellants’ motion to dismiss, and appellants filed     abuse of discretion, but if an expert report contains only
this appeal. See id. § 51.014(a)(9) (West 2008).               conclusions about the statutory elements, the trial court
                                                               has “no discretion but to conclude ... that the report does
                                                               not represent a good-faith effort” to satisfy the statute. Id.
                                                               at 877, 880.
                         Analysis                              After appellants objected to the sufficiency of
[1]
   Within 120 days of the date a plaintiff files a health-     Maltsberger’s original report, the trial court gave Wilson
                                                               the opportunity to provide an amended report. The new
care-liability claim, she must serve each physician or
                                                               report, however, added very little to Maltsberger’s
health care provider against whom claims are asserted
                                                               statements related to Smith’s alleged breach of the
(“medical defendant”) with at least one expert report that
                                                               standard of care and causation, including only one
summarizes the expert’s opinions “regarding applicable
standards *577 of care, the manner in which the care           additional paragraph that stated that Harris was “a
rendered by the physician or health care provider failed to    suicide-vulnerable, depressed young man” and that
                                                               fluoxetine worsened his depression and led to his suicide. 4
meet the standards, and the causal relationship between
                                                               Wilson asserts that this report “provides, in its four
that failure and the injury, harm, or damages claimed.” Id.
                                                               corners, that but for prescribing the medication the patient
§ 74.351(a), (r)(6). After an expert report is filed, a
                                                               would not have committed suicide.” That may be true, but

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Smith v. Wilson, 368 S.W.3d 574 (2012)



despite Maltsberger’s opinion that fluoxetine worsened                   and Harris’s suicide, one of the required statutory
Harris’s mental state and “without it he would not have                  elements of an expert report. See Tex. Civ. Prac. &
committed suicide,” the report does not explain how                      Rem.Code Ann. § 74.351(r)(6) (expert report must
taking more complete medical records from Harris would                   include “fair summary” of expert’s opinion as to “causal
have made Smith aware that fluoxetine would put Harris                   relationship” between medical defendant’s failure to meet
at risk for suicidal thoughts or action and *578 would                   standard of care and injury).
have dissuaded Smith from prescribing fluoxetine. In
other words, the report does not show how Smith’s                        Further, Maltsberger states that studies have shown a
alleged breach of the standard of care caused the tragic                 relationship between fluoxetine and suicide in adolescents
result. See Taylor v. Fossett, 320 S.W.3d 570, 577–78                    and that fluoxetine increases the risk of suicidal thoughts
(Tex.App.-Dallas 2010, no pet.) (report did not provide a                and behavior in adolescents with psychiatric disorders. He
factual explanation of how doctor’s delay in diagnosis or                does not, however, state that fluoxetine should never be
treatment caused complications); Estorque v. Schafer, 302                prescribed to adolescents, nor does he explain whether
S.W.3d 19, 28–29 (Tex.App.-Fort Worth 2009, no pet.)                     fluoxetine is always inappropriate *579 for all
(expert report left “gaps by not explaining how or why the               adolescents, whether some adolescents can safely take it,
physicians’ failure to consult a urologist or gynecologist               or, more importantly, whether the findings related to
caused worsening or progression of Shirley’s listed                      adolescents could even be applied to Harris, who at
conditions” and did not explain how plaintiff would not                  twenty-three was not an adolescent. Without more,
have been injured had defendants obtained consults from                  Maltsberger’s statement that a correlation exists between
specialists); Johnson v. Willens, 286 S.W.3d 560, 565                    fluoxetine and suicide in adolescents does not supply a
(Tex.App.-Beaumont 2009, pet. denied) (report did not                    causal link between the prescribing of fluoxetine and
explain what “normal dose” would have been, why                          Harris’s suicide.
prescribed dose was excessive, what patient complained
of, or what proper treatment would have been); see also                  To be sure, Maltsberger was not required to provide an
Wright, 79 S.W.3d at 53 (affirming trial court’s                         exhaustive, lengthy summary of how Smith’s omissions
determination that report was insufficient because it                    caused Harris’s suicide or what aspects of Harris’s
lacked “information linking the expert’s conclusion ... to               medical records led Maltsberger to conclude that
Bowie’s alleged breach”); Gray v. CHCA Bayshore L.P.,                    fluoxetine was an inappropriate and dangerous
189 S.W.3d 855, 859–60 (Tex.App.-Houston [1st Dist.]                     prescription, but he provides literally no summary of such
2006, no pet.) (affirming trial court’s finding that report              information. We are left with no choice but to conclude
was insufficient because it did not provide any specific                 that the report does not provide a fair summary of the
information about what defendants should have done or                    causal link between Smith’s alleged shortcomings and
“convincingly tie the alleged departure from the standard                Harris’s death. See Taylor, 320 S.W.3d at 577–78;
of care to specific facts of the case”).                                 Estorque, 302 S.W.3d at 28–29; Johnson, 286 S.W.3d at
                                                                         565. Because the report is insufficient as to Smith, it is
Maltsberger’s report essentially states that (1) the                     also insufficient as to ARC, which Wilson sued solely for
applicable standard of care required Smith to obtain and                 vicarious liability for Smith’s conduct. See Kettle v.
record a description of Harris’s symptoms and a complete                 Baylor Med. Ctr., 232 S.W.3d 832, 842–43 (Tex.App.-
psychiatric history, (2) Smith neglected to get a                        Dallas 2007, pet. denied) (affirming dismissal of suit
description of the symptoms or a complete psychiatric                    against professional association due to deficiencies in
history in deciding to prescribe fluoxetine, and (3)                     report about doctor’s conduct, stating that whether
fluoxetine worsened Harris’s emotional state to the point                association was directly or vicariously liable, “liability
where he committed suicide. Maltsberger does not,                        still depends on conduct” of doctor).
however, provide even the roughest summary of the
information Smith should have gleaned from Harris’s                      We reverse the trial court’s order denying appellants’
psychiatric past or symptoms that would have stopped                     motion to dismiss. We remand the cause to the trial court
Smith from prescribing fluoxetine or whether Harris’s                    for the determination of attorney’s fees, see Tex. Civ.
symptoms or history actually contained information that                  Prac. & Rem.Code Ann. § 74.351(b), and for entry of a
would have indicated that fluoxetine was not an                          final order dismissing Wilson’s claims against appellants.
appropriate prescription.5 He does not provide facts to
explain the causal link between Smith’s alleged breach

Footnotes
1      Fluoxetine is the generic name for Prozac, an anti-depressant. We will refer to the drug as fluoxetine except when quoting the

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      3
Smith v. Wilson, 368 S.W.3d 574 (2012)



      record, in which the terms seem to be used interchangeably.
2     The amended report is two and one-half pages long, and the actual summaries of the standard of care, breach, and causation are
      covered in slightly over one page.
3     This is a noteworthy omission, since Harris, as a twenty-three-year-old man, was not what is generally considered an
      adolescent. See Webster’s Third New Int’l Dictionary 28 (2002) (defining adolescence as “the period of life from puberty to
      maturity terminating legally at the age of majority”); see also medical-dictionary.thefreedictionary.com/adolescence (last visited
      January 5, 2012, citing Mosby’s Med. Dictionary (2009), Miller–Keane Encyclopedia & Dictionary of Med., Nursing, & Allied
      Health (2003)) (defining adolescence as time between puberty and adulthood, usually running from between eleven and thirteen
      and between eighteen and twenty).
4     Although Wilson alleged in her petition that Smith breached the standard of care by not scheduling a follow-up visit with
      Harris, neither of Maltsberger’s reports discusses follow-up visits or states whether a follow-up should have been scheduled,
      when such a visit would have been appropriate, or whether it would have made a difference in this case.
5     Wilson cites to Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex.App.-Dallas 2010, no pet.), stating Bakhtari is a “strikingly
      similar case.” The expert report in Bakhtari, however, provided substantially more information than the report presented here.
      The Bakhtari report explained that the medication in question should only have been prescribed for very short-term use, no
      refills should have been given, the patient should have been warned of possible side-effects, the doctor should have consulted
      with or referred the patient to a mental-health professional, and the doctor should have provided or arranged for “on-going
      assessment and monitoring” of the patient’s condition. Id. at 496–97 nn. 9, 10. Maltsberger’s cursory report bears very little
      similarity to the specificity and explanations provided in the Bakhtari report.




End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     4
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)




                                                               individually and d/b/a Sugar Land Orthopedic Associates
                                                               (Dr. Blum). Strom appeals to challenge orders that
                    110 S.W.3d 216
               Court of Appeals of Texas,                      dismissed those claims, with prejudice, on the grounds
                 Houston (1st Dist.).                          that the expert reports she provided to support those
                                                               claims under section 13.01(d) of article 4590i, the Medial
          Florence M. STROM, Appellant,                        Liability and Insurance Improvement Act, did not comply
                         v.                                    with section 13.01(r)(6) of that statute.1 We address (1)
   MEMORIAL HERMANN HOSPITAL SYSTEM                            whether Strom’s expert reports constituted a fair summary
      d/b/a Memorial Hospital Southwest and                    of the standard of care required by Dr. Blum and the
  Memorial Hospital System, and Dr. Henry Blum,                Hospital, (2) whether the trial court erred by refusing to
   Individually and d/b/a Sugar Land Orthopedic                grant Strom an extension of time to amend her expert
            Associates, P.A., Appellees.                       reports, (3) whether Dr. Blum waived his challenge to the
                                                               adequacy of Strom’s expert reports by not asserting the
       No. 01–01–00756–CV. | May 29, 2003.                     challenge until 180 days after Strom filed suit, (4)
                                                               whether the trial court erred in awarding $5,000 in
Patient brought health-care liability claims against           attorney’s fees to the hospital, (5) the constitutionality of
hospital and doctor. The 164th District Court, Harris          article 4590i, section 13.01(d), and (6) whether the trial
County, Martha Hill Jamison, J., dismissed claims. Patient     court erred in dismissing Strom’s claims of fraud,
appealed. The Court of Appeals, Tim Taft, J., held that:       intentional and fraudulent misrepresentations, and
(1) reports of patient’s experts failed to provide a “fair     “unnecessary surgery” against Dr. Blum. We affirm.
summary” of the experts’ opinions as to the elements of
standard of care and causation; (2) patient was not entitled
to additional time to amend insufficient expert reports; (3)
award of $5,000 in attorney fees as a sanction against
patient was proper; (4) dismissal of patient’s action did                             Background
not violate constitutional guarantees.
                                                               Strom sued the hospital claiming that hospital surgical
Affirmed.                                                      nursing staff improperly positioned her in preparation for
                                                               neck surgery performed at the hospital October 4, 1996,
Mirabal, J., dissented and filed opinion.                      and caused injury to her left knee. Strom also sued Dr.
                                                               Blum, an orthopedic surgeon who later treated the left
                                                               knee and performed a total knee replacement, claiming he
Attorneys and Law Firms                                        was negligent and grossly negligent because the surgery
                                                               was unnecessary. Strom sued the hospital in October 1998
*218 John H. Holloway, Houston, for Appellant.                 and sued Dr. Blum a year later.

Sam A. Houston, Cruse, Scott, Henderson & Allen,               On April 25, 2001, the hospital moved the trial court to
Solace H. Kirkland, Andrews & Kurth, David W. Hodges,          either dismiss Strom’s case against the hospital or require
Mayor, Day, Caldwell & Keeton, L.L.P., Houston, for            her to file a cost bond, on the grounds she had missed the
Appellee.                                                      90–day and the 180–day requirements of article 4590i,
Panel consists of Justices TAFT, HANKS,* and                   section 13.01 by not filing expert reports in compliance
MIRABAL.**                                                     with that statute. See TEX.REV.CIV. STAT. ANN.. art.
                                                               4590i, § 13.01(a), (d), (e)(3) (Vernon Supp.2003). With
                                                               respect to the 180–day requirement, the hospital
                                                               acknowledged that Strom had provided expert reports in
                                                               attempted compliance with section 13.01(d),2 but argued
                                                               that the reports were “insufficient as a matter of law”
                     *219 OPINION
                                                               under section 13.01(r)(6) because they did not provide a
TIM TAFT, Justice.                                             “fair summary” of the applicable standard of care, how it
                                                               was breached, or the causal relationship between the
Appellant, Florence M. Strom, filed health-care liability      alleged breach and Strom’s injuries, as required by that
claims against appellees, Memorial Hermann Hospital            section. See TEX.REV.CIV. STAT. ANN.. art. 4590i, §
System d/b/a Memorial Hospital Southwest and Memorial          13.01(d), (r)(6) (Vernon Supp.2003). The hospital also
Hospital System (the hospital) and Dr. Henry Blum,             requested attorney’s fees, as authorized by section

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



13.01(e)(1). See TEX.REV.CIV. STAT. ANN.. art. 4590i,            Dismissals with Prejudice for Insufficient Reports
§ 13.01(e)(1) (Vernon Supp.2003). After conducting a
hearing on May 14, 2001, the trial court dismissed             Strom’s first four points of error challenge dismissal of
Strom’s claims against the hospital, with prejudice, and       her claims against Dr. Blum as an abuse of discretion. In
awarded the hospital $5,000 in attorney’s fees and costs.      points of error five through seven, Strom challenges the
                                                               dismissal against the hospital on the same grounds.
*220 Four days later, on May 18, 2001, Dr. Blum filed a
similar motion to dismiss. The trial court granted this        All health-care liability claims must comply with section
motion and dismissed Strom’s claims against Dr. Blum in        13.01(d) of article 4590i. TEX.REV.CIV. STAT. ANN..
an order signed on August 18, 2001. This order recites         art. 4590i, § 13.01(d) (Vernon Supp.2003). Section
that the trial court considered Strom’s counsel’s sworn        13.01(d) requires that a plaintiff asserting a health-care
testimony, and also reflects the trial court’s findings and    liability claim must, not later than 180 days after filing
conclusions in granting relief.                                suit, either: (1) furnish an expert report, with supporting
                                                               curriculum vitae, to counsel for each defending physician
                                                               or health-care provider; or (2) voluntarily nonsuit the
                                                               claim. TEX.REV.CIV. STAT. ANN.. art. 4590i, §
                                                               13.01(d) (Vernon Supp.2003). Article 4590i defines
                   Standard of Review                          “expert report” as a written report that:
[1]
    The abuse-of-discretion standard governs all article                    provides a fair summary of the
4590i, section 13.01 rulings. American Transitional Care                    expert’s opinions as of the date of
Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); De                        the report regarding applicable
Leon v. Vela, 70 S.W.3d 194, 197 (Tex.App.-San Antonio                      standards of care, the manner in
2001, pet. denied). This standard inquires whether the                      which the care rendered by the
trial court acted without reference to any guiding rules or                 physician or health care provider
principles. Garcia v. Martinez, 988 S.W.2d 219, 222                         failed to meet the standards, and
(Tex.1999); Mueller v. Beamalloy, Inc., 994 S.W.2d 855,                     the causal relationship between that
858 (Tex.App.-Houston [1st Dist] 1999, no pet.). We may                     failure and the injury, harm, or
not reverse a discretionary decision simply because we                      damages claimed.
might have reached a different one. Mueller, 994 S.W.2d
at 858. When resolving factual issues or matters               TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6)
committed to the trial court’s discretion, we may not          (Vernon Supp.2003).
substitute our judgment for that of the trial court. Walker
v. Packer, 827 S.W.2d 833, 839 (Tex.1992).                     Section 13.01 acknowledges that medical-malpractice
[2]
                                                               cases require expert testimony *221 and the statute was
   Dismissals with prejudice for lack of compliance with       enacted to curtail frivolous lawsuits. See Palacios, 46
section 13.01 of article 4590i are sanctions. See              S.W.3d at 877; Hart v. Wright, 16 S.W.3d 872, 876
TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e)                (Tex.App.-Fort Worth 2000, pet. denied). If the plaintiff
(Vernon Supp.2003) (“... [T]he court shall, on the motion      does not comply with section 13.01(d), and the defendant
of the affected physician or health care provider, enter an    seeks sanctions pursuant to section 13.01(e), the trial
order awarding as sanctions....”); Palacios, 46 S.W.3d at      court must grant the relief authorized by that section, as
877. In contrast to findings entered in support of a           follows: dismiss the claim against that defendant with
judgment after a bench trial under rule 296 of the Rules of    prejudice; award costs and attorney’s fees to that
Civil Procedure, findings entered in support of a sanction     defendant; and require that any bond filed under section
dismissing a cause, as entered here in the order granting      13.01 be forfeited to pay that award. TEX.REV.CIV.
Dr. Blum’s motion, are not binding on the reviewing            STAT. ANN.. art. 4590i, § 13.01(e)(1)-(3) (Vernon
court, although they are “helpful” in determining whether      Supp.2003); Palacios, 46 S.W.3d at 877; see also
the trial court exercised its discretion in a reasonable and   TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l )
principled manner. See IKB Indus., Ltd. v. Pro–Line            (Vernon Supp.2003) (“A court shall grant a motion
Corp., 938 S.W.2d 440, 442 (Tex.1997) (appeal from             challenging the adequacy of an expert report only if it
dismissal as a sanction); Chrysler Corp. v. Blackmon, 841      appears to the court, after hearing, that the report does not
S.W.2d 844, 852 (Tex.1992) (mandamus review of                 represent a good faith effort to comply with the definition
dismissal as a sanction).                                      of an expert report in Subsection (r)(6) of this section.”);
                                                               In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928
                                                               (Tex.App.-Texarkana 2001, orig. proceeding) (holding

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



that, because noncompliance with section 13.01(d)                summary of the expert’s opinions as to the elements of
mandates dismissal with prejudice, trial court had no            standard of care, breach, and causation is higher than the
discretion to grant extension of time to comply; granting        “fair notice” requirement of rule 47.
mandamus relief to compel dismissal).
                                                                 [10] [11]
                                                                          Standard of care, the first element required by
[3] [4]
       In assessing an expert report for compliance with         section 13.01(r)(6) for health-care liability claims, is
sections 13.01(d) and (r)(6) on a defendant’s section            defined by what an ordinarily prudent health-care
13.01(e) motion, the dispositive inquiry is whether the          provider or physician would have done under the same or
report “represents a good-faith effort” to comply with           similar circumstances. Palacios, 46 S.W.3d at 880.
section 13.01(r)(6). See Palacios, 46 S.W.3d at 878              Whether a defendant breached the standard of care due a
(citing TEX.REV.CIV. STAT. ANN.. art. 4590i, §                   patient cannot be determined without “specific
13.01(r)(6)). Because section 13.01 focuses on the report,       information about what the defendant should have done
the only information relevant to this inquiry lies within        differently.” See id. (“While a ‘fair summary’ is
the four corners of the report. Id. The trial court may not      something less than a full statement of the applicable
look beyond the report, therefore, in determining                standard of care and how it was breached, even a fair
compliance with the statute. Id.                                 summary must set out what care was expected, but not
                                                                 given.”) (quoting from Palacios, 4 S.W.3d at 865 (Taft,
[5] [6] [7] [8]
            The report need not marshal all the plaintiff’s      J., dissenting)).
proof or meet the requirements for evidence offered to
support a summary judgment or at trial. Palacios, 46
S.W.3d at 878–79. The report must, however, include the
expert’s opinion on each of the elements defined by              A. Standard of Care—Dr. Blum
section 13.01(r)(6), specifically, the standards of care,        Regarding Dr. Blum, Strom relies upon the following
how the defendant breached those standards, and the              excerpts from the reports of Doctors Robert A. Callewart
causal relationship between the breach and the plaintiff’s       and George W. Sibley:
injury. TEX.REV.CIV. STAT. ANN.. art. 4590i, §
13.01(r)(6). In setting out these elements, the report must:        Dr. Callewart’s Report
(1) inform the defendant of the specific conduct called
into question by the plaintiff’s claims and (2) provide a           I have reviewed the medical records furnished in the
basis from which the trial court may conclude the claims            case of Myrna Strom....
have merit. See Palacios, 46 S.W.3d at 879 (citing
                                                                    In February of 1997, she was seen by Dr. Henry Blum,
Palacios v. American Transitional Care Ctrs., 4 S.W.3d
                                                                    an orthopedic surgeon, with her chief complaint
857, 865 (Tex.App.-Houston [1st Dist.] 1999), rev’d, 46
                                                                    involving her left knee. X-rays showed degenerative
S.W.3d 873 (Tex.2001) (Taft, J., dissenting)). A report
                                                                    changes with medial joint space narrowing and some
that merely states the expert’s conclusions about the
                                                                    calcification in the notch, and his impression of torn
standard of care, breach, and causation falls short of
                                                                    medial maniscus and chondromalacia. Again, he
accomplishing these two purposes. Palacios, 46 S.W.3d
                                                                    reports that she had no prior history of knee related
at 879. When the expert report provided in attempted
                                                                    complaints prior to surgery in question [neck surgery
compliance with sections 13.01(d) and (r)(6) contains
                                                                    when the patient suffered a knee injury due to improper
conclusory statements that do not alert the trial court or
                                                                    positioning by the operating room nurses]. Dr. Blum
the defendant to the conduct the plaintiff complains of,
                                                                    performed the manisectomy on February 12, 1997. On
section 13.01(l ) affords the trial court no discretion but to
                                                                    March 3, 1997, it is reported that she is doing fantastic
conclude that the report does not represent the “good-faith
                                                                    after surgery. However, on April 19, 1997, Dr. Blum
effort,” under section 13.01(l ), to provide “a fair
                                                                    indicates the patient needs a total knee replacement,
summary” of the three elements required by section
                                                                    and on July 28, 1997, reports that she is scheduled for a
13.01(r)(6), and no discretion but to dismiss the cause as a
                                                                    total knee replacement on August 1, 1997. The total
sanction, as provided by section 13.01(e). Palacios, 46
                                                                    knee and carpal tunnel release were performed by Dr.
S.W.3d at 880.
                                                                    Blum on August 1, 1997....
[9]
   Strom contends that the requirement of providing a               Based upon the records, it is my expert opinion that
“fair summary” is akin to providing “fair notice” in                the total knee and carpal tunnel release were not
pleadings pursuant *222 to rule 47 of the Texas Rules of            medically indicated. There is no justification or very
Civil Procedure. See TEX.R. CIV. P. 47. It is apparent,             clear indication in the chart for the surgery. There is
however, from the cases Strom cites that the Palacios               some suggestion she had severe arthritis in the knee;
standard for making a good-faith effort to provide a fair           however, this is not consistent with what was reported
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  3
Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



   in the knee at the time of the prior surgery                B. Standard of Care—The Hospital
   [manisectomy by Dr. Blum] or other evaluations of the       Regarding the Hospital, Strom relies upon the following
   knee. If she had severe degenerative joint disease, this    excerpts from the reports of Doctors Sibley and
   could not have occurred in several months time frame        Callewart:
   from when she had the surgery of the neck or from the
   time of the February 12, 1997, surgery [manisectomy           Dr. Sibley’s Report
   by Dr. Blum].
                                                                 On 10/4/96, Dr. Berry operated on Florence and
   Based upon a reasonable medical probability, the              decompressed the C7–T1 area. He noted that
   records indicate no medical basis of [sic] reason for         postoperatively, the patient for the first time
   the total knee replacement in a woman in her                  complained of her left knee.
   middle 50’s who weighs 240 lbs, who had reportedly
   a normal knee prior to the operative room injury.             On 11/1/96, an MRI of the left knee showed a tear of
   The surgery would therefore violate the standards of          the posterior horn of the medial meniscus. Dr. Staewen
   care which would be expected to be exercised by a             examined her and made the diagnosis of the dislocated
   reasonable and prudent orthopedic surgeon under the           patella on the left with mild sprain of the lateral
   same or similar circumstances, and gross negligence           collateral ligament. The medical records suggest that
   to submit such a patient to an unnecessary surgery.           the patient, while being strapped in the prone position
                                                                 for a posterior cervical operative procedure on 10/4/96,
   *223 Dr. Sibley’s Report                                      was placed in an untoward position. The result was
                                                                 injury of the left knee....
   Based upon the medical records, the surgery of 8/1/97
   [total knee and carpal tunnel syndrome surgeries] was         On 2/3/97, Florence saw Dr. Blum complaining of her
   not indicated medically. This apparently was                  left knee....
   unnecessary surgery. The medical records do not
   contain adequate indications for the surgery                  On 2/12/97 Dr. Blum did arthroscopic surgery of the
   performed on 8/1/97. A markedly obese 52–year–old             left knee and did a partial medial meniscectomy and
   lady with a short right leg is not a candidate one            chondroplasty of the left knee....
   would expect to have a good result from a total knee
   replacement. The diagnosis of carpal tunnel                   CONCLUSION: Based upon the medical records, it
   syndrome seems to be inadequate grounds to justify            appears that the patient went into the operation of
   the surgery of 8/1/97. The surgeries of 8/1/97 to the         10/4/96 without complaints of her left knee and
   knee and to the wrist were unnecessary.                       came out of the surgery with complaints of the left
                                                                 knee. It is also noted that the patient had a short
(Emphases added by Strom’s brief for both reports.)              right leg and degenerative disease of the left knee
                                                                 prior to the 10/4/96 surgery. Based on the medical
[12]
    Examining the two reports for a showing of what an           records, the patient’s left knee was negligently
ordinarily prudent physician would have done under the           injured while under anesthesia when she was moved
same or similar circumstances, there simply is no                from the supine position on the gurney to the prone
statement of the standard of care. See Palacios, 46              position on the operating table (a twisting injury)
S.W.3d at 880. To the extent that the reports state what an      and/or when she was placed on the operating table
ordinarily prudent physician would not have done, i.e.,          with the left knee inadequately padded.
what Dr. Blum did, the reports are addressing a breach of
the standard of care rather than the applicable standard of      Dr. Callewart’s Report
care itself. Because the reports fail to provide an adequate
                                                                 On May [2]8, 1996, Dr. Cech performed what is
statement of the standard of care, it is unnecessary to
                                                                 described as inferior L4 and superior L5
examine further whether they fulfill the other two
                                                                 hemilaminectomies, bilateral *224 L4–5 medial
requirements for expert reports pursuant to article 4590i,
                                                                 facetectomies and foraminotomies with decompression
section 13.01(r)(6). See De Leon v. Vela, 70 S.W.3d at
                                                                 of the L4/L5 nerve roots and thecal sac. The patient
199.
                                                                 complained of continuing problems post-operatively;
                                                                 however, in a report dated July 8, 1996, she denied any
Accordingly, we overrule Strom’s first four points of
                                                                 trouble with pain in the lower extremities. Based upon
error.
                                                                 evaluation by MRI, x-ray, and a cervical myelogram in
                                                                 August and September 1996, Dr. John Berry suggested
                                                                 a cervical decompression bilaterally of C7–T1, and

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



   possibly re-explore C5–6 bilaterally. This surgery was
   performed on October 4, 1996, at the Memorial                Accordingly, we overrule Strom’s fifth through seventh
   Hospital Southwest in Houston, Texas. This surgery           points of error.
   resulted in the patient sustaining an acute traumatic
   injury in the patient’s left knee/leg; the patient
   being presumably in a sitting position. The patient
   suffered immediate pain and swelling of the knee
   postoperatively, with difficulty in walking.                   Failure to Grant Additional Time to File Complying
                                                                                    Expert Report
   On October 23, 1996, it is reported that the patient
   complains of left knee pain and hobbling on the left         In points of error eight through ten, Strom contends the
   knee, which is swollen, with decreased range of motion       trial court abused its discretion by refusing to grant her an
   and tenderness. A MRI of the left knee on November 1,        additional 30 days to either amend the reports *225 of her
   1996, showed a horizontal tear through the posterior         experts, Drs. Sibley and Callewart, or permit Strom to file
   horn of the medial meniscus, extending to the inferior       their depositions as supplements to their reports. Strom
   articular surface near the free edge, and a small interior   relies on section 13.01(g) of article 4590i, which provides
   surface tear of the medial meniscus at the junction of       as follows:
   the posterior horn and body segment, and a grade I
   medial collateral ligament sprain.                                        Notwithstanding        any      other
                                                                             provision of this section, if a
   The knee injuries described in the MRI do not occur                       claimant has failed to comply with
   when the customary and usual standards of care are                        a     deadline     established      by
   exercised in the positioning and strapping a patient on                   Subsection (d) of this section and
   the operative table. However, the injuries can occur                      after hearing the court finds that the
   when the hospital’s operating room personnel fail to                      failure of the claimant or the
   take necessary precautions to pad and avoid the                           claimant’s attorney was not
   placement of the leg/knee in an abnormal position by                      intentional or the result of
   strapping the patient to prevent movement during                          conscious indifference but was the
   surgery. It is my expert opinion, based upon a                            result of an accident or mistake, the
   reasonable medical probability, that the knee injuries                    court shall grant a grace period of
   suffered by the patient were due to the failure of the                    30 days to permit the claimant to
   operating room personnel to exercise ordinary care, or                    comply with that subsection. A
   negligence of the operating room personnel, in placing                    motion by a claimant for relief
   and maintaining her position on the operating room                        under this subsection shall be
   table. On a follow up of her knee pain January 8, 1997,                   considered timely if it is filed
   it was noted that ‘apparently during her recent surgery,                  before any hearing on a motion by
   her knees were taped in an untoward position, resulting                   a defendant under Subsection (e) of
   in some problems. Difficult to know exactly what, but                     this section.
   it is felt that she has some cartilage torn in the left
   knee.’                                                       TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g)
                                                                (Vernon Supp.2003).
(Emphases added by Strom’s brief for both reports.)
                                                                [14]
                                                                    The record contains two requests by Strom for
[13]
    Although the above reports mention that Strom’s knee        additional time. The first request appears in the
injury does not normally occur when the usual standards         concluding paragraphs of Strom’s response to the
of care are exercised, and even note that the left knee         hospital’s motion to dismiss. This request refers to
must not have been properly positioned or padded, the           possible secretarial or post-office error and appears to
reports nevertheless fail to set out the applicable standard    presume that the hospital was contending Strom did not
of care. See Palacios, 46 S.W.3d at 880. Once again, the        furnish the reports on a timely basis, as well as moving to
most that can be said is that the reports address a breach      dismiss pursuant to section 13.01(e)(3) because the
of the standard of care by not properly positioning or          reports were insufficient. Citing section 13.01(h) of article
padding the leg and knee. Moreover, the reports are             4590i,3 which authorizes agreements of counsel to extend
conclusory regarding causation, by failing to set out the       the deadlines of sections 13.01(a) or (d), Strom’s counsel
manner in which a failure to properly pad and position the      provided an affidavit documenting his and the hospital’s
leg and knee resulted in Strom’s knee injury.                   February 10, 1999 rule 11 agreement to extend the

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



deadline to provide an expert report an additional day, to
April 1, 1999. The affidavit also documented Strom’s             To comply with section 13.01(g), however, Strom had to
counsel’s instructions to his support staff in accordance        file her request for additional time before any hearing on a
with that agreement. Nothing in the record suggests that         defendant’s motion to dismiss under section 13.01(e). See
the hospital was disputing timeliness of receipt. Rather,        TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g); see
the record shows that, in contending Strom had not               also Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex.App.-
complied on a timely basis, the hospital had taken the           Houston [1st Dist.] 2000, no pet.) (holding that trial court
position that Strom had not provided complying expert            did not abuse its discretion by denying motion, which
reports by the 180–day deadline, which had therefore             sought additional time to file section 13.01(d) expert
expired. Moreover, in later documents filed with the trial       report, but was filed after hearing on section 13.01(e)
court, Strom’s counsel referred to his timely compliance         motion to dismiss). Here, Strom did not request additional
with the agreed, extended deadline as “undisputed.” Thus,        time to comply with section 13.01(d) on the grounds she
there was no basis on which to invoke section 13.01(h).          raises in this appeal until after the hearing on the
                                                                 hospital’s motion to dismiss. Accordingly, her request
Strom also cited section 13.0 2 (g) of article 4590i in          was not timely.
support of her first request for additional time. Section
13.0 2 (g) does not pertain, however, to expert reports.         Because Strom’s request for additional time was not
See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.02(g)              timely, the trial court did not abuse its discretion by
(Vernon Supp.2003). Strom may have mistakenly cited              refusing to grant relief. We need not address, therefore,
section 13.0 2 (g) instead of section 13.0 1 (g), on which       whether Strom’s counsel’s “reasonable belief,” that the
she relies in her brief to this Court. But the “accident or      expert reports provided to support Strom’s claims
mistake” documented in the affidavit supporting Strom’s          complied with sections 13.01(d) and (r)(6) of article
first request refers only to Strom’s having erroneously          4590i, constituted “accident or mistake” that warranted
presumed, as we have just addressed, that the hospital did       granting additional time to comply.
not receive Strom’s reports by the agreed, extended
deadline. The first request does not refer to the “accident      We overrule points of error eight through ten.
or mistake” on which Strom later relied and on which she
relies in this appeal.

Strom’s second request for additional time appears in her
June 15, 2001 motion for rehearing of the trial court’s                   Deadline to Challenge Expert Reports
May 24, 2001 order dismissing her case against the               [15]
hospital, with prejudice. In addition to claiming that her           In point of error 11, Strom contends Dr. Blum waived
expert reports complied with section 13.01 of article            his right to challenge Strom’s expert reports by waiting
4590i, Strom alternatively requested that the trial court        until 180 days after Strom filed suit. Strom maintains that
“extend the time to file or furnish an amended report or         Dr. Blum had the reports and was aware of their contents,
the depositions of Dr. Sibley and Dr. Callewart as an            but “sat on his hands” and waited until after the last
amendment *226 to the prior reports.” Strom again cited          possible date for Strom to provide a complying expert
section 13.01(h) of article 4590i, governing agreements of       report. Article 4590i imposes no deadline for challenging
counsel to extend preliminary deadlines for filing expert        an expert report under section 13.01(d). See Gonzalez v.
reports. Section 13.01(h) does not apply to relief               El Paso Hosp. Dist., 68 S.W.3d 712, 717 (Tex.App.-El
requested of a court.                                            Paso 2001, no pet.); Chisholm v. Maron, 63 S.W.3d 903,
                                                                 908 (Tex.App.-Amarillo 2001, no pet.); Hargrove v.
Strom again cited “accident or mistake” in her second            Denno, 40 S.W.3d 714, 716 (Tex.App.-San Antonio 2001,
request, but asserted reasons that differed from her first       no pet.).
request. Here, Strom clearly invoked the provisions of
section 13.01(g) of article 4590i by asserting that her          Accordingly, we overrule point of error 11.
failure to comply with section 13.01(d) was neither
intentional nor the result of conscious indifference, but
the result of accident or mistake. See TEX.REV.CIV.
STAT. ANN.. art. 4590i, § 13.01(g). Strom’s claim of                      Award of Attorney’s Fees to Hospital
“accident or mistake” is premised on her attorney’s sworn
affidavit attesting to his “reasonable belief” that the expert   [16]
                                                                     In point of error 12, Strom contends that the trial court
reports he provided complied with article 4590i. Strom           abused its discretion in awarding the Hospital $5,000 for
reasserts that contention on appeal.                             attorney’s fees without evidence to support the claim.
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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



Strom also argues that she was entitled to a jury trial on     for medical negligence be brought under article 4590i.
the issue of reasonable attorney’s fees.                       Strom’s attempt to recast her claims of negligence in
                                                               advising her of the necessity of surgery as fraud and
Article 4590i, section 13.01(e)(1) provides that the trial     intentional and fraudulent misrepresentations regarding
court shall award reasonable attorney’s fees as a sanction     unnecessary surgery do not remove those claims from
for a plaintiff’s failure to comply with the requirements of   article 4590i. See Gomez v. Matey, 55 S.W.3d 732, 735
section 13.01(d). TEX.REV.CIV. STAT. ANN.. art.                (Tex.App.-Corpus Christi 2001, no pet.) (holding claims
4590i, § 13.01(e)(1) (Vernon Supp.2003). By providing          of fraud and misrepresentation regarding unnecessary
that the trial court assess the sanction, the plain language   surgery fell within scope of article 4590i).
*227 of the statute does not contemplate that a jury
determine what is reasonable as attorney’s fees. Strom         Accordingly, we overrule both of Strom’s points of error
does not provide any authority that would permit the jury      thirteen.
to determine this issue.
[17]
     In contending that no evidence supported the trial
court’s award of attorney’s fees, Strom ignores affidavit
testimony that $7,500 represented a reasonable award of                                 Conclusion
attorney’s fees in this case. This suggested fee was $2,500
more than the amount the trial court actually awarded. In      We affirm the judgment of the trial court. We deny all
disputing the evidentiary support for the award of             pending motions.
attorney’s fees, Strom appears to argue that something
more than an affidavit is required, but again offers no
authority to support that contention.
                                                               Justice MARGARET GARNER MIRABAL, dissenting.
We hold that the trial court did not err by awarding
attorney’s fees without convening a jury or requiring
testimony beyond proof by affidavit. Accordingly, we           MARGARET GARNER MIRABAL, Justice, dissenting.
overrule point of error 12.
                                                               In my opinion, the timely-filed expert report of Dr. Robert
                                                               A. Callewart, M.D., represents a good faith effort to
                                                               comply with the definition of an expert report in
                                                               Subsection (r)(6) of the Medical Liability and Insurance
       Constitutional Challenges to Section 13.01              Improvement Act,1 and therefore the trial court abused its
                                                               discretion when it dismissed the plaintiff’s claims with
In two points of error 13, Strom contends that (1) the         prejudice. Accordingly, I respectfully dissent.
dismissal of her suit with prejudice violates her state and
federal constitutional guarantees of due process of law,       I note that this is not a case involving the failure to file an
equal protection of the law, and right to a jury trial; and    expert report, and *228 this is not a case involving the
(2) the trial court abused its discretion in dismissing        filing of a late expert report. Rather, this case involves a
Strom’s claims for fraud, intentional and fraudulent           timely-filed expert report. The issue is whether the
misrepresentations, and “unnecessary surgery” because          defendants’ challenges to the adequacy of the expert
these causes of action are not issues relating to a “medical   report should have been granted, resulting in the dismissal
standard” under article 4590i.                                 of plaintiff’s case with prejudice.
[18]
     Strom correctly asserts that article 4590i places a       If a plaintiff timely files an expert report and the
heavy burden on medical malpractice plaintiffs to comply       defendant moves to dismiss because of the report’s
with very specific requirements and that the sanction for      inadequacy, the trial court must grant the motion “only if
failing to comply is severe, but neither violates              it appears to the trial court, after hearing, that the report
constitutional guarantees. See Schorp v. Baptist Mem’l         does not represent a good faith effort to comply with the
Health Sys., 5 S.W.3d 727, 737–38 (Tex.App.-San                definition of an expert report in Subsection (r)(6) of this
Antonio 1999, no pet.); McGlothlin v. Cullington, 989          section.” TEX.REV.CIV. STAT. ANN.. Art. 4590i, §
S.W.2d 449, 452–53 (Tex.App.-Austin 1999, pet. denied).        13.01(l ) (Vernon Supp.2003) (emphasis added); Bowie
[19]                                                           Memorial Hosp. v. Wright, 79 S.W.3d 48, 51–52
   As for Strom’s contention that her claims exceeded the      (Tex.2002). To constitute a “good-faith effort,” the report
scope of article 4590i, settled law compels that all claims    must provide enough information to fulfill two purposes:

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



(1) it must inform the defendant of the specific conduct              fail to take necessary precautions to pad and avoid
the plaintiff has called into question, and (2) it must               the placement of the leg/knee in an abnormal
provide a basis for the trial court to conclude that the              position by strapping the patient to prevent
claims have merit. Bowie, 79 S.W.3d at 52. A Court                    movement during surgery.
reviews the information contained within the four corners
of the report to determine whether it constitutes a “good-
faith effort” to provide a fair summary of the expert’s          C. Breach
opinions about the standard of care, breach, and causal
connection between breach and injury. Id.                             It is my expert opinion, based upon a reasonable
                                                                      medical probability, that the knee injuries suffered
                                                                      by the patient were due to the failure of the operating
                                                                      room personnel to exercise *229 ordinary care, or
                                                                      negligence of the operating room personnel, in
                Claims against the Hospital                           placing and maintaining her position on the
                                                                      operating room table.
Dr. Callewart’s report reads, in relevant part:

                                                                 D. Causal Connection

A. Injury                                                             The knee injuries described in the MRI do not occur
                                                                      when the customary and usual standards of care are
     Based upon evaluation by MRI, x-ray, and a cervical              exercised in the positioning and strapping a patient
     myelogram in August and September 1996, Dr. John                 on the operative table. However, the injuries can
     Berry suggested a cervical decompression bilaterally             occur when the hospital’s operating room personnel
     of C7–T1, and possibly re-explore C5–6 bilaterally.              fail to take necessary precautions to pad and avoid
     This surgery was performed on October 4, 1996, at                the placement of the leg/knee in an abnormal
     the Memorial Hospital Southwest in Houston, Texas.               position by strapping the patient to prevent
     This surgery resulted in the patient sustaining an               movement during surgery.... On a follow up of her
     acute traumatic injury in the patient’s left knee                knee pain January 8, 1997, it was noted that
     probably associated with improper positioning of                 ‘apparently during her recent surgery, her knees were
     padding of the knee/leg, the patient being                       taped in an untoward position, resulting in some
     presumably in a sitting position. The patient suffered           problems. Difficult to know exactly what, but it is
     immediate pain and swelling of the knee                          felt that she has some cartilage torn in the left
     postoperatively, with difficulty walking.                        knee.’.... It is my expert opinion, based upon a
                                                                      reasonable medical probability, that the knee injuries
            On October 23, 1996, it is reported that the              suffered by the patient were due to the failure of the
            patient complains of left knee pain and hobbling          operating room personnel to exercise ordinary care,
            on the left knee, which is swollen, with                  or negligence of the operating room personnel, in
            decreased range of motion and tenderness. A               placing and maintaining her position on the
            MRI of the left knee on November 1, 1996,                 operating table.
            showed a horizontal tear through the posterior       Does Dr. Callewart’s report provide enough
            horn of the medial meniscus, extending to the        information to inform the defendant Hospital of the
            inferior articular surface near the free edge, and   specific conduct the plaintiff has called into question,
            a small inferior surface tear of the medial          and to provide a basis for the trial court to conclude
            meniscus at the junction of the posterior horn       that the claims have merit?
            and body segment, and a grade I medial
            collateral ligament sprain.                          Clearly, Dr. Callewart’s report gives notice that the
                                                                 manner in which the hospital personnel strapped the
                                                                 plaintiff to the operating table was called into question.
B. Standard of Care                                              The standard of care requires hospital personnel to take
                                                                 necessary precautions to pad and avoid the placement of
     The knee injuries described in the MRI do not occur
                                                                 the leg/knee in an abnormal position by strapping
     when the customary and usual standards of care are
                                                                 (standard of care); a medical report indicated that
     exercised in the positioning and strapping a patient
                                                                 plaintiff’s knees were taped in an untoward position on
     on the operative table. However, the injuries can
                                                                 the operating table, and based on a reasonable medical
     occur when the hospital’s operating room personnel

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



probability, it was Dr. Callewart’s expert opinion that the               reports that she had no prior history of knee
plaintiff’s knee injuries were due to the failure of the                  related complaints prior to surgery in question.
hospital personnel to properly place and maintain                         Dr. Blum performed the menisectomy on
plaintiff’s position on the operating table (breach and                   February 12, 1997. On March 3, 1997, it is
causal connection).                                                       reported that she is doing fantastic after
                                                                          surgery. However, on April 19, 1997, Dr. Blum
This case is unlike the Palacios case. American                           indicates the patient needs a total knee
Transitional Care Centers v. Palacios, 46 S.W.3d 873                      replacement, and on July 28, 1997, reports that
(Tex.2001). In Palacios, the patient fell from his bed, and               she is scheduled for a total knee replacement on
the expert opined that “precautions to prevent [the                       August 1, 1997.
patient’s] fall were not properly utilized.” Id. at 880. The
supreme court held that this was not a statement of a                (Emphasis added). Dr. Blum performed the total
standard of care because neither the trial court nor the             knee replacement surgery on the plaintiff.
defendant would be able to determine from this statement
if the doctor “believes that the standard of care required
[defendant] to have monitored Palacios more closely,             B. Standard of Care
restrained him more securely, or done something else
entirely.” Id. In contrast, the expert’s report in the present       The surgery would ... violate the standards of care
case puts the trial court and the defendant on notice of the         which would be expected to be exercised by a
conduct complained of, i.e. that the hospital personnel              reasonable and prudent orthopedic surgeon under the
failed to properly pad and place the leg/knee in a normal            same or similar circumstances.
position when strapping the plaintiff to the operating
table—by taping the leg in an untoward and abnormal
                                                                 C. Breach
position, a tearing injury was caused to the plaintiff’s
knee.                                                                Based upon the records, it is my expert opinion that
                                                                     the total knee and carpal tunnel releases were not
Under the guiding principles set out in Bowie and                    medically indicated. There is no justification or very
Palacios, Dr. Callewart’s report constitutes a good-faith            clear indication in the chart for the surgery. There is
effort to provide a fair summary of the doctor’s opinions            some suggestion she had severe arthritis in the knee;
about the standard of care, breach and causal connection.            however, this is not consistent with what was
Accordingly, the trial court abused its discretion when it           reported in the knee at the time of the prior surgery
granted the defendant’s motion challenging the adequacy              or other evaluations of the knee. If she had severe
of the report resulting in a dismissal, *230 with prejudice,         degenerative joint disease, this could not have
of the plaintiff’s claims against the hospital.                      occurred in a several months time frame from when
                                                                     she had the surgery of the neck or from the time of
                                                                     February 12, 1997, surgery.

                                                                          Based upon a reasonable medical probability,
                 Claims against Dr. Blum
                                                                          the records indicate no medical basis of reason
Dr. Callewart’s report reads, in relevant part:                           for the total knee replacement in a woman in
                                                                          her middle 50’s who weighs 240 lbs, who had
                                                                          reportedly a normal knee prior to the operative
                                                                          room injury. The surgery would therefore
A. Injury                                                                 violate the standards of care which would be
                                                                          expected to be exercised by a reasonable and
     “I have reviewed the medical records furnished in                    prudent orthopedic surgeon under the same or
     the case of Myrna Strom....”                                         similar circumstances, and gross negligence to
                                                                          submit such a patient to unnecessary surgery.
            In February of 1997, she was seen by Dr. Henry
            Blum, an orthopedic surgeon, with her chief
            complaint involving her left knee. X-rays            D. Causal Connection
            showed degenerative changes with medial joint
            space narrowing and some calcification in the            Based upon the records, it is my expert opinion that
            notch, and his impression of torn medial                 the total knee and carpal tunnel releases were not
            meniscus and chondromalacia. Again, he                   medically indicated. There is no justification or very

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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)



     clear indication in the chart for the surgery.... Based                             breached his or her duty to a patient
     upon a reasonable medical probability, the records                                  cannot be determined absent
     indicate no medical basis of reason for the total knee                              specific information about what the
     replacement....                                                                     defendant should have done
Does Dr. Callewart’s report provide enough                                               differently.
information to inform the defendant Doctor of the
specific conduct the plaintiff has called into question,                  Id. at 880. In the present case, the expert’s report
and to provide a basis for the trial court to conclude                    identified the standard of care for an orthopedic surgeon,
that the claims have merit?                                               and specifically stated what care was expected, but not
                                                                          given, i.e., a diagnosis and action based on what is
*231 It is clear from Dr. Callewart’s report that the                     medically indicated, not the performance of unnecessary
conduct called into question is the performance of a total                major surgery.
knee replacement operation, when such surgery was
unnecessary. The report provides a fair summary of Dr.                    Once again, under the guiding principles set out in Bowie
Callewart’s opinions about the standard of care (that                     and Palacios, Dr. Callewart’s report constitutes a good-
which would be expected to be exercised by a reasonable                   faith effort to provide a fair summary of his opinions
and prudent orthopedic surgeon under the same or similar                  about the standard of care, breach, and causal connection.
circumstances), breach (performing “unnecessary” knee                     Accordingly, the trial court abused its discretion when it
replacement surgery, which is “not medically indicated”,                  granted the defendant doctor’s motion challenging the
for which there is “no justification ... in the chart”), and              adequacy of the report resulting in a dismissal, with
causal connection (the breach of the applicable standard                  prejudice, of the plaintiff’s claims against the defendant,
of care caused the injury of unnecessary knee replacement                 Dr. Blum.
surgery).

With regard to standard of care, the Texas Supreme Court
stated in Palacios:
                                                                                                  CONCLUSION
            The standard of care for a hospital                           We should sustain appellant Strom’s points of error one
            is what an ordinarily prudent                                 through seven, reverse the judgment, and remand the case
            hospital would do under the same                              to the trial court.
            or similar circumstances. ....
            Identifying the standard of care is
            critical: Whether a defendant

Footnotes
*      This case was originally submitted to a panel consisting of Justices Taft, Mirabal, and retired Justice Jackson B. Smith, Jr. Upon
       Justice Smith’s recusal, Justice George C. Hanks, Jr., who was appointed to this Court on December 31, 2002, is participating
       by assignment.
**     The Honorable Margaret Garner Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, participating by
       assignment.
1      See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d), (r)(6) (Vernon Supp.2003).

2      Strom provided her experts’ reports to counsel for the hospital on April 1, 1999. It is undisputed that the experts’ reports were
       timely by agreement of counsel signed in accordance with rule 11 of the Rules of Civil Procedure and as authorized by section
       13.01(h) of article 4590i. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003); TEX.R. CIV. P. 11.
3      TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003)

1      TEX.REV.CIV. STAT. ANN.. Art. 4590i, § 13.01(r)(6) (Vernon Supp.2003).




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Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)




End of Document                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     11
Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)




                   169 S.W.3d 241
              Court of Appeals of Texas,                                             OPINION
              Corpus Christi–Edinburg.
                                                             Opinion by Justice GARZA.
            Sherrie TAYLOR, Appellant,
                         v.                                  Sherrie Taylor appeals from the decision of the trial court
      CHRISTUS SPOHN HEALTH SYSTEM                           to grant a motion to dismiss her cause of action for
  CORPORATION, d/b/a Christus Spohn Hospital                 medical malpractice based on the inadequacy of her
 Shoreline, Team Health Southwest, L.P., Arthur G.           expert report. Because the trial court did not abuse its
 Wright, Jr., M.D., Coastal Cardiology Association,          discretion in determining that Taylor’s expert report failed
 Charles J. Schecter, M.D., Raymond H. Graf, M.D.            to comply with the statutory requirements established by
          a/k/a Ray Graf, M.D., Appellees.                   the Medical Liability Insurance Improvement Act,1 we
                                                             affirm.
 No. 13–03–368–CV. | July 29, 2004. | Rehearing
           Overruled Aug. 30, 2005.                          Taylor, individually and as heir and representative of the
                                                             estate of Ronald C. Taylor, deceased, brought suit against
                                                             appellees, Christus Spohn Health System d/b/a Christus
Synopsis
Background: Widow, individually and as heir and              Spohn Hospital Shoreline, Team Health Southwest, L.P.,
representative of deceased husband’s estate, brought         Arthur G. Wright Jr., M.D., Coastal Cardiology
medical malpractice action against various health care       Association, Charles J. Schecter, M.D., and Raymond H.
defendants for alleged negligent failure to manage and       Graf, M.D. Taylor alleged that the death of her husband,
timely diagnose husband’s cardiac condition and for          Ronald, was due to appellees’ negligence in failing to
failure to perform tests necessary for diagnosis.            manage and timely and accurately diagnose Ronald’s
Defendants filed motion to dismiss based on expert           cardiac condition and in failing to perform tests necessary
report. Following a hearing, the 319th District Court,       to diagnose and recognize Ronald’s condition. In
Nueces County, Thomas Greenwell, J., granted the             compliance with article 4590i, section 13.01 of the Texas
motion. Widow appealed.                                      civil statutes, Taylor filed an expert report by James
                                                             Watson, M.D., accompanied *243 by Dr. Watson’s
                                                             curriculum vitae. See TEX. CIV. PRAC. & REM.CODE
                                                             ANN. § 74.351 (Vernon Supp.2004).2
[Holding:] The Court of Appeals, Garza, J., held that
expert report was not good faith effort to comply with       The defendants filed a motion to dismiss based on Dr.
statutory requirements.                                      Watson’s expert report. The trial court granted their
                                                             motion after a hearing.3 Taylor now brings this appeal
                                                             alleging that the trial court abused its discretion by
Affirmed.                                                    granting the motion to dismiss. Specifically, Taylor
                                                             argues that she demonstrated the required good faith
                                                             effort to show compliance with the requirements of article
Attorneys and Law Firms                                      4590i, section 13.01. Appellees respond that the report
                                                             was conclusory and that it improperly grouped all the
*242 Cage Wavell, Corpus Christi, for appellant.             defendants together, thereby failing to specifically address
                                                             the standard of care and breach of duty with respect to
William A. Abernethy, John S. Langley, Meredith,             each defendant.
Donnell & Abernethy, Clay E. Coalson, Donnell &
Abernethy, Thomas F. Nye, Douglas M. Kennedy, Brin &
Brin, P.C., Corpus Christi, for appellees.

Before Justices Y NEZ, RODRIGUEZ, and GARZA.                          Applicable Law and Standard of Review

                                                             In order to bring a medical malpractice claim, a plaintiff
                                                             must comply with the requirements for filing an expert
                                                             report. Under the statute applicable at the time this report
                                                             was filed, a claimant had to provide for each physician or

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Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)



health care provider one or more expert reports within one     regarding breach and causation); Rittmer v. Garza, 65
hundred and eighty days of filing a health care liability      S.W.3d 718, 722–23 (Tex.App.-Houston [14th Dist.]
claim. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, §     2001, no pet.) (expert report inadequate because it
1, 1995 Tex. Gen. Laws 985 (repealed 2003). 4 An expert        referred to defendants collectively and did not explain
report is defined as “a written report by an expert that       causal relationship between each defendant’s individual
provides a fair summary of the expert’s opinions as of the     acts and injury); Whitworth v. Blumenthal, 59 S.W.3d
date of the report regarding applicable standards of care,     393, 396 (Tex.App.-Dallas 2001, no pet.) (“the report ...
the manner in which the care rendered by the physician or      does not identify any particular defendant to which it
health care provider failed to meet the standards, and the     applies and instead generally asserts ‘the health care
causal relationship between that failure and the injury,       providers’ failed to meet the standard of medical care.”).
harm, or damages claimed.” TEX. CIV. PRAC. &
                                                               [6] [7]
REM.CODE ANN. § 74.351(r)(6).                                       We review the trial court’s ruling on the adequacy of
                                                               an expert report under an abuse of discretion standard.
[1] [2] [3] [4]
            When presented with an expert report, the trial    Palacios, 46 S.W.3d at 877; Doades, 94 S.W.3d at 671.
court must determine whether it represents a good faith        Under this standard, the appellate court may not disturb
effort to comply with the statutory definition of expert       the trial court’s resolution, even if the appellate court
report. American Transitional Care Ctrs. of Tex., Inc. v.      would have decided differently, unless the resolution is
Palacios, 46 S.W.3d 873, 878 (Tex.2001). The statute           shown to be arbitrary and unreasonable. Doades, 94
requires that the report include a fair summary of the         S.W.3d at 671; see Walker v. Packer, 827 S.W.2d 833,
expert’s opinions for each defendant. Palacios, 46 S.W.3d      839–40 (Tex.1992). A trial court’s resolution of a factual
at 878. If the court finds, after a hearing, that the report   issue is arbitrary and unreasonable if the appellant
does not represent a good faith effort to comply with the      establishes that the trial court could reasonably have
statute, the court shall “grant a motion challenging the       reached only one decision. Doades, 94 S.W.3d at 671.
adequacy of [the] expert report.” TEX. CIV. PRAC. &
REM.CODE ANN. § 74.351(l ). Although an expert
report does not need to marshal and present all the
plaintiff’s proof of malpractice, it must include the
expert’s opinion on each of the elements identified in the                             Analysis
statute. Palacios, 46 S.W.3d at 878. Essentially, the report   [8]
must: (1) inform the defendant of the specific conduct the         Taylor asserts that the expert report she submitted
plaintiff has called into question; and (2) provide a basis    adequately fulfilled the requirements of article 4590i,
for the trial court to conclude that the claims have merit.    section 13.01. Appellees argue in response that the report
Id. at 879. A report that merely states the expert’s           was inadequate because it lumped all of them together,
conclusions about each element (standard of *244 care,         failed to delineate what each individual party was
breach, and causation) does not fulfill these purposes. Id.    supposed to do, and failed to identify how each failed to
                                                               perform. Appellees also allege that the report is
[5]
    An expert report may not assert that multiple              conclusory with regard to negligence and causation.
defendants are all negligent for failing to meet the
standard of care without providing an explanation of how       Dr. Watson’s expert report opined generally that:
each defendant specifically breached the standard and
how that breach caused or contributed to the cause of                      [T]he cause of death in the case of
injury. See Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d                  Ronald Clayton Taylor was
636, 638 (Tex.App.-Dallas 2003, pet. denied) (“the expert                  myocardial infarction due to
report must provide, for each defendant, a fair summary                    coronary artery disease and ... his
of the expert’s opinions with respect to ... standard of                   death, more likely than not, would
care, breach of that standard and causation.”); Wood v.                    have been avoided had the patient
Tice, 988 S.W.2d 829, 831 (Tex.App.-San Antonio 1999,                      undergone      diagnostic   cardiac
pet. denied) (“The report must specifically refer to the                   imaging and cardiac catheterization
defendant and discuss how that defendant breached the                      prior to his demise, as should have
applicable standard of care.”). Collective assertions of                   been done, but was not done. The
negligence against various defendants are inadequate. See,                 failure to diagnose and treat this
e.g., Doades v. Syed, 94 S.W.3d 664, 671–72 (Tex.App.-                     condition was negligence by Dr.
San Antonio 2002, no pet.) (expert report inadequate                       Wright (ER Physician), Team
because it failed to set forth standard of care for each                   Health Southwest, L.P., Coastal
defendant individually and contained mere conclusions                      Cardiology, Charles Schecter, M.D.

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                              2
Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)



             (cardiologist), Raymond Graf,                      to whom the information should have been directed, nor
             M.D. (cardiologist), and Spohn                     does he explain who should have been responsible for
             Hospital Shoreline Emergency                       transmission of Ronald’s chart to cardiology. See Rittmer,
             Room, and that negligence was a                    65 S.W.3d at 722–23. Dr. Watson also fails to explain
             proximate cause of the injury and                  how the failure to achieve effective communication was a
             death of Ronald Clayton Taylor.                    proximate cause of Ronald’s death; he asserts that the
                                                                information should have been included on Ronald’s
*245 The report goes on to describe what occurred when          assessment prior to his undertaking an exercise stress test
Ronald came to the emergency room at Spohn Hospital             administered by a cardiologist, but does not explain how,
complaining of chest pains.                                     if at all, this information would have altered the outcome
                                                                of the cardiology assessment and stress test, and, further,
Ronald was apparently examined in the emergency room            how any of this relates to the cause of Ronald’s death. See
by Dr. Wright and sent to the cardiologist without being        Palacios, 46 S.W.3d at 879.
discharged. Dr. Watson asserts that it was negligent of Dr.
Wright, Team Health Southwest, and Spohn Hospital to            At the end of the report, Dr. Watson asserts that, given
fail to complete discharge procedures and patient               Ronald’s patient history, the standard of care requires that
education with Ronald before sending him to cardiology.         diagnostic imaging be undertaken to assess the presence
He does not, however, present the standards of care             of existent myocardial damage and that an eight-to-
relevant to each of the three different parties. Dr. Watson     twelve-hour period of assessment should have elapsed
further asserts that such negligence was a proximate cause      prior to discharge in order to have definitively determined
of Ronald’s death. However, he fails to explain what each       whether there was a need to proceed with cardiac
of these three parties should have done and what they           catheterization. He notes that this was not done for
failed to do. This portion of the expert report fails to meet   Ronald and concludes, “[a]s such the care of Dr. Wright
the standard because it is both conclusory in nature and        (ER Physician), Team Health Southwest, L.P., Coastal
fails to specify each defendant’s individual negligent          Cardiology, Charles Schecter, M.D. (cardiologist),
conduct. See Palacios, 46 S.W.3d at 879.                        Raymond Graf, M.D. (cardiologist), and Spohn Hospital
                                                                Shoreline Emergency Room was negligent, and this
In the next paragraph of the report, Dr. Watson discusses       negligence was a proximate cause of the death of Ronald
the interaction between the various doctors and asserts         Clayton Taylor.” This portion of the report fails to state
that the standard of care required effective                    what each defendant should have done in order to meet
communication between the various care providers                the standard of care, what each defendant failed to do, and
regarding the patient’s condition. He concludes without         how *246 such failure led to Ronald’s death. See id. Dr.
further explanation:                                            Watson simply states that various procedures that should
                                                                have occurred did not, without specifying which party
             In the case of Ronald Clayton                      was responsible for undertaking which procedures. The
             Taylor, such communication was                     parties he lists include an emergency room physician, a
             not effectively achieved and as                    hospital, and a cardiology association, among others, each
             such was negligent and below the                   of which owed different duties to the deceased; however,
             ordinary standard of care and this                 Dr. Watson presents only a single standard of care and
             negligence was a proximate cause                   asserts that it is equally applicable to all parties involved.
             of the death of Ronald Clayton
             Taylor. Specifically, there is no                  Under our appellate standard of review, we may not
             record of the patient’s chart                      reverse a trial court’s determination regarding an expert
             accompanying      him     to   the                 report unless that determination is clearly arbitrary and
             consultative appointment.                          unreasonable. See Doades, 94 S.W.3d at 671. Having
                                                                reviewed the expert report provided by Taylor, we find it
Dr. Watson names all six appellees as having failed to          was not an abuse of discretion for the trial court to
meet this standard of medical care.                             conclude that the report did not represent a good faith
                                                                effort to comply with section 13.01(r)(6). See Palacios,
Again, this portion of the report does not meet the             46 S.W.3d at 880. Thus, the trial court did not err in
statutory requirements for expert opinions, as Dr. Watson       dismissing the case. Accordingly, we affirm.
fails to address the standard of care for each defendant
and how each defendant failed to meet such standard. He
does not explain which defendant should have
communicated information about Ronald’s condition, or

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)




Footnotes
1     Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (former TEX.REV.CIV. STAT. ANN.. art.
      4509i § 13.01) (repealed 2003) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2004)).
2     Taylor filed her report in March of 2003. At the time, section 13.01 of article 4509i established the statutory requirements for
      expert reports. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985 (repealed 2003). Article 4590i
      was repealed in September of 2003, and the requirements for filing an expert report now appear in section 74.351 of the Texas
      Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351.
3     Taylor filed a motion requesting that she be granted an additional thirty days in order to file a compliant expert report. The trial
      court denied this motion after a hearing, a decision that Taylor has not appealed to this Court.
4     Under the current version of the statute, a claimant has one hundred and twenty days to file this report. See TEX. CIV. PRAC.
      & REM.CODE ANN. § 74.351(a).




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      4
Taylor v. Fossett, 320 S.W.3d 570 (2010)




                                                               order and remand to the trial court for the limited
                                                               purposes of determining Dr. Taylor’s reasonable
                   320 S.W.3d 570
               Court of Appeals of Texas,                      attorney’s fees and costs and for entry of a final order
                         Dallas.                               dismissing Fossett’s claims with prejudice.

      Roosevelt TAYLOR, Jr., M.D., Appellant,
                       v.
           LaToya FOSSETT, Appellee.
                                                                                     Background
       No. 05–09–01271–CV. | Aug. 25, 2010.
                                                               Given the procedural posture of this case, we draw the
                                                               facts from the allegations in Fossett’s petition. On
Synopsis                                                       November 1, 2006, Fossett was admitted under Dr.
Background: Patient brought healthcare liability action        Taylor’s care to Mesquite Community Hospital for
against physician, arising out of contraction of methicillin   induction of labor. There were complications with the
resistant staphylococcus aureus (MRSA). The County             delivery and Dr. Taylor performed a cesarean section
Court at Law No. 4, Dallas County, William Ken                 birth. A few days later, an infection developed in the
Tapscott, Jr., denied physician’s motion to dismiss.           cesarean section incision. According to Fossett, Dr.
Physician appealed.                                            Taylor failed to culture the infection and failed to
                                                               document abdominal fascial integrity during Fossett’s
                                                               hospitalization. Fossett was discharged from the hospital
                                                               on November 4, 2006. She was seen by Dr. Taylor in his
[Holding:] The Court of Appeals, Fillmore, J., held that       office three days later on November 7, 2006. Dr. Taylor
expert’s report failed to adequately establish causation       evaluated Fossett’s condition and prescribed the oral
element required in action.                                    antibiotic Keflex. According to Fossett, Dr. Taylor failed
                                                               at that time to culture the incision infection and to
                                                               document abdominal fascial integrity. On November 9,
Reversed and remanded with instructions.                       2006, Fossett went to the Baylor Hospital Emergency
                                                               Department. She was diagnosed with cellulitis,
                                                               hospitalized, and placed on intravenous antibiotics. A
Attorneys and Law Firms                                        bacterial culture showed the infection to be methicillin
                                                               resistant staphylococcus aureus (MRSA). Fossett was
*571 J. Wade Birdwell, D. Michael Wallach, Leslie Ann          hospitalized for two weeks. While hospitalized, Fossett
Dillon Thomas, Wallace, Andrews & Stouffer, P.C., Fort         underwent two surgical procedures relating to wound
Worth, TX, for Appellant.
                                                               dehiscence and drainage from the incision. According to
                                                               Fossett, she continues to suffer bowel and abdominal
Douglas Michael Wood, Law Firm of Douglas Wood,
                                                               pain, has permanent scarring and disfigurement of her
Dallas, TX, for Appellee.
                                                               abdomen, and will require plastic surgery.
Before Justices MOSELEY, BRIDGES and FILLMORE.
                                                               Fossett filed suit against Dr. Taylor. Fossett alleges that
                                                               Dr. Taylor’s failure *572 following a caesarian section to
                                                               timely diagnose and treat her for an incision infection,
                                                               wound dehiscence and cellulitis involving MRSA
                                                               proximately caused her to suffer injuries and otherwise
                        OPINION                                avoidable surgical intervention. Fossett contends Dr.
                                                               Taylor was negligent in (1) failing to diagnose incision
Opinion By Justice FILLMORE.                                   infection, wound dehiscence and cellulitis; (2) failing to
                                                               timely communicate with the patient and document
This interlocutory appeal follows the trial court’s refusal    cellulitis; and (3) failing to document abdominal fascial
to dismiss LaToya Fossett’s health care liability claims       integrity, obtain bacterial cultures, evaluate for and
against Roosevelt Taylor, Jr., M.D. Dr. Taylor contends        administer appropriate medical care, including
the trial court erred by denying his motion to dismiss,        hospitalization, and treat spreading cellulitis.
which challenged the sufficiency of Fossett’s initial and
supplemental expert reports, and by denying him
attorney’s fees and costs. We reverse the trial court’s
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  1
Taylor v. Fossett, 320 S.W.3d 570 (2010)



Pursuant to section 74.351 of the Texas Civil Practice and      Dr. Taylor’s failure to meet to (sic) the applicable
Remedies Code, Fossett served Dr. Taylor with an expert         standard of care, as described above, in all medical
report prepared by Dr. Adam S. Levine, a practicing             probability, was the proximate cause of the injuries
obstetrician and gynecologist, in support of her claims. In     LaToya Fossett suffered. As a result of Dr. Taylor’s
his expert report, Dr. Levine asserted that Dr. Taylor          failure to meet the applicable standard of care LaToya
deviated from the accepted standard of care for post-           Fossett required: *573 1) At least one surgical wound
operative surgical wound infection and his deviations           exploration that might not have been necessary; 2) A
from the standard of care were the proximate cause of           hospital stay that was longer than should have been
Fossett’s complications and injuries. In his report, Dr.        necessary had she been admitted 48 hours sooner; 3) A
Levine stated:                                                  longer recovery than should have been necessary had
                                                                she been admitted 48 hours sooner; 4) a larger scar; and
  Dr. Taylor provided LaToya Fossett with ante- and             5) continued abdominal pain and discomfort.
  post- natal care. Dr. Taylor performed LaToya
  Fossett’s cesarean section, which included making the       Dr. Taylor challenged the legal sufficiency of Dr.
  surgical incision which ultimately became infected. Dr.     Levine’s report as failing to comply with the statutory
  Taylor breached the standard of care because: 1)            requirements of section 74.351 and moved to dismiss
  neither a weight nor a blood pressure were recorded on      Fossett’s health care liability claims with prejudice
  the first post-operative visit for LaToya Fossett; 2)       pursuant to section 74.351(b). See TEX. CIV. PRAC. &
  aside from a foul odor and draining, no information         REM.CODE ANN. § 74.351(b) (Vernon Supp. 2009) (if
  was recorded with regard to when the pain became            health care liability claimant does not serve expert report
  worse, when the drainage began, or whether there was        as required, the trial court must, upon motion by affected
  any redness or swelling; 3) no documentation was            health care provider or physician, dismiss claim with
  provided with regard to the size or extent of the wound     prejudice). He argued the report was legally insufficient
  infection and there was no documentation regarding          to satisfy the statutory requirements because Dr. Levine’s
  fascial integrity; 4) no bacterial wound cultures were      opinions regarding the alleged violations of the standard
  taken; 5) Dr. Taylor prophylactically prescribed the        of care and the alleged causal connection between such
  same antibiotics that had no impact earlier in LaToya       violations and injuries and damages claimed by Fossett
  Fossett’s pregnancy; 6) Dr. Taylor failed to order re-      were conclusory. After a hearing, the trial court concluded
  evaluation within 24 to 48 hours and instead ordered it     Dr. Levine’s report was insufficient under section 74.351.
  for a week later; 7) Dr. Taylor ordered wound               The trial court, however, granted Fossett a thirty-day
  compresses but failed to document or instruct LaToya        extension under section 74.351(c) “to cure a causation
  Fossett any (sic) form of wound care, irrigation or         deficiency” in her expert’s report:
  cleaning.
                                                                          namely, whether in Dr. Levine’s
  Because Dr. Taylor documented a surgical wound                          opinion, Dr. Taylor’s failure to
  infection with “copious pus” and failed to provide                      meet the appropriate standard of
  LaToya Fossett with treatment in accord with the                        care in post-surgical wound care
  standard of care, Fossett required admission to Baylor                  more likely than not or within
  Hospital. Unfortunately, this admission was within 48                   reasonable medical probability
  hours of Dr. Taylor’s evaluation and order to follow-up                 caused LaToya Fossett to have one
  one week later. At Baylor Hospital, LaToya Fossett                      or more exploratory surgeries. The
  was evaluated according to the standard of care and                     current language in the report is
  ultimately subjected to two surgical wound                              insufficient     regarding      the
  explorations, a prolonged hospital stay, a larger                       exploratory surgeries.
  incision and scar, and long-standing abdominal pain.
  Had Dr. Taylor appropriately evaluated and treated          See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c)
  LaToya Fossett in a timely fashion according to the         (trial court may grant extension to party that failed to
  standard of care, she might have been admitted to the       serve expert report because timely served report found to
  hospital earlier and required only one, if any, surgical    be deficient). The trial court overruled any other
  wound explorations (sic). She would most likely not         objections to the report.
  have required two surgeries. Had Dr. Taylor
  appropriately evaluated and treated LaToya Fossett she      Within the thirty-day extension period, Fossett served a
  would not have required as prolonged a hospital stay        supplemental report prepared by Dr. Levine. Dr. Levine’s
  because the infection got worse each day and smaller        supplemental report stated:
  infections are easier to treat than larger infections.

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 2
Taylor v. Fossett, 320 S.W.3d 570 (2010)



  My original opinions regarding the medical care Dr.           Dr. Levine was sufficient and satisfied the requirements
  Taylor provided LaToya Fossett remain unchanged. Dr.          of section 74.351. See TEX. CIV. PRAC. & REM.CODE
  Taylor failed to meet an appropriate standard of care         ANN. §§ 74.351(l ), 74.351(r)(6).
  for a post-surgical wound. Specifically, Dr. Taylor
  failed to timely examine, culture, investigate or treat       The trial court denied Dr. Taylor’s motion to dismiss.
  what was an obvious post-surgical wound                       Pursuant to section 51.014(a)(9) of the civil practice and
  complication. Dr. Taylor’s failure to examine, culture,       remedies code, Dr. Taylor brought this interlocutory
  investigate or treat LaToya Fossett’s surgical wound          appeal challenging the trial court’s denial of his motion to
  more likely than not and within a reasonable degree of        dismiss. See TEX. CIV. PRAC. & REM.CODE ANN. §
  medical probability caused LaToya Fossett to have one         51.014(a)(9) (Vernon 2008).
  or more exploratory surgeries and debridements. Dr.
  Taylor should have appropriately examined LaToya
  Fossett.

  Further, Dr. Taylor should have recognized the                          Standard of Review and Applicable Law
  possibility of MRSA infection because MRSA                    [1] [2]
  infections are common iatrogenic infections in                      Dr. Taylor asserts the trial court abused its discretion
  hospitals. Had Dr. Taylor examined or cultured LaToya         when it denied his motion to dismiss because Dr. Levine’s
  Fossett’s surgical wound, Dr. Taylor might have               original and supplemental expert reports, whether
  properly diagnosed MRSA and begun treatment with              considered separately or collectively, are legally and
  appropriate antibiotic therapy it (sic) is more likely than   factually insufficient and conclusory. We review a trial
  not that LaToya Fossett would not have required               court’s order on a motion to dismiss a health care liability
  subsequent surgeries which resulted in significant pain       claim for an abuse of discretion. See Am. Transitional
  and permanent scarring.                                       Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, 875
                                                                (Tex.2001); Nexion Health at Terrell Manor v. Taylor,
  Finally, it is my opinion, based on a reasonable degree       294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A
  of medical probability, that Dr. Taylor deviated from         trial court has no discretion in determining what the law is
  the accepted standard of care in this case and that his       or in applying the law to the facts. See Walker v. Packer,
  deviations from the standard of care caused LaToya            827 S.W.2d 833, 840 (Tex.1992) (orig. *575 proceeding).
  Fossett’s injuries.                                           An abuse of discretion occurs if the trial court clearly fails
                                                                to analyze or apply the law correctly. Id.
*574 Dr. Levine’s supplemental report added one opinion
                                                                [3]
on causation that was not contained in his original report:        Under section 74.351 of the civil practice and remedies
“Had Dr. Taylor examined or cultured LaToya Fossett’s           code, any person who brings suit asserting a health care
surgical wound, Dr. Taylor might have properly                  liability claim must, within 120 days of filing the original
diagnosed MRSA and begun treatment with appropriate             petition, provide an expert report for each physician or
antibiotic therapy it (sic) is more likely than not that        health care provider against whom a claim is asserted.
LaToya Fossett would not have required subsequent               TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).
surgeries which resulted in significant pain and permanent      “Expert report” means a written report that provides a fair
scarring.”                                                      summary of the expert’s opinions as to the applicable
                                                                standards of care, the manner in which the care rendered
Dr. Taylor again objected to the report and moved to            failed to meet those standards, and the causal relationship
dismiss Fossett’s claims for failure to serve a sufficient      between that failure and the injury, harm, or damages
expert report under section 74.351. He contended that Dr.       claimed. TEX. CIV. PRAC. & REM.CODE ANN. §
Levine’s opinions set forth in his original and                 74.351(r)(6); see also, Bowie Mem’l Hosp. v. Wright, 79
supplemental reports, whether the reports are considered        S.W.3d 48, 52 (Tex.2002). An expert report must provide
separately or collectively1, were conclusory and lack           enough information to fulfill two purposes if it is to
sufficient factual specificity with regard to the violations    constitute an objective, good faith effort to comply with
of the standard of care alleged against Dr. Taylor and the      the definition of an expert report under section
alleged causal connection between any such violations           74.351(r)(6). The report must inform the defendant of the
and the injuries and damages claimed by Fossett. He             specific conduct the plaintiff has called into question and
further contended that the supplemental report, like the        must provide a basis for the trial judge to conclude the
original report, merely concluded that Dr. Taylor caused        claims have merit. Leland v. Brandal, 257 S.W.3d 204,
Fossett’s injuries by breaching the standard of care. After     206–07 (Tex.2008); Palacios, 46 S.W.3d at 879.
a hearing, the trial court found that the expert report of

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Taylor v. Fossett, 320 S.W.3d 570 (2010)


[4]   [5]   [6]
            An expert report need not marshal all the           opinion that had Dr. Taylor examined or cultured
plaintiff’s proof. Wright, 79 S.W.3d at 52. However, it         Fossett’s surgical wound, he might have properly
must do more than merely state the expert’s conclusions         diagnosed MRSA and begun treatment with appropriate
about the standard of care, breach, and causation; it must      antibiotic therapy, thereby avoiding subsequent surgeries,
explain the basis of the expert’s statements and link his       pain, and permanent scarring.
conclusions to the facts. Id. The report must contain
sufficiently specific information to demonstrate causation      Dr. Levine’s supplemental report incorporated his original
beyond conjecture. See, Farishta v. Tenet Healthsystem          report. Therefore, in this analysis we collectively refer to
Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort         the original and supplemental reports as Dr. Levine’s
Worth 2007, no pet.). The report must not be conclusory         “report.” Dr. Levine’s report emphasized the significance
in its explanation of causation; it must explain the basis of   of the 24 to 48 hour period following Fossett’s office
its statements sufficiently to link its conclusions to the      evaluation by Dr. Taylor:
facts. Wright, 79 S.W.3d at 52; Quinones v. Pin, 298
S.W.3d 806, 810 (Tex.App.-Dallas 2009, no pet.); see              Because of the possibility of worsening infection
also, Arkoma Basin Exploration Co. v. FMF Assocs.                 resulting in significant morbidity and mortality,
1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008)                [women with post-operative surgical incision] require
(quoting BLACK’S LAW DICTIONARY 308 (8th ed.                      both careful and frequent assessment of their surgical
2004)) (defining conclusory as “[e]xpressing a factual            wounds every 24 to 48 hours by qualified personnel
inference without stating the underlying facts on which           such as their physician, by wound management
the inference is based”). Thus, courts have reasoned that         personnel, or by home health nursing.
an expert report that describes causation in terms of mere
possibilities does not accomplish the purpose of providing        Antibiotics for minor infections may be given by
“a basis for the trial court to conclude that the claims have     mouth; provided the patient is seen within 24 to 48
merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298           hours to assess that the infection is not getting worse.
S.W.3d at 815–16.
                                                                  Dr. Taylor failed to either admit LaToya Fossett to the
[7]
    In determining whether a report complies with the             hospital or to re-evaluate her within 24 to 48 hours [of
requirements of section 74.351(r)(6), the court may not           Fossett’s office evaluation by Dr. Taylor].
look beyond the report itself, because all information
                                                                  The standard of care for evaluation and treatment of a
relevant to the inquiry should be contained within the
                                                                  post-operative surgical wound infection require[s] ...
document’s four corners. Wright, 79 S.W.3d at 52; Nexion
                                                                  either admitting the patient to a hospital or arranging
Health at Terrell Manor, 294 S.W.3d at 791. A trial court
                                                                  for close outpatient follow-up and re-evaluation within
must grant a motion to dismiss a plaintiff’s claims for
                                                                  24 to 48 hours....
failure to file an adequate expert report only if it appears
to the court, after hearing, that the report does not           According to Dr. Levine’s report, Fossett was
represent an objective good-faith effort to comply with         hospitalized “within 48 hours” of her post-operative visit
the statutory definition of an expert report. TEX. CIV.         in Dr. Taylor’s office. Fossett’s arrival at Baylor Hospital
PRAC. & REM.CODE ANN. § 74.351(l ); see also,                   occurred within the time frame Dr. Levine determined a
Palacios, 46 S.W.3d at 878.                                     re-evaluation to be appropriate and consistent with the
                                                                applicable standard of care. Had Dr. Taylor scheduled
                                                                Fossett for re-evaluation 48 hours after her post-operative
                                                                office visit, consistent with the standard of care
                         Analysis                               articulated by Dr. Levine, the progression of Fossett’s
                                                                infection and wound dehiscence presumably would have
[8]
   Dr. Levine opined in his original report2 that Dr. Taylor    been no more advanced or severe than the condition
breached the applicable *576 standard of care by failing        actually treated at Baylor Hospital following Fossett’s
to order re-examination of Fossett within 24 to 48 hours        arrival at the hospital within that same 48–hour period.
of her post-operative office visit, causing Fossett to suffer
(1) at least one surgical wound exploration that might not      Dr. Levine did not assert in his report that had Fossett
have been necessary, along with resulting scarring and          been re-evaluated by Dr. Taylor within 48 hours of her
continued pain and discomfort and (2) hospitalization and       post-operative office visit, she would have avoided
recovery that was more lengthy “than should have been           hospitalization and surgical treatment. Rather, Dr. Levine
necessary had she been admitted [to the hospital] 48 hours      opined that the duration of Fossett’s hospitalization and
sooner.” Dr. Levine’s supplemental report added the             recovery would not have been longer than it “should have
                                                                been.” Dr. Levine provided no facts in his report
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 4
Taylor v. Fossett, 320 S.W.3d 570 (2010)



concerning the expected duration of Fossett’s                  complications or surgical interventions. Dr. Levine
hospitalization and recovery in the absence of the alleged     explained neither the impact of the alleged 48–hour delay
negligence of Dr. Taylor. Accordingly, Dr. Levine’s            in re-evaluation of Fossett on the nature and severity of
report presented no factual basis for a conclusion that Dr.    the underlying infection nor in what manner the infection
Taylor’s alleged negligence resulted in a period of            developed or changed in that period of time necessitating
hospitalization and recovery that was longer than it would     surgery that otherwise would not have been required. Dr.
have been in the absence of such alleged negligence.           Levine’s report left the trial court to infer that the alleged
                                                               delay in diagnosis and treatment proximately caused the
*577 [9] Dr. Levine’s report claimed that as a result of Dr.   additional surgery, pain and scarring without actually
Taylor’s failure to meet the applicable standard of care,      providing a factual basis for the trial court to so infer. Cf.
Fossett required at least one surgical wound exploration       Mosely v. Mundine, 249 S.W.3d 775, 780 (Tex.App.-
that might not have been necessary, sustained a larger scar    Dallas 2008, no pet.) (comparative description of nodule
from additional surgery and suffered continued pain and        and growth of mass after two-year delay in diagnosis
discomfort. He asserted that if Dr. Taylor had                 provided factual basis for conclusion that failure to
“appropriately evaluated and treated Fossett in a timely       identify nodule led to invasive and aggressive treatment
fashion according to the standard of care, she might have      claimant underwent).
been admitted to the hospital earlier and required only
one, if any, surgical wound explorations (sic). She would      Dr. Levine’s report failed to articulate a causal connection
most likely not have required two surgeries.” (Emphasis        between Dr. Taylor’s care of Fossett and the injuries that
added.) Again, Dr. Levine’s standard of care did not call      allegedly resulted. Dr. Levine’s statements concerning
for wound re-evaluation until up to 48 hours from the          causation are conclusory, suggest only the possibility of
time of Fossett’s post-operative office visit with Dr.         causation, and are unsupported by a factual basis within
Taylor. Within 48 hours of Fossett’s office visit with Dr.     the four corners of the report. Considering the report and
Taylor, she was being treated at Baylor Hospital.              applicable law, we conclude the report constitutes a
Accordingly, Dr. Levine’s report presented no factual          factually and legally insufficient basis for the trial court to
basis for a conclusion that Dr. Taylor’s alleged negligence    determine whether Fossett’s claims have merit. See *578
resulted in surgical procedures, scarring, and pain that       Leland, 257 S.W.3d at 206–07. We conclude the trial
would not have occurred in the absence of such alleged         court abused its discretion in denying Dr. Taylor’s motion
negligence. Moreover, Dr. Levine’s report suggested only       to dismiss based on an inadequate expert report.
that in the absence of the alleged negligence, Fossett
                                                               [10]
might have been admitted to the hospital earlier and               Dr. Taylor asserts the trial court abused its discretion
required only one, if any, surgical wound exploration. A       in failing to award him attorney’s fees and costs. Section
description of only a possibility of causation is not          74.351(b) requires that if an expert report has not been
sufficient to satisfy requirements concerning the              served within the statutorily required period of time, upon
necessary content of an expert report. See Wright, 79          the motion of the affected physician or health care
S.W.3d at 53.                                                  provider, the trial court shall enter an order awarding
                                                               reasonable attorney’s fees and costs and dismiss the claim
Dr. Levine’s report claimed that had Dr. Taylor examined       with prejudice. TEX. CIV. PRAC. & REM.CODE ANN.
or cultured Fossett’s surgical wound, he might have            § 74.351(b); see also, Hernandez v. Ebrom, 289 S.W.3d
properly diagnosed MRSA and begun treatment with               316, 318 (Tex.2009) ( “If a timely and sufficient report is
appropriate antibiotic therapy, thereby avoiding               not served, the trial court must award the provider its
subsequent surgeries, pain, and permanent scarring. This       attorney’s fees and costs and dismiss the case with
attempt to establish causation also suffers from the           prejudice.”). Having concluded that the trial court should
infirmity that it presents only a possibility of causation.    have granted Dr. Taylor’s motion to dismiss as to
See id. Dr. Levine’s report presented no factual basis for a   Fossett’s claims, under section 74.351(b) of the civil
conclusion that had Dr. Taylor examined or cultured            practice and remedies code, the trial court erred in
Fossett’s surgical wound, properly diagnosed MRSA, and         denying Dr. Taylor’s request for reasonable attorney’s
begun treatment with appropriate antibiotic therapy, the       fees and costs of court. Accordingly, we sustain Dr.
subsequent surgical procedures, pain, and permanent            Taylor’s assertion of entitlement to his reasonable
scarring would have been avoided.                              attorney’s fees and costs under section 74.351(b).

Dr. Levine’s report omitted any factual explanation of
how any act or omission by Dr. Taylor in delaying
diagnosis and treatment of Fossett’s condition for no more
than 48 hours proximately caused additional                                             Conclusion

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      5
Taylor v. Fossett, 320 S.W.3d 570 (2010)



We reverse the trial court’s order denying Dr. Taylor’s                   of a final order dismissing Fossett’s claims against Dr.
motion to dismiss. We remand this case to the trial court                 Taylor with prejudice.
for the limited purposes of determining and awarding Dr.
Taylor reasonable attorney’s fees and costs and for entry

Footnotes
1      Dr. Levine expressly incorporated the opinions he expressed in his original expert report in his supplemental expert report. On
       appeal, Fossett contends that “taken together,” Dr. Levine’s original and supplemental reports comply with the statutory
       requirements of section 74.351. Reports may be considered together in determining whether a claimant provided a report
       meeting the statutory requirements. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(i); see also, Packard v. Guerra, 252
       S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (“If a plaintiff can rely on more than one report to satisfy
       the standard of care, breach, and causation, we see no violation of section 74.351(i) just because a plaintiff attempted to cure an
       insufficient report with supplemental reports and refiled expert reports some of which initially were found to be insufficient.”).
          We disagree with Fossett’s argument on appeal that Dr. Taylor is precluded from raising objections to Dr. Levine’s initial
          report because Dr. Taylor did not seek relief from this Court at the time of the trial court’s order regarding that report. See
          TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(9) (Vernon 2008) (no appeal may be taken from trial court’s order
          granting extension under section 74.351(c)); see also, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007) (in cases where
          report that implicated health care provider’s conduct was served and trial court granted extension under section 74.351(c),
          appellate courts are without jurisdiction to reach merits of motion to dismiss).
2      Dr. Levine’s original report contains numerous purported breaches of the standard of care by Dr. Taylor. Here, the analysis is
       dedicated to Dr. Levine’s opinions concerning alleged breaches of the standard of care that he asserts caused injury or damage.




End of Document                                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     6
Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)




                   351 S.W.3d 398
               Court of Appeals of Texas,                                              OPINION
                        El Paso.
                                                               GUADALUPE RIVERA, Justice.
   TENET HOSPITALS LIMITED, A Texas Limited
   Partnership, d/b/a Sierra Medical Center, Jaclyn            Tenet Hospitals Limited, d/b/a/ Sierra Medical Center,
  Brown, R.N., Tammy Prophet, R.N., Kayla Chavez,              Jaclyn Brown, R.N., Tammy Prophet, R.N., Kayla
  R.N., Gloria Tomasino, R.N.C. and Dee Dee Shaw,              Chavez, R.N., Gloria Tomasino, R.N.C., and Dee Dee
                  R.N., Appellants,                            Shaw, R.N., Appellants, appeal the trial court’s denial of
                          v.                                   its motion to dismiss Dalia De La Riva’s health care
  Dalia DE LA RIVA, Individually and as Parent and             liability case. In two issues on appeal, Appellants contend
    Next Friend of Daniella De La Riva, A Minor,               that the expert reports submitted by De La Riva were
                      Appellee.                                inadequate and fatally deficient to maintain their case.1
                                                               For the following reasons, we reverse.
       No. 08–10–00271–CV. | June 29, 2011.


Synopsis
Background: Patient, individually and as daughter’s                                BACKGROUND
mother, filed health care liability action against hospital,
obstetrician, nurses, and others alleging that daughter        On January 21, 2007, Dalia De La Riva went to Sierra
suffered hypoxic ischemic brain injury as result of            Medical Center, exhibiting signs of labor. However, when
inadequate care during birth. The 34th District Court, El      her obstetrician, Dr. Julio Novoa, determined that she was
Paso County, William E. Moody, J., denied defendants’          not in labor, De La Riva was discharged. Three days later,
motion to dismiss, and they appealed.                          on January 24, 2007, at 1:19 a.m., De La Riva returned to
                                                               Sierra Medical Center, having contractions two to three
                                                               minutes apart. She was admitted, and soon, it was
                                                               discovered that the fetal heart rate was non-reassuring,
Holdings: The Court of Appeals, Guadalupe Rivera, J.,
                                                               which was indicative of lack of oxygen. *401 That non-
held that:
                                                               reassuring heart rate lasted approximately two minutes.
[1]                                                            Consequently, at 1:25 a.m., Nurse Jaclyn Brown, the
   pediatric neurologist’s expert report was insufficient to
                                                               labor and deliver nurse assigned to De La Riva, called Dr.
establish causation, and
                                                               Novoa. In response, Dr. Novoa ordered that De La Riva
[2]                                                            take Pitocin, a labor induction agent.
   board certified obstetrician and gynecologist was not
qualified to provide expert opinion regarding standard of
                                                               At 2:27 a.m., another non-reassuring deceleration in the
care and causation.
                                                               heart rate occurred, and five minutes later, it occurred
                                                               again. Thus, at 2:35 a.m., Nurse Brown called Dr. Novoa
Reversed and remanded.                                         again. However, Dr. Novoa did not go to the hospital at
                                                               that time.

Attorneys and Law Firms                                        At 3:35 a.m., the fetal monitor showed another non-
                                                               reassuring fetal heart rate, and at 4:25 a.m., Nurse Brown
*400 Yvonne K. Puig, Fulbright & Jaworski L.L.P.,              noted minimal variability and a drop in the fetal heart
Austin, TX, for Appellants.                                    rate. At 4:31 a.m., the fetal heart rate had an abnormal
                                                               baseline with a significant deceleration. By this time, both
T.O. Gilstrap, Jr., El Paso, TX, for Appellee.                 Nurse Brown and Nurse Tammy Prophet were involved in
                                                               interpreting the fetal heart rate. At 4:34 a.m., Nurse
Before CHEW, C.J., McCLURE, and RIVERA, JJ.                    Brown      documented        moderate     variability   with
                                                               accelerations. However, at 4:51 a.m., there was a pattern
                                                               of marked variability. As such, Nurse Brown contacted
                                                               Dr. Novoa again at 5:03 a.m. Dr. Novoa ordered an
                                                               epideral but did not go to the hospital. De La Riva,

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Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



however, refused the epideral, despite having signed          After timely serving experts report from Kathryn Snider,
vaginal and c-section consent forms two hours earlier.        a labor and delivery nurse, Dr. Michael Kreitzer, a board
                                                              certified obstetrician and gynecologist, Brigitte Grissom,
When other decelerations occurred at 5:18 a.m., 5:22          a neonatal nurse, and Dr. Daniel Adler, a board certified
a.m., and 5:26 a.m., Nurse Brown, at 5:52 a.m., again         pediatric neurologist, Appellants objected to the reports
called Dr. Novoa. At this point, Dr. Novoa decided to go      and moved to dismiss the case. Specifically, they argued
to the hospital and arrived at Sierra Medical at 6:30 a.m.    that Dr. Adler was not qualified to opine on the standard
Approximately fifteen minutes later, Dr. Novoa ruptured       of care or breach as to Appellants, nor was Dr. Kreitzer
the fetal membrane to induce labor, even though the fetus     qualified to opine on the standard of care, breach, or
was in a floating position and such procedure could cause     causation as to Appellants. In addition, Appellants
umbilical cord complications and oxygen deprivation.          asserted that neither nurse was qualified to opine on
Despite noting the meconium stained amniotic fluid, Dr.       causation, and that even if all the experts were qualified,
Novoa agreed to allow De La Riva to continue to labor         their reports were inadequate as none addressed causation
naturally. However, at 7:02 a.m., Dr. Novoa noted that the    as to Appellants.
fetal heart rate was bradycardic, that is, it was slowing
down, and when resuscitative measures were                    In response, De La Riva claimed that Dr. Adler and Nurse
unsuccessful, he ordered an emergency c-section. Nurse        Snider were “highly qualified” and that their reports
Brown, Nurse Kayla Chavez, and Nurse Gloria Tomasino          adequately met the statutory expert report requirements.
accompanied Dr. Novoa and De La Riva to the operating         De La Riva also attached a seven-page summary of the
room.                                                         opinions of Nurse Snider and Dr. Adler, arguing that the
                                                              combination of those two reports were adequate. At that
The surgical scrub technicians, however, did not arrive in    time, De La Riva did not respond to Appellants’
the operating room until three minutes after De La Riva’s     arguments regarding the lack of qualifications of Dr.
arrival. The operating room did not appear to be prepared     Kreitzer, Nurse Grissom, or Nurse Snider. Subsequently,
as the nurses struggled to locate, open, and prepare          the trial court held a hearing on the motion to dismiss on
surgical trays and disposable blades. Thus, the c-section     May 19, 2010, and after further briefing on the matter, the
was delayed approximately seven minutes. But at 7:15          trial court denied the motion.
a.m., the c-section was performed, and Daniella was born.
Unfortunately, Daniella had no heart rate; thus, Nurse
Shaw began resuscitation as a certified registered nurse
anesthetist attempted intubation to establish an airway.
Soon, Neonatal Nurse Jose Balderrama arrived, and by                                DISCUSSION
7:24 a.m., Daniella’s heart was beating less than 100 beats
per minute. Believed to have suffered from hypoxic            Appellants raise two issues on appeal. The first contends
ischemic brain injury, Daniella now lives with                that the expert reports submitted were deficient, alleging
neurological disabilities.2                                   that Dr. Adler wholly failed to address causation as to
                                                              Daniella’s injuries and that neither Dr. Kreitzer, Nurse
De La Riva later filed a health care liability suit against   Grissom, nor Nurse Snider had the knowledge or
Appellants and Tenet Healthcare Corporation, Dr. Novoa,       experience to offer causation opinions on Daniella’s
First Choice OB/GYN Associates, Jose Balderrama,              injuries. And Appellants’ second issue asserts that even if
Timothy Aquilina, and Jasper Neuse, asserting various         we were to find that the expert reports sufficiently
allegations based on the care and treatment rendered to       addressed causation, they were nonetheless conclusory
her *402 daughter.3 As to Nurses Brown and Prophet, De        and speculative. De La Riva responds that the reports
La Riva claimed that they failed to appropriately monitor     constituted a good faith effort and that a fair reading of all
the fetus, recognize and document signs of distress,          the reports more than meets the statutory requirements.
communicate with Dr. Novoa, and implement the chain of        Finding merit in Issue One, we do not address the second.
command. Concerning Nurses Chavez and Tomasino, De
La Riva alleged that they failed to properly prepare,
equip, and staff the operating room. And as to Nurse
Shaw, De La Riva asserted that she failed to follow                               Standard of Review
neonatal resuscitation guidelines upon receiving the infant
at delivery. The allegations against Sierra Medical were      A trial court’s decision to deny a motion to dismiss under
based on vicarious liability for the conduct of its nursing   Section 74.351 is reviewed for an abuse of discretion. See
staff.                                                        American Transitional Care Ctrs. of Tex., Inc. v.
                                                              Palacios, 46 S.W.3d 873, 875 (Tex.2001); Tenet
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533                    conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79
(Tex.App.-El Paso 2009, pet. denied). An abuse of                S.W.3d 48, 52 (Tex.2002).
discretion only occurs when the trial court acted in an
unreasonable or arbitrary manner, without reference to           However, a plaintiff need not present evidence in the
any guiding rules or principles. Walker v. Gutierrez, 111        report as if it were actually litigating the merits. Palacios,
S.W.3d 56, 62 (Tex.2003); Boada, 304 S.W.3d at 533. A            46 S.W.3d at 879. The report can be informal, that is, the
trial court acts arbitrarily and unreasonably *403 if it         information contained in the report does not have to meet
could have reached only one decision, but instead reached        the same requirements as the evidence offered in a
a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807       summary judgment proceeding or at trial. Id.
(Tex.App.-Texarkana 2003, no pet.); Boada, 304 S.W.3d
at 533. To that end, a trial court abuses its discretion when
it fails to analyze or apply the law correctly. In re Sw. Bell
Tel. Co., 226 S.W.3d 400, 403 (Tex.2007), citing In re
Kuntz, 124 S.W.3d 179, 181 (Tex.2003); Boada, 304                                         Dr. Adler
S.W.3d at 533.                                                   [3] [4]
                                                                       Appellants first argue that Dr. Adler’s report was
                                                                 insufficient to establish causation as the report did not
                                                                 address how each named defendant’s conduct caused the
                                                                 injury. “An expert report must provide a fair summary of
                      Applicable Law                             the causal relationship between the failure of a health care
                                                                 provider to meet the standards of care and the injury,
[1]
    If a plaintiff timely files an expert report and the         harm, or damages claimed.” Estorque v. Schafer, 302
defendant moves to dismiss because of the report’s               S.W.3d 19, 27 (Tex.App.-Fort Worth 2009, no pet.); see
inadequacy, a trial court must grant the motion “only if it      also Wright, 79 S.W.3d at 53. It cannot be conclusory.
appears to the court, after hearing, that the report does not    Wright, 79 S.W.3d at 53; Estorque, 302 S.W.3d at 27.
represent an objective good faith effort to comply with the      Rather, it must explain the basis of the expert’s statements
definition of an expert report in Subsection (r)(6).” TEX.       regarding causation and link his conclusions to the facts.
CIV. PRAC. & REM.CODE ANN. § 74.351(l ) (West                    Wright, 79 S.W.3d at 53; Estorque, 302 S.W.3d at 27–28.
2011). The definition of an expert report requires that the      A causal relationship is established by proof that the
report contain a fair summary of the expert’s opinions as        negligent act or omission was a substantial factor in
of the date of the report regarding applicable standards of      bringing about the harm and that absent said act or
care, the manner in which the care rendered by the               omission, the harm would not have occurred. *404
physician or health care provider failed to meet the             Costello v. Christus Santa Rosa Health Care Corp., 141
standards, and the causal relationship between that failure      S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.).
and the injury, harm, or damages claimed. TEX. CIV.              Thus, merely providing some insight into the plaintiff’s
PRAC. & REM.CODE ANN. § 74.351(r)(6) (West 2011).                claims does not adequately address causation. Wright, 79
As the statute focuses on what the report discusses, the         S.W.3d at 53; Estorque, 302 S.W.3d at 28. Accordingly,
only information relevant to the inquiry is within the four      causation cannot be inferred; it must be clearly stated.
corners of the document. Palacios, 46 S.W.3d at 878.             Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El
                                                                 Paso 2008, no pet.). Indeed, we may not fill in gaps in a
[2]
   In setting out the expert’s opinions on each of the           report by drawing inferences or guessing what the expert
required elements, the report must provide enough                meant or intended. Austin Heart, P.A. v. Webb, 228
information to fulfill two purposes if it is to constitute a     S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).
good faith effort. Id. at 879. First, the report must inform
                                                                 [5]
the defendant of the specific conduct the plaintiff has              Moreover, when a plaintiff sues more than one
called into question. Id. And second, the report must            defendant, the expert report must set forth the standard of
provide a basis for the trial court to conclude that the         care applicable to each defendant and explain the causal
claims have merit. Id. Thus, if a report does not meet           relationship between each defendant’s individual acts and
these purposes and omits any of the statutory                    the injury. See TEX. CIV. PRAC. & REM.CODE ANN. §
requirements, it does not constitute a good faith effort. Id.    74.351(a), (r)(6) (a claimant must provide each defendant
Nor does a report that merely states the expert’s                with an expert report that sets forth the manner in which
conclusions about the standard of care, breach, and              the care rendered failed to meet the standards of care and
causation fulfill these purposes. Id. Rather, the expert         the causal relationship between that failure and the
must explain the basis of his statements to link his             injuries claimed); Doades v. Syed, 94 S.W.3d 664, 671–
                                                                 72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v.

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Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th               the operating room, Dr. Novoa, Nurse Shaw or
Dist.] 2001, no pet.). An expert report may not assert that        Balderrama, or someone else entirely. As the report fails
multiple defendants are all negligent for failing to meet          to state who caused the injuries, we find it deficient.4 See
the standard of care without providing an explanation of           Austin Heart, 228 S.W.3d at 282–83 (finding expert
how each defendant breached the standard of care and               report deficient that was “silent as to whether a single
how that breach caused or contributed to the cause of              physician, multiple physicians, or all physicians
injury. Taylor v. Christus Spohn Health Sys. Corp., 169            mentioned in the report failed to meet the standard of care
S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.).           and caused injury to [the patient]”); Taylor, 169 S.W.3d at
                                                                   245–46 (finding expert report deficient that failed “to
Here, Dr. Adler’s report notes that he reviewed the                state what each defendant should have done in order to
medical records, and then the report sets out the factual          meet the standard of care, what each defendant failed to
recitations of what occurred on the day of Daniella’s              do, and how such failure led to [the patient’s] death”).
birth. In this recitation, Dr. Adler makes no mention of
any of the nurses named as defendants, or what they were           Nevertheless, De La Riva asserts that when Dr. Alder’s
doing, what they did, how they participated in monitoring          report is read in conjunction with the reports provided by
De La Riva, or how they aided in Daniella’s delivery. The          the two nurses, causation is found. It is true that the expert
report does, however, mention Dr. Novoa, noting that               report requirement may be satisfied by utilizing more than
“Dr. Novoa arrived at the hospital at 6:30 a.m.,” and that         one expert report, and thus, we may read those reports
“[h]e ruptured the membranes.” The report next lists the           together to supply missing elements. See TEX. CIV.
“clinical     impression”      as    hypoxic     ischemic          PRAC. & REM.CODE ANN. § 74.351(i) (West 2011).
encephalopathy, motor and language delay, and mixed                However, only a physician may render opinions regarding
low tone-spastic quadriparesis. The report then concludes          causation. See TEX. CIV. PRAC. & REM.CODE ANN. §
with his “formulation,” which states as follows:                   74.351(r)(5)(C); see also Davis v. Webb, 246 S.W.3d 768,
                                                                   771 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
      Daniella De La Riva is a girl with significant and           Nurses cannot.5 See HealthSouth Corp. v. Searcy, 228
      substantial neurological disabilities. She was delivered     S.W.3d 907, 909 (Tex.App.-Dallas 2007, no pet.) (stating
      catastrophically ill at birth with a cardiac arrest. These   “it is clear [nurse] could not testify regarding causation”).
      neurological disabilities are the result of a hypoxic
      ischemic brain injury that occurred in the aftermath of a    Noting that law, De La Riva maintains that when the
      cardiac arrest, which was present immediately after          factual recitations supplied by the reports submitted by
      birth. No other cause is possible.                           Nurses Grissom and Snider are read in conjunction with
                                                                   Dr. Adler’s report, we can infer who caused Daniella’s
                                  ...                              injuries by failing to provide an “earlier delivery” or
                                                                   “prompt resuscitation.” However, Dr. Adler did not
      A delivery prior to the onset of the bradycardia noted       reference those reports in arriving at his conclusion.
      on fetal heart monitoring would have prevented all of        Moreover, as to the “earlier delivery” allegation, Dr.
      Daniella’s neurologically problems. An earlier delivery      Adler provided no time reference as to how much earlier
      and prompt resuscitation would have significantly            the delivery should have occurred and thus, whose
      mitigated if not wholly prevented Daniella’s                 conduct was implicated for not securing that earlier
      neurologically problems.                                     delivery. Should it have occurred seconds, minutes, or
[6]                                                                hours before? Should it have occurred when Nurse Brown
    This is deficient for causation. Looking to the four           first noted the non-reassuring heart rate, when Nurse
corners of the report, we note that it does not explain,           Prophet started monitoring the fetal heart rate, or when De
identify, or describe what conduct, act or omissions are           La Riva refused Dr. Novoa’s recommendation for the
attributable to any of the Appellants, that is, the report         earlier c-section and *406 wanted to continue to deliver
does not explain the causal relationship between each              Daniella naturally? And for those same reasons, whose
defendant’s individual acts and the injury caused to               conduct was implicated by failing to provide an earlier
Daniella. Rather, the report would have us infer which             delivery? Was it Nurse Brown for not securing a delivery
party was responsible for each cause. But as set out in the        upon first noticing the non-reassuring heart rate, was it
other expert reports, each of the ten named defendants             Nurse Prophet, once she started to interpret the fetal heart
*405 had numerous and varying responsibilities as to the           beats, or was it Dr. Novoa for acquiescing to De La
two patients involved. Based on the way Dr. Adler’s                Riva’s request to continue to labor naturally?
report is written, there is no way to discern whether he
believed that Daniella’s injuries were caused by the acts          Furthermore, the record reflects that at least two nurses
or omissions of the pre-delivery nurses, those nurses in           engaged in resuscitation, Nurses Shaw and Balderrama.

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Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



As such, we cannot determine to whom Dr. Adler was              [14th Dist.] 1999, no pet.). Therefore, a medical expert
referring with his “prompt resuscitation” allegation. Was       from one specialty may be qualified to testify if he has
it Nurse Shaw, Nurse Balderrama, or both? We, of course,        practical knowledge of what is customarily done by
are prohibited from supplying this missing information by       practitioners of a different specialty under circumstances
inference. See Wright, 79 S.W.3d at 52; Austin Heart, 228       similar to those at issue in the case. Keo v. Vu, 76 S.W.3d
S.W.3d at 279; Gray v. CHCA Bayshore L.P., 189 S.W.3d           725, 732 (Tex.App.-Houston [1st Dist.] 2002, pet.
855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.).          denied). Indeed, if the subject matter is common to and
Consequently, because we cannot determine whose                 equally recognized and developed in all fields of practice,
conduct was implicated by Dr. Adler’s causation opinion,        any physician familiar *407 with the subject may testify
we must conclude that the report is insufficient to             as to the standard of care. Id.; Blan, 7 S.W.3d at 745.
establish the same.                                             However, the proffered medical expert’s expertise must
                                                                be evident from the four corners of his report and
                                                                curriculum vitae. See generally Palacios, 46 S.W.3d at
                                                                878; Christus Health Southeast Texas v. Broussard, 267
                                                                S.W.3d 531, 536 (Tex.App.-Beaumont 2008, no pet.).
                   Dr. Kreitzer and the Nurses
                                                                [11]
                                                                    Here, nothing in the four corners of Dr. Kreitzer’s
Appellants also assert that none of the remaining reports       report indicates that he is qualified to opine on causation
filed by De La Riva supply the missing causation. As to         as to Daniella’s injuries. Although Dr. Kreitzer, being
Dr. Kreitzer, Appellants assert that he is unqualified to       board certified as an obstetrician and gynecologist, is
opine on the neurological injuries at issue, and as to the      qualified to render an opinion as to Dr. Novoa, he is not
nurses, Appellants note that by statute, they are prohibited    qualified to opine on the standard of care and causation as
from rendering any opinion on causation. We have                to infant hypoxia, neonatal resuscitation, and ischemic
already held above that nurses, by statute, cannot render       insult. Those matters appear to be within the realm of
opinions on causation; thus, we will not discuss that point     pediatric neurology. Certainly, if Dr. Kreitzer had some
of error further. Accordingly, we will move on to the           experience in practicing pediatric neurology, he would
complaint uttered against Dr. Kreitzer.                         qualify as an expert in this regard, but neither his report
[7]                                                             nor curriculum vitae demonstrate any recent experience in
   To qualify as an expert on causation, the medical expert     perinatology. Indeed, his last experience in perinatology
need not practice in the same specialty as the defendant.       was more than twenty years ago, and he last wrote in that
Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex.2003).          area over twenty-five years ago. Nor do the four corners
Rather, the expert simply must be a physician “who is           of the report or curriculum vitae demonstrate that Dr.
otherwise qualified to render opinions on such causal           Kreitzer consulted any pediatric neurologists or recently
relationship under the Texas Rules of Evidence.” See            read any medical articles or textbooks on pediatric
TEX. CIV. PRAC. & REM.CODE ANN. §                               neurology in arriving at his opinion. To qualify as an
74.351(r)(5)(C). Rule 702 of the Texas Rules of Evidence        expert, the statute requires that he be “actively practicing
states that “[i]f scientific, technical, or other specialized   medicine in rendering medical care services relevant to
knowledge will assist the trier of fact to understand the       the claim.” TEX. CIV. PRAC. & REM.CODE ANN. §
evidence or to determine a fact in issue, a witness             74.401(c)(2). Thus, experts that last practiced in the
qualified as an expert by knowledge, skill, experience,         relevant field over eleven years ago have been held to be
training, or education may testify thereto in the form of an    unqualified. See Larson v. Downing, 197 S.W.3d 303, 305
opinion or otherwise.” TEX.R. EVID. 702.                        (Tex.2006). At most, Dr. Kreitzer, referring almost
[8]   [9]   [10]                                                exclusively to Dr. Novoa’s conduct, was hired to opine on
           Nevertheless, not every licensed doctor is           his conduct, not that of Appellants. His report states, “I
automatically qualified to testify on every medical             have been hired by you to offer my expert opinions in this
question. Broders v. Heise, 924 S.W.2d 148, 152                 case regarding the care given by Dr. Julio Novoa,
(Tex.1996). Thus, the trial court’s inquiry should not          obstetrician/gynecologist.” Thus, we cannot conclude that
focus on the specialty of the medical expert. Roberts, 111      Dr. Kreitzer was qualified to render a causation opinion as
S.W.3d at 122. Instead, the trial court should determine        to Appellants’ conduct. Cf. Roberts, 111 S.W.3d at 122
whether the proffered expert has “knowledge, skill,             (pediatrician expert qualified when report demonstrated
experience, training, or education” regarding the specific      that he “studied the effects of pediatric neurological
issue before the court which would qualify the expert to        injuries,” had “extensive experience advising parents
give an opinion on that particular subject. Broders, 924        about the effects of those injuries” and relied on the
S.W.2d at 153–54 (applying Texas Rule of Evidence               interpretation of MRIs and CT scans by a pediatric
702); Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston          neurologist); Livingston v. Montgomery, 279 S.W.3d 868,

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Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



877 (Tex.App.-Dallas 2009, no pet.) (noting that                            (Tex.2008); see also Lewis v. Funderburk, 253 S.W.3d
obstetrician expert’s report reflected that he had                          204, 208 (Tex.2008) (stating that a *408 deficient report
“knowledge and expertise to recognize the perinatal                         may be cured by amending the report or by serving a new
progression of hypoxia due to inadequate oxygenation                        report from a separate expert that cures the deficiencies in
through a compromised uteroplacental unit”).                                the previously filed report). Moreover, the Supreme Court
                                                                            has noted that the trial court is in the best position to
                                                                            decide whether a cure is feasible. See Samlowski v.
                                                                            Wooten, 332 S.W.3d 404, 411–12 (Tex.2011). Thus,
                                                                            based on these decisions, we think it appropriate to
                          Summary                                           remand the case to the trial court for consideration of
                                                                            whether the deficiencies can be cured, and therefore,
Accordingly, having found that neither Dr. Kreitzer, nor                    whether to grant an extension of time.6 See Regent Health
the nurses, were qualified to render expert opinions on                     Care Center of El Paso, L.P. v. Wallace, 271 S.W.3d 434,
causation as to Daniella, and that Dr. Alder’s report was                   441 (Tex.App.-El Paso 2008).
insufficient to establish the same, we hold that the trial
court abused its discretion by overruling Appellants’
motion to dismiss. Issue One is sustained.

We must now determine what relief is appropriate. The                                              CONCLUSION
Supreme Court recently stated that when an appellate
court reverses a trial court’s denial of a motion to dismiss                Having sustained Appellants’ first issue, we reverse the
a health care liability claim due to omission of any of the                 trial court’s judgment and remand for proceedings
statutory expert report requirements, the appellate court                   consistent with this opinion.
may remand the case to the trial court to consider granting
a thirty-day extension to cure the deficiencies in the
report. Leland v. Brandal, 257 S.W.3d 204, 207–08

Footnotes
1      Section 74.351 provides that if a health care liability claimant does not serve an expert report within 120 days after his original
       petition is filed, the trial court must dismiss the claim with prejudice. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)-(b)
       (West 2011).
2      “Hypoxia” is the “presence of less than the normal amount of oxygen, as in the air, in the blood, in a tissue, in the lungs, etc.,”
       and “ischemia” is a “condition in which a part of the body suffers from a lack of blood, usually because of a contraction of the
       blood vessels.” See Schmidt, J.E., M.D., Attorneys’ Dictionary of Medicine Illustrated, Vol. 3, H–285, I–208–208.1 (Matthew
       Bender 2010).
3      The case against Timothy Aquilina and Jasper Neuse, both certified registered nurse anesthetists, was later nonsuited.

4      This case is certainly unlike IHS Acquisition No. 131, Inc. v. Crowson, 351 S.W.3d 368, 369–70, 373–74 (Tex.App.-El Paso
       2010, no pet.) (not yet reported), which involved one nurse wasting approximately ten minutes trying to determine whether the
       victim, who was gasping for breath, was a “DNR” patient before the staff began CPR. There, it was clear that the expert was
       calling into question that one nurse’s actions before the staff began resuscitative efforts. Id. at 373–74.
5      De La Riva points to several cases in her briefs to support her argument that causation may be supplied from other expert
       reports, but all of those cases concerned reports submitted by more than one physician. See Packard v. Guerra, 252 S.W.3d 511,
       514 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Perez v. Salinas, No. 13–08–00192–CV, 2008 WL 4981565, at *1
       (Tex.App.-Corpus Christi Nov. 25, 2008, pet. denied) (mem. op., not designated for publication); Comstock v. Clark, No. 09–
       07–300–CV, 2007 WL 3101992, at *1 (Tex.App.-Beaumont Oct. 25, 2007, pet. denied) (mem. op., not designated for
       publication); Hiner v. Gaspard, No. 09–07–240–CV, 2007 WL 2493471, at *1–2 (Tex.App.-Beaumont Sept. 6, 2007, pet.
       denied) (mem. op., not designated for publication). None of those cases involved whether a non-physician could supply the
       missing causation from a physician’s report. See id.
6      Appellants do not seem to assert on appeal that the reports served constituted no reports at all but merely assert that the reports
       are inadequate and insufficient. Thus, we do not address the “deficient versus no report at all” debate in our opinion here. See,
       e.g., Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 181 (Tex.App.-El Paso 2010, no pet.) (discussing the deficient versus no
       report debate and holding that expert report by a person unrelated to the health care field constituted no report under the health

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Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)



       care liability statute).




End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      7
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923


                                                                timely and treat her mother’s urinary tract infection,
                                                                leading eventually to her mother’s death.
                    2014 WL 1691362

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                      In May 2013, Flores served the Home with the report and
SIGNING OF OPINIONS.                                            curriculum vitae of James E. Moulsdale, M.D., F.A.C.S. 2
         MEMORANDUM OPINION                                     The Home timely objected to the report. After Flores
           Court of Appeals of Texas,                           responded, the trial court heard the Home’s objections in
                   Amarillo.                                    September 2013. The trial court found the report
                                                                deficient, and granted a 30–day extension to address the
     W.B.M. MANAGEMENT COMPANY d/b/a                            identified deficiencies.
         Vivians Nursing Home, Appellant
                        v.                                      The amended report was filed in late October 2013. The
             Mary FLORES, Appellee.                             Home again filed objections and moved to dismiss Flores’
                                                                claims pursuant to section 74.351(b) of the Civil Practice
       No. 07–14–00008–CV. | April 25, 2014.                    & Remedies Code. TEX. CIV. PRAC. & REM.CODE
                                                                ANN. § 74.351(b) (West 2013). The trial court heard
On Appeal from the 108th District Court, Potter County,         argument at a hearing in December 2013, overruled the
Texas, Trial Court No. 101179–E, Honorable Douglas              objections to the amended report and denied the Home’s
Woodburn, Presiding.                                            motion to dismiss. The Home has brought this
                                                                interlocutory appeal.
Attorneys and Law Firms

Arlene C. Matthews, W.C. Bratcher, for W.B.M.
Management Company.
                                                                                          Analysis
Lorren L. Lucero, for Mary Flores.
                                                                Through one issue, the Home challenges the sufficiency
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.                of Moulsdale’s amended expert report, contending the
                                                                report was “impermissibly speculative and conclusory” in
                                                                its attempt to describe the “causal relationship between
                                                                the alleged breach of the standard of care by [the Home]
                                                                and the death of Dionisia Dominguez Gomez.” The
              MEMORANDUM OPINION                                Home’s issue also contends the amended report
                                                                inadequately described the applicable standard of care and
JAMES T. CAMPBELL, Justice.                                     its alleged breach.

*1 This is an interlocutory appeal in a health care liability   We review a trial court’s decision on a motion to dismiss
suit.1 Appellant W.B.M. Management Company D/B/A                a health care liability claim for abuse of discretion. Am.
Vivians Nursing Home (“the Home”) appeals the trial             Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
court’s order overruling its objections to an expert’s          S.W.3d 873, 875 (Tex.2001); Gray v. CHCA Bayshore
report and denying its motion to dismiss the suit. We will      L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.]
reverse the trial court’s order and remand the cause to the     2006, no pet.). A trial court abuses its discretion if it acts
trial court for dismissal.                                      in an arbitrary or unreasonable manner without reference
                                                                to guiding rules or principles. Jelinek v. Casas, 328
                                                                S.W.3d 526, 539 (Tex.2010). When reviewing matters
                                                                committed to the trial court’s discretion, we may not
                                                                substitute our own judgment for that of the trial court.
                       Background                               Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52
                                                                (Tex.2002). A trial court does not abuse its discretion
Appellee Mary Flores filed suit against the Home after the      merely because it decides a discretionary matter
death of her mother Dionisia Dominguez Gomez, alleging          differently than an appellate court would in a similar
the Home was negligent in its care and treatment of her         circumstance. Harris Cnty. Hosp. Dist. v. Garrett, 232
mother. Flores’ amended pleadings alleged in particular         S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no
the Home’s employees negligently failed to diagnose             pet.). However, an incorrect construction of the law or a

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W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

misapplication of the law to undisputed facts is an abuse       In Moulsdale’s October 2013 report, he stated:
of discretion. Walker v. Packer, 827 S.W.2d 833, 840
(Tex.1992) (orig.proceeding) (“A trial court has no               I have been asked to review the care rendered to the
‘discretion’ in determining what the law is or applying the       above-captioned individual in January, 2011. She was,
law to the facts”); see Perry Homes v. Cull, 258 S.W.3d           at that time, a resident of Vivians Nursing Home.
580, 598 n. 102 (Tex.2008) (quoting Walker ).                     Historically, the patient had had a CVA in the remote
                                                                  past, leaving her extremely debilitated and unable to
*2 A health care liability claimant must timely provide           care for herself, necessitating nursing home placement.
each defendant health care provider with an expert report.        I reviewed the records from Vivian’s Nursing Home for
See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351;                     the period of August, 2010 through January, 2011. On
Gray, 189 S.W.3d at 858. The expert report must provide           January 10, 2011, the patient was found to have
a fair summary of the expert’s opinions as of the date of         increasing mental confusion and a probable urinary
the report regarding the applicable standards of care, the        tract infection. She was subsequently taken by
manner in which the care rendered by the health care              ambulance to Baptist St. Anthony Hospital in Amarillo,
provider failed to meet the standards, and the causal             Texas, where she was found to have a severe urinary
relationship between that failure and the injury, harm, or        tract infection and probable urosepsis. She was treated
damages claimed. TEX. CIV. PRAC. & REM.CODE                       aggressively and appeared to recover but was later sent
ANN. § 74.351(r)(6).                                              to hospice care and expired there.

If a defendant files a motion challenging the adequacy of         *3 The standard of care applicable to this type of
the claimant’s expert report, the trial court shall grant the     patient is careful monitoring, especially since she was
motion to dismiss only if it appears to the court, after a        unable to communicate any problems she might be
hearing, that the report does not represent an objective          experiencing. Careful monitoring would include taking
good faith effort to comply with the definition of an             her vital signs (i.e. blood pressure, pulse rate, body
expert report. TEX. CIV. PRAC. & REM.CODE ANN. §                  temperature, and respiratory rate) at a minimum of
74.351(l). Making that inquiry, the court considers only          once per day in order to detect any changes in her
the information contained within the four corners of the          condition. Especially in a debilitated patient, it is
report. Palacios, 46 S.W.3d at 878. Although the claimant         essential to monitor vital signs in order to detect
need not marshal all her proof in the report, the report          changes in the patient’s condition, such as urinary tract
must include the expert’s opinion on each of the elements         infection, since the patient is not able to alert the staff
identified in the statute. Palacios, 46 S.W.3d at 878–79;         on his/her own.
Gray, 189 S.W.3d at 859.
                                                                  In reviewing the nursing home records, I found notes
To constitute a good faith effort, in setting out the             stating that Ms. Gomez’s vital signs should be taken
expert’s opinions on the standard of care, the breach of          only once per week. The nursing home records further
the standard and the causative relationship between the           indicate that Ms. Gomez’s vital signs were, in fact, only
breach and the injury, harm or damages claimed, the               taken once per week. Had her vital signs been taken
report must provide enough information to fulfill two             more frequently, at a minimum of once per day, it is
purposes. Palacios, 46 S.W.3d at 879. First, the report           much more likely that this condition would have been
must inform the defendant of the specific conduct the             found earlier and might have been treated in the
claimant has called into question. Id. Second, the report         nursing home without the necessity of hospitalization.
must provide a basis for the trial court to conclude that the     More likely than not, the vital signs would have shown
claim has merit. Id. A report that merely states the              an increase in body temperature, an increased heart
expert’s conclusions does not fulfill these two purposes.         rate, an increased respiratory rate, a decrease in blood
Id. “Rather, the expert must explain the basis of his             pressure, or any combination of the above, indicating a
statements to link his conclusions to the facts.” Bowie, 79       change in the patient’s medical condition which
S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882,           required further investigation. Because of the fact that
890 (Tex.1999)). But a claimant need not present                  her urinary infection was not discovered in a timely
evidence in the report as if she were actually litigating the     fashion, she required hospitalization and treatment in
merits. Palacios, 46 S.W.3d at 879. Furthermore, the              an intensive care unit. Because this is a life threatening
report may be informal in that the information in the             illness, delay in diagnosis is a serious breach of the
report need not meet the same requirements as the                 standard of care.
evidence offered in a summary-judgment proceeding or              I believe that this claim does have merit because of the
trial. Id.                                                        delay in the diagnosis of the urinary tract infection. In
                                                                  my training and experience as a urologist, it is more

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W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

  likely than not that an undiagnosed urinary tract            faith effort toward compliance with the statutory
  infection might develop into urosepsis, especially in a      requirements.
  debilitated patient who is unable to communicate any
  symptoms or changes in their medical condition. I            Reiterated, an expert report that merely states the expert’s
  believe that this was the case in the care rendered to       conclusions does not provide enough information to fulfill
  Ms. Gomez. Furthermore, it is documented in the death        the purposes of the report. Bowie, 79 S.W.3d at 52 (citing
  certificate that the cause of death was sepsis secondary     Palacios, 46 S.W.3d at 879). The report must explain the
  to urinary tract infection.3                                 basis of the expert’s statements to link his conclusions to
                                                               the facts. Bowie, 79 S.W.3d at 52. Otherwise, the report
The Home’s objections asserted that the amended report         neither informs the defendant of the specific conduct the
failed to adequately address the standard of care              claimant calls into question nor provides a basis for the
applicable to the Home and how the standard of care was        trial court to conclude the claim has merit. Id.
allegedly breached by the Home or its employees. The
Home also asserted the amended report failed to address        A case Flores cites is helpful to demonstrate the
the causal relationship between the alleged breach and the     inadequacies of Moulsdale’s report. Mosely v. Mundine,
injury, harm or damages claimed by Flores, and asserted        249 S.W.3d 775 (Tex.App.-Dallas 2008, no pet.), dealt
the amended report contained only global and conclusory        with a claim a physician failed to detect an early stage of
statements concerning the causal connection.                   cancer. The physician moved to dismiss the claim,
                                                               asserting the expert report expressed only conclusory
Standard of care is defined by what an ordinarily prudent      statements as to the causative relationship between the
health care provider or physician would have done under        failure to detect and the harm to the patient. Id. at 780–81.
the same or similar circumstances. Palacios, 46 S.W.3d at      The expert report there, as relevant to causation, stated:
880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d
216, 222 (Tex.App.-Houston [1st Dist.] 2003, pet.                In the case of Mrs. Mundine, Dr. Mosley [sic] failed to
denied). Whether a defendant breached a duty to a patient        identify a 1cm nodule on the chest x-ray during the ER
cannot be determined absent specific information about           visit in 5/2004. Approximately 21 months later this
what the defendant should have done differently.                 nodule had developed into a 6cm mass extending into
Palacios, 46 S.W.3d at 880.                                      the lung tissue with undetermined metastasis. Mrs.
                                                                 Mundine has a poor prognosis given the extent of the
*4 According to Moulsdale’s report, the applicable               tumor growth and required lung resection,
standard of care for treatment of a debilitated patient like     chemotherapy [,] and radiation. Had this cancer been
Ms. Gomez required that the Home monitor her carefully,          detected in 2004[,] the likelihood of survival for Mrs.
taking her vital signs, defined as blood pressure, pulse         Mundine would have been significantly greater with a
rate, body temperature and respiratory rate, at least once       much less invasive treatment protocol. Dr. Mosley [sic]
per day to detect changes in her condition. Addressing the       breached the standard of care by failing to detect the
Home’s breach of the standard of care, Moulsdale’s report        early stage of the cancer in May 2004.
states that his review of the nursing home records reveals
notes that Ms. Gomez’s vital signs were to be taken only         *5 * * *
once per week and records further indicating that her vital
signs were indeed taken once per week.                           .... Dr. Mosely failed to identify the early cancer nodule
                                                                 in Mrs. Mundine in 2004. This failure resulted in
Moulsdale further explains that because the vital signs          delayed diagnosis of lung cancer, required invasive and
were not taken daily, Ms. Gomez’s urinary tract infection        aggressive treatment and in all medically probability
went undetected long enough to develop into sepsis, a            significant reduction in the life expectancy of Mrs.
life-threatening condition requiring hospitalization. He         Mundine.
states “[m]ore likely than not, the vital signs would have
                                                                 249 S.W.3d at 780.
shown an increase in body temperature, an increased heart
rate, an increased respiratory rate, a decrease in blood
                                                               The appeals court affirmed the trial court’s denial of the
pressure, or any combination of the above, indicating a
                                                               physician’s motion. It held the trial court could have
change in the patient’s medical condition which required
                                                               concluded the report “established a causal relationship”
further investigation.”
                                                               between the physician’s departure from the standard of
                                                               care and the patient’s injury. In so concluding, the court
Our discussion will focus on causation because we readily
                                                               found the expert’s report linked the physician’s failure to
conclude that in its discussion of that element,
                                                               identify the one-centimeter nodule in 2004 to the patient’s
Moulsdale’s amended report does not constitute a good

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    3
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

injury from the developed six-centimeter mass some 21          next four days, her condition deteriorated and she was
months later. Id. at 781.                                      transferred to another facility where she died a few days
                                                               later. The expert report addressed what it described as
The report in Mosely gave the trial court a factual basis to   breaches of the standard of care by a physician during her
understand the change in the patient’s condition between       four-day hospital stay. Reversing the trial court’s denial
the breach of the standard, occurring on a known occasion      of challenges to the expert report, the appellate court held
on which the patient had a one-centimeter nodule, and the      the report was conclusory as to causation. The court
later condition when the nodule had become a six-              summarized the expert report’s discussion of causation as
centimeter mass. 249 S.W.3d at 780. By contrast with that      follows:
report found adequate as to causation, Moulsdale’s report
contains the facts that on January 10, 2011, Ms. Gomez, a        [Expert’s] report explains that the standard of care
debilitated patient, “was found to have increasing mental        required [the physician] to examine and assess [the
confusion and a probable urinary tract infection,” and was       patient] on a daily basis, and that daily chest x-rays
subsequently taken by ambulance to the hospital, where           should have been performed. In addition, the report
she was diagnosed with a severe urinary tract infection          states that if [the physician] had examined [the
and probable urosepsis. The report speaks in conclusory          patient’s] lungs, then “more likely than not” she would
fashion of a “delay in diagnosis,” but contains no facts on      have found that [the patient’s] pneumonia and
which one may base a conclusion that there occurred a            congestive heart failure had worsened, and those
delay in diagnosing her infection or that any such delay         conditions “could have been effectively treated more
was attributable to a failure of the Home to check her vital     likely than not.” The report also concludes that if [the
signs daily. The report’s statement that “more likely than       physician] had performed “proper assessment and
not, the vital signs would have shown an increase in body        treatment” on January 26, 27, or 28, “then more likely
temperature, an increased heart rate, an increased               than not, [the patient] could have been successfully
respiratory rate, a decrease in blood pressure, or any           treated and would not have died when she did.”
combination of the above, indicating a change in the             [Expert] further concludes in the report that
patient’s medical condition which required further               [physician’s] negligence proximately caused [patient’s]
investigation”4 is not factual, but merely a more detailed       death, and if [physician] had not been negligent,
statement of Moulsdale’s opinion. The report contains no         [patient] “would not have died when she did.”
factual statement describing when, relative to January 10,
the Home’s employees last checked Ms. Gomez’s vital            259 S.W.3d at 312. The court found the expert’s
signs. Nor does it contain statements of what any of Ms.       statements conclusory because they were not linked to the
Gomez’s vital signs were at any point in time, before,         facts and did not explain how the physician’s alleged
during or after her diagnosis, or how any of her vital signs   negligence caused the patient’s death. Id. at 313 (citing,
had changed from any point in time to another.                 inter alia, Gonzales v. Graves, No. 07–03–00268–CV,
                                                               2004 Tex.App. LEXIS 2403, 2004 WL 510898
With regard to her hospital care, Moulsdale’s report adds      (Tex.App.-Amarillo Mar. 16, 2004, no pet.) (mem.op.)).
only the facts that Ms. Gomez was treated aggressively
and appeared to recover but later died under hospice care.     Moulsdale’s report contains even fewer facts than the
The report concludes with the statement that, according to     report in Craig. 259 S.W.3d at 312. That report at least
her death certificate, the cause of Ms. Gomez’s death was      described Mrs. Dearbonne’s condition on her admission
“sepsis secondary to urinary tract infection.” But the         to the hospital, giving the trial court some means to
report contains nothing to link that fact with his             understand the factual consequences of a failure to order
conclusion the Home’s failure to check her vital signs         daily x-rays. See Craig, 259 S.W.3d at 313–14 (Gaultney,
daily in the days before her hospitalization led to her        J., dissenting). As noted, Moulsdale’s report gives no
septic condition or her death some two weeks later. And        facts regarding Ms. Gomez’s vital signs on any day,
we cannot engage in inferences to supply information not       providing no basis for evaluation of the effects of a failure
present within the four corners of the report. See Bowie,      to check her vital signs daily. See also Foster v.
79 S.W.3d at 53.                                               Richardson, 303 S.W.3d 833, 842 (Tex.App.-Fort Worth
                                                               2009, no pet.) (holding expert report “does not explain
*6 Moulsdale’s report may also be compared with the            beyond mere conjecture” how condition of patient’s ankle
expert report considered in Craig v. Dearbonne, 259            worsened from June to July so that physician’s failure to
S.W.3d 308 (Tex.App.-Beaumont 2008, no pet.). Mrs.             give correct diagnosis in June caused the requirement of
Dearbonne was admitted to a hospital on January 25 with        further treatment in July).
admitting diagnoses that included “respiratory
distress/shortness of breath” and pneumonia. Over the

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W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

Moulsdale’s report expresses his opinion that the Home’s       without reference to guiding rules or principles and did
failure to take Ms. Gomez’s vital signs at least daily         not, therefore, misapply the law to the undisputed facts of
caused a failure to find and timely treat her urinary tract    this case, or otherwise abuse its discretion, I respectfully
infection. It further expresses his opinion that because the   dissent.
infection was left untreated, it developed into sepsis, a
life-threatening condition, ultimately leading to her death.   As the majority opinion correctly sets out, this is an
But the report does not explain the basis of Moulsdale’s       interlocutory appeal in a health care liability suit, wherein
statements to link his conclusions to the facts, Bowie, 79     Appellant, W.B.M. Management Company, d/b/a Vivians
S.W.3d at 52, with the result that it also does not provide    Nursing Home, seeks to overturn the decision of the trial
a basis for the trial court to conclude the claim has merit.   court to deny Appellant’s motion to dismiss the claims of
Id. Ultimately, it states only Moulsdale’s opinions on         Appellee, Mary Flores, pursuant to section 74.351(l).
causation. Accordingly, the report does not set forth a        TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l)
“good faith effort” to provide a fair summary of the           (West 2012). The majority concludes the trial court erred
causation element as described in the statute. When it         because the report of Dr. James E. Moulsdale does not
overruled the Home’s objections to the report’s causation      constitute an objective good faith effort to describe a
element discussion and denied its motion to dismiss, the       causal relationship between Appellant’s failure to follow
trial court misapplied the “good faith effort” standard.       an appropriate standard of medical care and Appellee’s
Our conclusion the report is inadequate in its discussion      claimed damages. Because the majority accurately sets
of causation makes it unnecessary for us to consider the       forth the law applicable to a case such as this, I will not
adequacy of its discussion of the standard of care and         restate the principles of law governing an appellate
breach.                                                        court’s analysis of the sufficiency of an expert report as
                                                               statutorily defined. Id. at § 74.351(r)(6).

                                                               Reduced to its essence, Appellee claims Appellant’s
                                                               employees failed to provide medical care within an
                       Conclusion                              applicable standard of care, and their failure to do so
                                                               resulted in the death of her mother, Dionisia Dominguez
*7 We sustain the Home’s sole issue. We reverse the trial      Gomez. In support of her claim, Appellee provided the
court’s order and remand the cause to the trial court for      expert report of Dr. James E. Moulsdale,1 which opines, in
the limited purposes of determining the Home’s                 part, as follows:
reasonably incurred attorney’s fees and costs and entry of
an order dismissing with prejudice Flores’ claims against
the Home. TEX. CIV. PRAC. & REM.CODE ANN. §                      In reviewing the nursing home records, I found notes
74.351(b).                                                       stating that Ms. Gomez’s vital signs should be taken
                                                                 only once per week. The nursing home records further
                                                                 indicate that Ms. Gomez’s vital signs were, in fact, only
                                                                 taken once per week. Had her vital signs been taken
PIRTLE, J., dissenting.                                          more frequently, at a minimum of once per day, it is
                                                                 much more likely that this condition would have been
                                                                 found earlier and might have been treated in the
                                                                 nursing home without the necessity of hospitalization.
                                                                 More likely than not, the vital signs would have shown
                DISSENTING OPINION                               an increase in body temperature, an increased heart
                                                                 rate, an increased respiratory rate, a decrease in blood
PATRICK A. PIRTLE, Justice.                                      pressure, or any combination of the above, indicating a
*7 Respectfully disagreeing with my colleagues                   change in the patient’s medical condition which
concerning the application of the law to the undisputed          required further investigation. Because of the fact that
facts of this case, I dissent. By its opinion, the majority      her urinary infection was not discovered in a timely
finds the trial court misapplied the law concerning the          fashion, she required hospitalization and treatment in
application of the “objective good faith” standard to the        an intensive care unit. Because this is a life threatening
evaluation of an expert report under section 74.351(l) of        illness, delay in diagnosis is a serious breach of the
the Texas Civil Practices and Remedies Code, resulting in        standard of care.
a finding of abuse of discretion and the concomitant
judgment to reverse and remand. Because I find the trial            *8 I believe that this claim does have merit because
court did not act in an arbitrary or unreasonable manner            of the delay in the diagnosis of the urinary tract

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923

      infection. In my training and experience as a             between the failure to closely monitor any change in her
      urologist, it is more likely than not that an             condition and harm suffered as a result of her declining
      undiagnosed urinary tract infection might develop         medical health.
      into urosepsis, especially in a debilitated patient who
      is unable to communicate any symptoms or changes          *9 Drawing insight from Mosely v. Mundine, 249 S.W.3d
      in their medical condition. I believe that this was the   775 (Tex.App.-Dallas 2008, no pet.), the majority opines
      case in the care rendered to Ms. Gomez.                   that the expert report in that case was found to be
      Furthermore, it is documented in the death certificate    sufficient because it gave the trial court a “factual basis to
      that the cause of death was sepsis secondary to           understand the change in the patient’s condition”—in that
      urinary tract infection.                                  case a change from a 1 cm nodule to a 6 cm mass over a
In the context of a claim based on a failure to timely          21 month period. Here, Dr. Moulsdale’s report is really no
diagnose Ms. Gomez’s medical condition, the report (1)          different in that it places the emphasis on the differential
provides a summary of the expert’s opinions regarding           diagnosis of Ms. Gomez’s condition from day to day (as
applicable standards of care, (2) relates the manner in         opposed to from week to week). The majority criticizes
which the care rendered failed to meet those standards,         Dr. Moulsdale’s report for failing to contain a statement
and (3) opines as to the causal connection between that         concerning Ms. Gomez’s vital signs at any specific point
failure and the injury, harm, or damages claimed. As            in time. In reaching this conclusion the majority
such, the report meets the statutory purpose of an expert       completely overlooks the fact that it doesn’t matter what
report because it (1) informs Appellant of the specific         her vital signs were at any particular moment because the
conduct Appellee has called into question and (2)               medical significance is the change, not the difference. Dr.
provides a basis for the trial court to conclude the claim      Moulsdale’s report indicates that it was the daily change
has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.     that would have, in all probability, alerted the Appellants
Palacios, 46 S.W.3d 873, 879 (Tex.2001).                        to the imminent need for more aggressive treatment of her
                                                                failing condition.
Appellant contends, and the majority agrees, the expert
report was “impermissibly speculative and conclusory” in        In another misinterpretation of Appellee’s cause of action
its attempt to describe, within the four corners of the         and the purpose of an expert report, the majority opines
report, the “causal relationship between the alleged breach     that the “report contains nothing to link [Dr. Moulsdale’s
... and the death of [Ms. Gomez].” The majority then            opinion that Ms. Gomez’s death was ‘sepsis secondary to
analyzes relevant case law to reach the conclusion that         urinary tract infection’] with his conclusion the
this particular report does not “link” Dr. Moulsdale’s          [Appellant’s] failure to check her vital signs daily in the
conclusions to the facts of this case.                          days before her hospitalization led to her septic condition
                                                                or her death some two weeks later.” (Emphasis in the
So, just what are the “facts” of this case? From the four       original.) Appellee does not contend that the failure to
corners of the report, we know that Ms. Gomez was               timely diagnose led to Ms. Gomez’s septic condition.
“extremely debilitated,” that she was “unable to care for       Rather, Appellee contends her worsening septic condition
herself,” that Appellant was aware of the fact that she had     (which would have been reflected in her daily vital signs
a “probable urinary tract infection,” and that in light of      and could have been treated earlier but for the delay in
that knowledge, Appellant chose to take her vital signs         diagnosing Ms. Gomez’s infection) led to injury, harm, or
only once per week. We also know the standard of care           other damages because it was not timely diagnosed and
applicable to this type of patient called for “careful          treated. Simply put, Dr. Moulsdale’s report establishes
monitoring,” which would specifically include taking her        that Ms. Gomez was harmed by Appellant’s breach of the
vital signs “a minimum of once per day,” and that the           appropriate standard of care.
purpose of that frequency of monitoring was “to detect
any changes in her condition.” We also know this                Contrary to the conclusion reached by the majority, I find
monitoring was “especially” called for in a debilitated         the facts of this case clearly provide a basis upon which
patient, like Ms. Gomez, because the patient was not            the trial judge could reasonably have concluded that there
otherwise able to alert the staff on her own. Finally, we       was merit to the Appellee’s claim. Accordingly, I would
know that within reasonable medical probability, “had her       affirm the decision of the trial court.
vital signs been taken more frequently ... it was much
more likely that [her] condition would have been found
earlier” and she might not have required hospitalization.
The fact that more careful monitoring would have alerted        Parallel Citations
the medical care providers to provide earlier, more
aggressive treatment, establishes a causal relationship         Med & Med GD (CCH) P 304,923

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      6
W.B.M. Management Co. v. Flores, Not Reported in S.W.3d (2014)
Med & Med GD (CCH) P 304,923



Footnotes
1     See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2012).

2     Dr. Moulsdale is a board-certified urologist who has practiced in the field for over 34 years. He holds accreditation in a number
      of urological fields, and has published several articles. The Home does not challenge Moulsdale’s qualifications on appeal.
3     The date of Ms. Gomez’s death is not stated in Moulsdale’s report, but Flores’ brief states she died on January 24, 2011.

4     The statement is one of those added by the amended report.

1     Dr. Moulsdale is a board-certified urologist who has practiced in the field of urology for over 34 years. Dr. Moulsdale’s
      qualifications as an expert in this field are not challenged.




End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    7
Walker v. Packer, 827 S.W.2d 833 (1992)




                                                               PHILLIPS, Chief Justice.
                    827 S.W.2d 833                             This original mandamus action involves two pre-trial
                Supreme Court of Texas.
                                                               discovery requests sought by *836 relators, plaintiffs in a
 Charles F. WALKER and Mary Jeanette Walker et                 medical malpractice lawsuit. The first discovery dispute
                 al., Relators,                                involves documents which the plaintiffs seek from one of
                       v.                                      the defendants, while the second involves documents
      The Honorable Anne PACKER, Judge,                        which they seek from a nonparty for impeachment
                 Respondent.                                   purposes. As to the first matter, we hold that relators have
                                                               not presented a sufficient record to demonstrate that the
No. C–9403. | Feb. 19, 1992. | Rehearing Overruled             trial court clearly abused its discretion in failing to grant
   May 6, 1992. | Dissenting Opinion by Justice                them all requested relief. As to the second, we hold that
             Gammage May 7, 1992.                              relators have an adequate remedy by appeal. Thus,
                                                               mandamus is inappropriate, and we deny the writ.
Parents of child born with brain damage, who had brought
action against obstetrician, hospital where child was born,
and nurse attending at delivery, brought petition for writ
of mandamus arguing that the trial court abused its
discretion by refusing to order hospital to produce                         The St. Paul and Aetna Records
documents from its insurer’s files and by ordering that
                                                               Catherine Johanna Walker sustained brain damage at birth
portions of other responsive documents be stricken. The
                                                               in January 1983. In January 1985, her parents, Charles F.
Supreme Court, Phillips, C.J., held that: (1) plaintiffs had
                                                               and Mary Jeanette Walker, sued Dr. Paul Crider, the
not presented sufficient record to demonstrate that trial
                                                               obstetrician, St. Paul Hospital, where Catherine was born,
court clearly abused its discretion in failing to grant
                                                               and Iris Jean White, a nurse attending at the delivery.
plaintiffs requested discovery from one of defendants, and
(2) plaintiffs had adequate remedy by way of appeal as to
                                                               In August 1987, the Walkers served on St. Paul their third
documents they sought from nonparty for impeachment
                                                               request for production of documents pursuant to
purposes.
                                                               Tex.R.Civ.P. 167. One request asked for:
Petition denied.
                                                                            Any and all writings, notes,
Gonzalez, J., concurred with opinion.                                       documents, letters, etc., concerning,
                                                                            mentioning, alluding to, or making
Doggett, J., dissented with opinion in which Mauzy, J.,                     reference to (either directly or
joined.                                                                     indirectly), the tape recorded
                                                                            statement given by Nurse White to
Gammage, J., dissented with opinion.                                        an Aetna adjuster, including but not
                                                                            limited to any notes or entries in
                                                                            any Aetna adjuster’s file, any
Attorneys and Law Firms                                                     attorney’s file, or any file or
                                                                            writing in possession of any
*835 Les Weisbrod and Michael S. Box, Dallas, for                           employee, representative or agent
relators.                                                                   of St. Paul Hospital. This request is
                                                                            in reference to the tape recorded
Philipa Remington, Stephen W. Johnson, James A.                             statement which you have been
Williams, Kevin J. Keith, Martha L. Strother, Gary W.                       unable to locate, but which was
Sibley, Dallas and Delmar L. Cain, Austin, for                              previously requested....
respondent.
                                                               St. Paul responded as follows:

                                                                            In an effort to respond to this
                                                                            request, this Defendant again
                                                                            checked with all appropriate
                        OPINION                                             personnel and files at St. Paul

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Walker v. Packer, 827 S.W.2d 833 (1992)



            Hospital and the law firm of Bailey                supplied after irrelevant portions of such documents are
            and Williams. No such statement or                 stricken.”
            taped recording was found. For the
            third time the Aetna Casualty and                  After unsuccessfully seeking relief in the court of appeals,
            Surety Company was asked to                        the Walkers moved for leave to file a petition for writ of
            check its records and files and a                  mandamus with this court, arguing that the trial court
            partially transcribed statement was                clearly abused its discretion by refusing to order St. Paul
            located, a copy of which is                        to produce the documents from Aetna’s files and by
            attached. No taped recording was                   ordering that portions of the other responsive documents
            located.                                           be stricken. The Walkers contend that the order was a
                                                               clear abuse of discretion because St. Paul 1) never
Nearly two years later, the Walkers filed a motion to          objected to the Walkers’ request for production, 2) had a
compel under Tex.R.Civ.P. 215, asserting that St. Paul         superior right to the Walkers to compel production of the
failed to respond completely to the request.1 The Walkers      documents in Aetna’s possession, and 3) never asked that
complained that “St. Paul Hospital did not even respond        any parts of the documents be excised.
to what was requested in the request for production—that
is, writings, notes, and notations in the adjuster’s file or   The record before us does not include the statement of
attorney’s file mentioning, alluding to, or making             facts from the evidentiary hearing on the Walkers’ motion
reference to the tape recorded statement of Nurse White.”      to compel production. Without it, we cannot determine on
At about the same time, the Walkers also served on Aetna       what basis the trial judge and the special master reached
Casualty and Surety Company, St. Paul’s insurer, an            their conclusions. Since we cannot assess whether or not
“Amended Notice of Intention to Take Deposition Upon           the trial court’s order was correct, we obviously cannot
Written Questions—Duces Tecum,” seeking, among other           take the additional step of determining that the court’s
things, the same documents. Aetna moved to quash the           order, if incorrect, constituted a clear abuse of discretion.
notice.                                                        [1] [2] [3]
                                                                       As the parties seeking relief, the Walkers had the
The trial judge appointed a special master to review the       burden of providing this Court with a sufficient record to
Walkers’ motion to compel and Aetna’s motion to quash.         establish their right to mandamus relief. Since an
After an evidentiary hearing on September 5, 1989, the         evidentiary hearing was held, the Walkers had the burden
master prepared findings, which formed the basis for two       of providing us not only a petition and affidavit, see
extensive orders signed by the trial court on September        Tex.R.App.P. 121(a)(2)(C) and (F), but also a statement
20, 1989. In the first order, the court found that the         of facts from the hearing. See, e.g., Cameron County v.
Walkers were “entitled to all documentation sought in          Hinojosa, 760 S.W.2d 742, 744 (Tex.App.—Corpus
[the request] from the files of Defendant St. Paul or its      Christi 1988, orig. proceeding); Greenstein, Logan & Co.
attorney of record, but not from the files of Aetna            v. Burgess Mktg. Inc., 744 S.W.2d 170, 177 (Tex.App.—
Insurance Company, except as they may appear in the            Waco 1987, writ denied); see also Western Casualty &
files of St. Paul or the attorneys of record of St. Paul.”     Surety Co. v. Spears, 730 S.W.2d 821, 822 (Tex.App.—
The court also stated that it “has been advised that St.       San Antonio 1987, orig. proceeding).3 Having failed to
Paul has supplied all documentation that is responsive to      meet this burden, the Walkers have not provided us with a
[the request], but that additional documentation will be       record upon which they can establish their right to
made available *837 to the Court for in camera review.”        mandamus relief against St. Paul.
The court therefore sustained the Walkers’ motion to
compel “to the extent that on Friday, September 8, 1989
the Special Master will review in the Chambers of the
134th District Court the relevant portions of the St. Paul
                                                                             The Obstetrics Faculty Records
files and their attorney [sic] files, which may be in
response to Plaintiff’s request....” The court, however, did   [4]
                                                                  The second discovery dispute arises out of the Walkers’
not order St. Paul to produce documents from Aetna’s           attempt to secure documentary evidence to impeach one
files for in camera inspection.2                               of the defendants’ expert witnesses, Dr. Larry Gilstrap, a
                                                               faculty member in obstetrics at the University of Texas
After the master’s September 8 in camera inspection, the       Health Science Center at Dallas (“the Center”). Gilstrap
court ordered discovery of three additional documents          testified at his deposition that expert witness fees earned
from the files of St. Paul and its attorneys, which it found   by obstetrics faculty members are deposited into a “fund”
“relate to the matters sought in discovery and should be       in the obstetrics “billing department”; that obstetrics

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Walker v. Packer, 827 S.W.2d 833 (1992)



faculty members get paid “indirectly” from this fund; that      the witness, however, had not yet been put in doubt.
the fund is handled by Judy Wagers, a Center employee;          Under these circumstances, we held that the documents
and that he was unaware of any obstetrics department            were not discoverable, and we directed the trial court to
policy restricting faculty members from testifying for          vacate its order allowing the requested discovery. 452
plaintiffs in medical malpractice cases.                        S.W.2d at 435. We reasoned that “[t]here is ... a limit
                                                                beyond which pre-trial discovery should not be allowed.”
*838 Thereafter, the Walkers noticed Wagers’ deposition,        Id. at 437.
requesting that she provide all documents regarding (1)
the operation of the above-mentioned “fund” from 1985           The present case is distinguishable. Here, the Walkers
to 1988; and (2) limitations placed upon obstetrics faculty     presented to the trial court evidence of a specific
members relating to their testimony in medical                  circumstance—the Center’s policy restricting the
malpractice cases. The Center, on behalf of Wagers,             faculty’s freedom to testify for plaintiffs—raising the
moved to quash the notice, arguing that the request for         possibility that Dr. Gilstrap is biased. Thus, the Walkers
documents was “vague and overly broad” and that                 are not engaged in global discovery of the type
production would be “costly and burdensome.”                    disapproved in Russell; rather, they narrowly seek
                                                                information regarding the potential bias suggested by the
Two months later, in an unrelated lawsuit, the Walkers’         witness’ own deposition testimony and that of his
counsel deposed Dr. Alvin L. Brekken, another obstetrics        professional colleague.
faculty member at the Center. Dr. Brekken testified that
the obstetrics department’s official policy, distributed in     Our rules of civil procedure, and the federal rules upon
writing to all faculty members, requires a doctor to obtain     which they are based, mandate a flexible approach to
authorization from other faculty members before                 discovery. A party may seek any information which
testifying for any plaintiff in a medical malpractice case.     “appears reasonably calculated to lead to the *839
Based on this testimony, the Walkers sought a court order       discovery of admissible evidence.” Tex.R.Civ.P.
to depose Wagers and obtain the requested documents.            166b(2)(a). Evidence of bias of a witness is relevant and
                                                                admissible. See Tex.R.Civ.Evid. 613(b).5
After reviewing the Gilstrap and Brekken depositions and
pleadings of counsel, the trial court ordered the Center to     The trial court erred in failing to apply the foregoing rules
produce the documents for in camera review by the               to determine whether the documents were discoverable.
special master. Subsequently, in her September 20, 1989         Instead, the trial court simply read Russell as an absolute
order, the trial judge denied the discovery, stating in part:   bar to discovery, even though the circumstances here are
                                                                quite distinguishable. In so doing, the trial court
             [S]uch requested discovery is                      misapplied the Russell holding. We expressly disapprove
             improper pursuant to the Rulings of                such a mechanical approach to discovery rulings.6
             the Supreme Court of Texas in
             Russell v. Young [452 S.W.2d 434                   Having concluded that the trial court erred in denying the
             (Tex.1970) ], as the potential                     discovery based solely on Russell, we now must
             witness is not a party to the suit and             determine whether the appropriate remedy lies by writ of
             the records do not relate to the                   mandamus. “Mandamus issues only to correct a clear
             subject matter of the suit, but are                abuse of discretion or the violation of a duty imposed by
             sought solely for the purpose of                   law when there is no other adequate remedy by law.”
             impeachment, according to the                      Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
             Plaintiffs’ pleadings.                             (Tex.1985).7 We therefore examine whether the trial
                                                                court’s error in the present case constituted a clear abuse
Although noting that some of the documents “would be            of discretion and, if so, whether there is an adequate
relevant to this cause of action,” the court nevertheless       remedy by appeal.
denied discovery because “all such documents are
controlled by the Russell decision.”

In Russell, a party sought wholesale discovery of financial     1. Clear Abuse of Discretion
records of a potential medical expert witness who was not       Traditionally, the writ of mandamus issued only to
a party to the lawsuit.4 The documents requested did not        compel the performance of a ministerial act or duty. See
relate directly to the subject matter of the suit, but were     Wortham v. Walker, 133 Tex. 255, 277, 128 S.W.2d 1138,
sought solely in an attempt to impeach the potential            1150 (1939); Arberry v. Beavers, 6 Tex. 457 (1851);
witness by showing bias or prejudice. The credibility of        Helen A. Cassidy, The Instant Freeze–Dried Guide to

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Walker v. Packer, 827 S.W.2d 833 (1992)



Mandamus Procedure in Texas Courts, 31 S.Tex.L.Rev.             (trial court abused discretion by failing to apply proper
509, 510 (1990); Comment, The Expanding Use of                  legal standard to motion to disqualify counsel); Eanes ISD
Mandamus to Review Texas District Court Discovery               v. Logue, 712 S.W.2d 741, 742 (Tex.1986) (trial court
Orders: An Immediate Appeal Is Available, 32 Sw.L.J.            abused discretion by erroneously finding constitutional
1283, 1288 (1979).                                              violation).
                                                                [7] [8]
Since the 1950’s, however, this Court has used the writ to            In determining whether the trial court abused its
correct a “clear abuse of discretion” committed by the          discretion in the present case, we treat the trial court’s
trial court. See, e.g., Joachim v. Chambers, 815 S.W.2d         erroneous denial of the requested discovery on the sole
234, 237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d              basis of Russell as a legal conclusion to be reviewed with
569, 574 (Tex.1984); West v. Solito, 563 S.W.2d 240, 244        limited deference to the trial court. This is consistent with
(Tex.1978); Womack v. Berry, 156 Tex. 44, 50, 291               our approach in previous mandamus proceedings arising
S.W.2d 677, 682 (1956). See generally, David W.                 out of the trial court’s interpretation of legal rules. Cf.
Holman & Byron C. Keeling, Entering the Thicket?                Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555
Mandamus Review of Texas District Court Witness                 (Tex.1990); Barnes v. Whittigton, 751 S.W.2d 493, 495–
Disclosure Orders, 23 St. Mary’s L.J. 365, 390 (1991);          96 (Tex.1988); Terry v. Lawrence, 700 S.W.2d 912, 913–
Cassidy, 31 S.Tex.L.Rev. at 510; Note, The Use of               14 (Tex.1985). Under this analysis, the trial court’s
Mandamus to Review Discovery Orders in Texas: An                erroneous interpretation of the law constitutes a clear
Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981);          abuse of discretion.
Comment, 32 Sw.L.J. at 1290.

A trial court clearly abuses its discretion if “it reaches a
decision so arbitrary and unreasonable as to amount to a        2. Adequate Remedy by Appeal
clear and prejudicial error of law.” Johnson v. Fourth          In order to determine whether the writ should issue,
Court of Appeals, 700 S.W.2d at 917. This standard,             however, we must further decide whether the Walkers
however, has different applications in different                have an adequate remedy by appeal.
circumstances.
                                                                [9]
                                                                    Mandamus will not issue where there is “a clear and
[5]
   With respect to resolution of factual issues or matters      adequate remedy at law, such as a normal appeal.” State
committed to the trial court’s discretion, for example, the     v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus
reviewing court may not substitute its judgment for that of     is intended to be an extraordinary remedy, available only
the trial court. See Flores v. Fourth Court of Appeals, 777     in limited circumstances. The writ will issue “only in
S.W.2d 38, 41–42 (Tex.1989) (holding that determination         situations involving manifest and urgent necessity and not
*840 of discoverability under Tex.R.Civ.P. 166b(3)(d)           for grievances that may be addressed by other remedies.”
was within discretion of trial court); Johnson, 700 S.W.2d      Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684
at 918 (holding that trial court was within discretion in       (Tex.1989) (quoting James Sales, Original Jurisdiction of
granting a new trial “in the interest of justice and            the Supreme Court and the Courts of Civil Appeals of
fairness”). The relator must establish that the trial court     Texas in Appellate Procedure in Texas, § 1.4[1] [b] at 47
could reasonably have reached only one decision. Id. at         (2d ed. 1979)). The requirement that persons seeking
917. Even if the reviewing court would have decided the         mandamus relief establish the lack of an adequate
issue differently, it cannot disturb the trial court’s          appellate remedy is a “fundamental tenet” of mandamus
decision unless it is shown to be arbitrary and                 practice. Holloway, 767 S.W.2d at 684.
unreasonable. Johnson, 700 S.W.2d at 918.
                                                                [10]
                                                                    Our requirement that mandamus will not issue where
[6]
    On the other hand, review of a trial court’s                there is an adequate remedy by appeal is well-settled.8 On
determination of the legal principles controlling its ruling    a few occasions, however, we have not focused *841 on
is much less deferential. A trial court has no “discretion”     this requirement when applying mandamus review of
in determining what the law is or applying the law to the       discovery orders. For example, in Barker v. Dunham, 551
facts. Thus, a clear failure by the trial court to analyze or   S.W.2d 41 (Tex.1977), the trial court refused to compel
apply the law correctly will constitute an abuse of             defendant’s representative to answer certain deposition
discretion, and may result in appellate reversal by             questions, and the plaintiff applied to this Court for a writ
extraordinary writ. See Joachim v. Chambers, 815 S.W.2d         of mandamus. We concluded that the trial court had
234, 240 (Tex.1991) (trial court abused discretion by           abused its discretion, and ordered that the writ
misinterpreting Code of Judicial Conduct); NCNB Texas           conditionally issue. We never discussed the well-settled
National Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989)          requirement of inadequate remedy by appeal.

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Walker v. Packer, 827 S.W.2d 833 (1992)



                                                              mandamus proceedings involving other types of pre-trial
A few months later, in Allen v. Humphreys, 559 S.W.2d         orders, even those involving discovery. See, e.g.,
798 (Tex.1977), the Court again conditionally issued a        TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
writ of mandamus to correct a discovery abuse without         913, 919 (Tex.1991); Hooks v. Fourth Court of Appeals,
considering whether the relator had an adequate remedy        808 S.W.2d 56, 59–60 (Tex.1991); Bell Helicopter
by appeal. The real party in interest in Allen raised this    Textron, Inc., v. Walker, 787 S.W.2d 954, 955
argument, but the Court avoided the issue by citing           (Tex.1990); Stringer v. Eleventh Court of Appeals, 720
Barker. Id. at 801.                                           S.W.2d 801, 801–02 (Tex.1986). In Hooks, for example,
                                                              we reaffirmed that the “cost or delay of having to go
Commentators quickly criticized the Barker and Allen          through trial and the appellate process does not make the
opinions. See James Sales, Pre–Trial Discovery in Texas,      remedy at law inadequate.” 808 S.W.2d at 60.
31 Sw.L.J. 1017, 1033 (1977); Comment, The Expanding
                                                              [11]
Use of Mandamus to Review Texas District Court                     The requirement that mandamus issue only where
Discovery Orders: An Immediate Appeal Is Available, 32        there is no adequate remedy by appeal is sound, and we
Sw.L.J. 1283, 1300 (1979) (In most cases “forcing a party     reaffirm it today. No mandamus case has ever expressly
to await the completion of the trial in order to seek         rejected this requirement, or offered any explanation as to
appellate review will not endanger his substantial            why mandamus review of discovery orders should be
rights....”); Note, Mandamus May Issue To Compel A            exempt from this “fundamental tenet” of mandamus
District Judge to Order Discovery, 9 Tex.Tech L.Rev.          practice. Without this limitation, appellate courts would
782 (1978) (mandamus should not be a substitute for           “embroil themselves unnecessarily in incidental pre-trial
appeal).                                                      rulings of the trial courts” and mandamus “would soon
                                                              cease to be an extraordinary writ.” Braden v. Downey,
In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the          811 S.W.2d 922, 928 (Tex.1991). We thus hold that a
Court again used the extraordinary writ of mandamus to        party seeking review of a discovery order by mandamus
compel discovery which had been denied by the trial           must demonstrate that the remedy offered by an ordinary
court. Unlike in Barker and Allen, however, the Court in      appeal is inadequate. We disapprove of Barker, Allen, and
Jampole addressed whether relator had an adequate             any other authorities to the extent they might be read as
appellate remedy. The underlying suit in Jampole was a        abolishing or relaxing this rule.
products liability action, and the disputed discovery
                                                              [12]
materials included alternate design and assembly                   We further hold that an appellate remedy is not
documents. The Court held that relator did not have an        inadequate merely because it may involve more expense
adequate remedy by appeal because denial of this              or delay than obtaining an extraordinary writ. As we
discovery effectively prevented relator from proving the      observed in Iley v. Hughes, the “delay in getting questions
material allegations of his lawsuit. 673 S.W.2d at 576.       decided through the appellate process ... will not justify
Remedy by appeal in a discovery mandamus is not               intervention by appellate courts through the extraordinary
adequate where a party is required “to try his lawsuit,       writ of mandamus. Interference is justified only when
debilitated by the denial of proper discovery, only to have   parties stand to lose their substantial rights.” 158 Tex. at
that lawsuit rendered a certain nullity on appeal....” Id.    368, 311 S.W.2d at 652.

Although the Court in Jampole recognized the need to          On some occasions, this Court has used, or at least
address whether relator had an adequate remedy by             mentioned, the more lenient standard first articulated in
appeal, it expressly refused to overrule Barker and Allen.    Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068
Id. Perhaps because of this, we have on several occasions     (Tex.1926), that the remedy by appeal must be “equally
since Jampole used mandamus to correct discovery errors       convenient, beneficial, and effective as mandamus.” See,
without considering whether the relator had an adequate       e.g., Jampole v. Touchy, 673 S.W.2d 569, 576
appellate remedy. See Loftin v. Martin, 776 S.W.2d 145        (Tex.1984); Crane v. Tunks, 160 Tex. 182, 190, 328
(Tex.1989); Barnes v. Whittington, 751 S.W.2d 493             S.W.2d 434, 439 (Tex.1959). This standard, literally
(Tex.1988); Lunsford v. Morris, 746 S.W.2d 471                applied, would justify mandamus review whenever an
(Tex.1988); Turbodyne Corp. v. Heard, 720 S.W.2d 802          appeal would arguably involve more cost or delay than
(Tex.1986); Terry v. Lawrence, 700 S.W.2d 912                 mandamus. This is unworkable, both for individual cases
(Tex.1985); Lindsay v. O’Neill, 689 S.W.2d 400                and for the system as a whole. Mandamus disrupts the
(Tex.1985).                                                   trial proceedings, forcing the parties to address in an
                                                              appellate court issues that otherwise might have been
On many other occasions, however, we have still required      resolved as discovery progressed and the evidence was
a showing of inadequate *842 remedy by appeal in              developed at trial. Moreover, the delays and expense of

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Walker v. Packer, 827 S.W.2d 833 (1992)



mandamus proceedings may be substantial. This                    (Tex.1974). As we noted in Crane: “After the [privileged
proceeding, for example, involving rulings on collateral         documents] had been inspected, examined and reproduced
discovery matters, has delayed the trial on the merits for       ... a holding that the court had erroneously issued the
over two years. The impact on the appellate courts must          order would be of small comfort to relators in protecting
also be considered. We stated in Braden that “[t]he              their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may
judicial system cannot afford immediate review of every          also occur where a discovery order compels the
discovery sanction.” 811 S.W.2d 922, 928. It follows that        production of patently irrelevant or duplicative
the system cannot afford immediate review of every               documents, such that it clearly constitutes harassment or
discovery order in general.9 We therefore disapprove of          imposes a burden on the producing party far out of
Cleveland, Crane, Jampole and any other authorities to           proportion to any benefit that may obtain to the requesting
the extent that they imply that a remedy by appeal is            party. See, e.g., Sears, Roebuck & Co. v. Ramirez, 824
inadequate merely because it might involve more delay or         S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992) (demand for tax
cost than mandamus.                                              returns); General Motors Corp. v. Lawrence, 651 S.W.2d
                                                                 732 (Tex.1983) (demand for information about all
Justice Doggett’s dissent argues that because discovery          vehicles for all years).
errors often constitute harmless errors under
                                                                 [14] [15]
Tex.R.App.P. 81(b)(1), parties denied mandamus relief                    Second, an appeal will not be an adequate remedy
will be deprived of any remedy since the *843 error will         where the party’s ability to present a viable claim or
not provide a basis for appellate reversal. This is nothing      defense at trial is vitiated or severely compromised by the
more than a thinly disguised attack on the harmless error        trial court’s discovery error. It is not enough to show
rule. Avoiding interlocutory appellate review of errors          merely the delay, inconvenience or expense of an appeal.
that, in the final analysis, will prove to be harmless, is one   Rather, the relator must establish the effective denial of a
of the principal reasons that mandamus should be                 reasonable opportunity to develop the merits of his or her
restricted.                                                      case, so that the trial would be a waste of judicial
                                                                 resources. We recently held that when a trial court
Justice Doggett’s dissent also suggests that we will be          imposes discovery sanctions which have the effect of
unable to develop a coherent body of discovery law               precluding a decision on the merits of a party’s claims—
without unrestricted mandamus review. We do not think,           such as by striking pleadings, dismissing an action, or
however, that losing parties will be reluctant to raise          rendering default judgment—a party’s remedy by
perceived discovery errors on appeal, nor will an                eventual appeal is inadequate, unless the sanctions are
appellate court be foreclosed from writing on discovery          imposed simultaneously with the rendition of a final,
issues, even when the error may be harmless. See, e.g.,          appealable judgment. TransAmerican Natural Gas Corp.
Lovelace v. Sabine Consolidated, Inc., 733 S.W.2d 648,           v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly, a
652–53 (Tex.App.—Houston [14th Dist.] 1987, writ                 denial of discovery going to the heart of a party’s case
denied).                                                         may render the appellate remedy inadequate.
                                                                 [16] [17]
Nor are we impressed with the dissenters’ claim that strict              Finally, the remedy by appeal may be inadequate
adherence to traditional mandamus standards will signal          where the trial court disallows discovery and the missing
an end to effective interlocutory review for some parties        discovery cannot be made part of the appellate record, or
or classes of litigants. There are many situations where a       the trial court after proper request refuses to make it part
party will not have an adequate appellate remedy from a          of the record, and the reviewing court is unable to
clearly erroneous ruling, and appellate courts will              evaluate the effect of the trial court’s error *844 on the
continue to issue the extraordinary writ. In the discovery       record before it. See Tom L. Scott, Inc. v. McIlhany, 798
context alone, at least three come to mind.                      S.W.2d 556, 558 (Tex.1990) (“[M]andamus is the only
                                                                 remedy because the protective order shields the witnesses
[13]
    First, a party will not have an adequate remedy by           from deposition and thereby prevents the evidence from
appeal when the appellate court would not be able to cure        being part of the record.”); see generally Jampole, 673
the trial court’s discovery error. This occurs when the trial    S.W.2d at 576 (“Because the evidence exempted from
court erroneously orders the disclosure of privileged            discovery would not appear in the record, the appellate
information which will materially affect the rights of the       courts would find it impossible to determine whether
aggrieved party, such as documents covered by the                denying the discovery was harmful.”). If the procedures
attorney-client privilege, West v. Solito, 563 S.W.2d 240        of Tex.R.Civ.P. 166b(4) are followed, this situation
(Tex.1978), or trade secrets without adequate protections        should only rarely arise. If and when it does, however, the
to maintain the confidentiality of the information.              court must carefully consider all relevant circumstances,
Automatic Drilling Machines v. Miller, 515 S.W.2d 256            such as the claims and defenses asserted, the type of

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Walker v. Packer, 827 S.W.2d 833 (1992)



discovery sought, what it is intended to prove, and the       restricting faculty members from testifying for plaintiffs
presence or lack of other discovery, to determine whether     in medical malpractice cases. This policy was sought for
mandamus is appropriate.10                                    use in impeaching defendant’s expert witness, Dr.
                                                              Gilstrap. In refusing discovery, the trial court concluded
[18]
   In the present case, the Walkers seek documents from       *845 that the relevance of this material was limited to
the Center to impeach one defendant’s expert witness.         impeachment. As such, the requested documents fell
This information is not privileged, burdensome or             squarely within the prohibition of Russell.
harassing, nor does it vitiate or severely compromise the
Walkers’ ability to present a viable claim. In fact, as we    Despite the court’s mischaracterization of Russell, the
have already noted, the trial court may ultimately            issues and type of evidence sought here and in Russell are
conclude that it is not admissible or even discoverable.      identical. Just as in Russell, the records sought in the
Finally, although the materials are not before us, they       instant case did not relate directly to the subject matter of
were considered below, and we know of no reason why           the suit. The only difference between the present case and
they would not be available on appeal. Therefore, under       Russell is the identity of the party seeking the
our traditional standards of mandamus review, as              information. In Russell, a defendant sought evidence to
measured by the factors we mention above, the Walkers         impeach the plaintiffs’ expert; here, the plaintiff sought
have an adequate remedy by appeal and mandamus is             evidence to impeach a defendant’s expert. Surely, we
inappropriate.                                                cannot have a rule that changes in application depending
                                                              on whether the relator is a plaintiff or a defendant in the
For the above reasons, we conclude that the Walkers have      trial court.
not established their right to relief by mandamus on either
discovery matter. Therefore, we deny the Walkers’             In my opinion, the court strains to distinguish Russell.
petition for writ of mandamus.                                The court suggests that the trial judge made a mistake in
                                                              her ruling by failing to read Russell in conjunction with
                                                              the rules of civil procedure and evidence. However, when
                                                              we adopted the new Texas Rules of Civil Evidence, there
                                                              was no discussion whatsoever that, by their adoption, we
GONZALEZ, J., concurs and files an opinion.                   intended to reject the settled rule that information sought
                                                              solely for impeachment of a non-party is not discoverable.
DOGGETT, J., dissents and files an opinion, joined by
                                                              Russell, 452 S.W.2d at 435; see also W.W. Rodgers &
MAUZY, J.
                                                              Sons Produce Co. v. Johnson, 673 S.W.2d 291, 294–95
GAMMAGE, J., dissents and files an opinion.                   (Tex.App.—Dallas 1984, orig. proceeding). Furthermore,
                                                              the scope of discovery has not changed in the twenty
GONZALEZ, Justice, concurring.                                years since Russell has been on the books. When Russell
                                                              was decided, the scope of discovery was codified in Texas
I agree with the court’s disposition of this cause but        Rule of Civil Procedure 186a. It provided in pertinent part
disagree with the court’s opinion regarding the               that:
“Obstetrics Faculty Records.” Specifically, I disagree
with the court’s attempt to distinguish Russell v. Young,                  [p]arties may obtain discovery
452 S.W.2d 434 (Tex.1970). Nevertheless, I concur in the                   regarding any matter which is
result.                                                                    relevant to the subject matter in the
                                                                           pending action whether it relates to
Russell holds that wholesale discovery of the private                      the claim or defense of the party
records of a non-party witness is not permitted if the sole                seeking discovery or the claim or
purpose for discovery is to impeach the credibility of the                 defense of any other party.
non-party.1 452 S.W.2d at 435. The policy considerations
of Russell still apply today. By disapproving of Russell as   This same text is now codified in Rule 166b(2)(a).
“a mechanical approach to discovery rulings,” at 839, the     Clearly, impeachment evidence regarding collateral
court forces trial courts to get further involved in          matters would not relate to the subject matter of the
discovery matters. This increases the backlog, delay, and     pending action.
cost of litigation by creating the need for more hearings.
                                                              Implicitly, the court concludes that the credibility of a
In the instant case, the plaintiffs sought to discover        non-party witness alone is a relevant avenue of inquiry
documents from the University of Texas Health Science         and, thus, is a matter properly open to discovery under
Center to confirm the existence of a written policy           some new, broader definition of relevancy.

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Walker v. Packer, 827 S.W.2d 833 (1992)




While I agree that the definition of relevance in Rule 401     I am concerned that as a result of today’s ruling, some
of the Texas Rules of Civil Evidence includes matters          non-parties will be subjected to harassment and intrusion
bearing on credibility, this alone does not explain or         into their private lives, and that trial courts will be
distinguish Russell. A witness’ credibility has always         inundated with hearings on collateral issues far afield
been a relevant matter. As the United States Supreme           from the merits of the cause of action or defense. The
Court has said: “[p]roof of bias is almost always relevant     court has attempted to fix something that was not broken.
because the jury, as finder of fact and weigher of             This reinterpretation of Russell will further tax our
credibility, has historically been entitled to assess all      overburdened judicial system without appreciably
evidence which might bear on the accuracy and truth of a       benefiting the litigants or the system.
witness’ testimony.” United States v. Abel, 469 U.S. 45,
52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). Yet in          Finally, for the reasons expressed in Joachim v.
Russell, we said that a trial court lacked “authority” to      Chambers, 815 S.W.2d 234, 241 (Tex.1991) (Gonzalez,
order discovery from a non-party solely for purposes of        J., dissenting), I agree with the clarification of the
impeachment. 452 S.W.2d at 435. We chose to withdraw           standards for the issuance of mandamus.
all discretion in this particular area of discovery. Russell
concedes that impeachment evidence may be relevant and
admissible at trial, but holds that it cannot be discovered
from a non-party for its own sake prior to trial. 452          DOGGETT, Justice, dissenting.
S.W.2d at 436.

The fact that a matter may have some relevance yet not be        Them that’s got shall get
subject to discovery is hardly a novel concept. The basic
                                                                  Them that’s not shall lose
premise of the rules of discovery is to weigh the
                                                                 —God Bless The Child1
legitimate needs of litigation against the other rights and
values that would be irreparably harmed by unfettered
                                                               With a double standard, the majority strikes a devastating
discovery. Russell strikes the proper balance by protecting
                                                               blow at the most direct method of curbing abuses of
non-party witnesses from indiscriminate invasions into
                                                               judicial power. Many judicial excesses far beyond the
their private lives where the information sought would not
                                                               scope of anything alleged in this particular case will
appreciably shed light on the issues of the case.
                                                               henceforth receive only an official nod and wink from the
                                                               Texas Supreme Court.
Furthermore, the decision in Russell was not grounded on
whether the credibility of the witness had been placed in
                                                               Mandamus is the legal tool by which appellate courts can
doubt. Instead, the court highlighted the fact that *846 the
                                                               promptly correct arbitrary and capricious rulings by trial
witness had not offered testimony at trial nor was his
                                                               judges. Today’s opinion announces that this remedy will
deposition introduced into evidence at trial. The court
                                                               be available to support concealment of the truth but not its
said:
                                                               disclosure. Mandamus is officially declared a one-way
                                                               street in the Texas courts—our judiciary can help to hide
            Relator has not yet taken the                      but not to detect.
            witness stand nor has his deposition
            been introduced into evidence                      Despite a determination that a “clear abuse of discretion”
            because there has not yet been a                   has occurred in this particular case, at 840, all relief is
            trial; relator’s records cannot                    denied. Finding a wrong and denying a remedy echoes the
            possibly have impeachment value                    logic of the majority’s recent conclusion that a tax is
            because there is nothing yet to                    unconstitutional but must be paid anyway. See
            impeach and there may never be                     Carrollton–Farmers Branch Indep. Sch. Dist. v.
            anything to impeach, depending                     Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 524 (1992)
            upon the contents of the testimony,                (Edgewood III ) (Doggett, J., dissenting). Rather than
            if any, which is introduced during                 correcting the abuse, the court simply gives the Walkers
            the trial of the lawsuit.                          the same message it gave Texas taxpayers—wait. Only
                                                               after a full jury trial based upon incomplete discovery will
Russell, 452 S.W.2d at 437. Thus, it is evident that the
                                                               the judiciary even consider any possibility of relief.
court has today reinterpreted Russell with little or nothing
to gain in a way that further obscures the proper scope of
discovery.

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Walker v. Packer, 827 S.W.2d 833 (1992)



For those who have previously sought more specific               perpetrator. In such situations denial of discovery
guidelines for the use of mandamus concerning discovery          effectively means denial of all relief. That reality does not
orders, the majority responds with not one but two               go unrecognized by today’s majority.
standards for reviewing trial court action: orders
compelling discovery may be immediately corrected;               Entities that begin litigation in control of most of the
review of denied discovery is postponed indefinitely in a        relevant evidence can often defeat their adversaries
manner to ensure that no meaningful relief will ever be          simply by denying them the power of information:
forthcoming.
                                                                              [T]hose with established positions
                                                                              of power are more likely to ... win
                                                                              by preventing their adversaries
                                                                              from producing evidence; they are
                             I.                                               less likely to be in the position of
                                                                              having to extract evidence from
What a different path this court now pursues than that so
                                                                              their opponents to make out their
recently proclaimed in its unanimous decision that
                                                                              case.
  Discovery is ... the linchpin of the search for truth, as it
                                                                 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal
  makes “a trial less *847 a game of blind man’s bluff
                                                                 Practice & Procedure § 5422, at 674 (1980). With its
  and more a fair contest with the issues and facts
                                                                 separate and unequal treatment of litigants, the majority
  disclosed to the fullest practicable extent.”
                                                                 gives yet another edge to the already advantaged.
State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting          Providing immediate review for orders that start the flow
United States v. Proctor & Gamble Co., 356 U.S. 677,             of information but refusing to consider those that stop it,
682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). Similarly        the majority once again expresses its preference for
ignored are our recent, unanimous writings in Axelson,           helping the powerful over the seemingly powerless. Those
Inc. v. McIlhany, 798 S.W.2d 550, 553, 555 (Tex.1990,            opposing meaningful discovery
orig. proceeding) (“[Discovery should provide] the fullest
knowledge of the facts and issues prior to trial.... [T]he                    tend to be institutions rather than
ultimate purpose of discovery ... is to seek the truth....”);                 individuals, and tend to be among
and Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559                       the more wealthy and powerful
(Tex.1990, orig. proceeding) (“The primary policy behind                      segments of society. A review
discovery is to seek truth so that disputes may be decided                    system that gives priority (that is,
by facts that are revealed rather than concealed.”).                          immediate      review)    to      the
Without mandamus review to add meaning to these                               complaints of privilege holders, but
laudatory expressions, they are just hollow words. The                        which consigns the complaints of
new signal is clear—circumvent discovery and conceal                          parties seeking discovery until after
information.                                                                  final judgment, gives an advantage
                                                                              to those wealthy institutional
Today’s opinion reflects the radical change in philosophy                     litigants. They have the power to
which has taken firm hold in this court—discovery is no                       achieve more favorable results
longer a search for truth, it is merely a game of hide and                    during the pretrial process; their
seek. No longer may appellate courts intercede through                        opponents must wait.
mandamus even for the trial court’s complete abuse of
discretion in denying access to vital data; under the            Elizabeth G. Thornburg, Interlocutory Review of
                                                                 Discovery Orders: An Idea Whose Time Has Come, 44
newly-announced double standard, intervention can,
                                                                 Sw.L.J. 1045, 1082 (1990) (hereinafter Review of
however, be accorded for those who persevere in evasion.
                                                                 Discovery Orders ) (footnote omitted).2 In this way the
When a local business is defrauded, when a community is          *848 majority ensures that the scales of justice—which at
exposed to dangerous toxic wastes, when a manufacturer           the onset of litigation are often in reality uneven—never
                                                                 achieve balance.
ignores reports that a safety design change would reduce
user injuries, when a monopoly extorts unfair gain from
                                                                 Until this court included discovery orders within the
the public, when discrimination results in job loss, and in
                                                                 scope of mandamus review, very few reported opinions
numerous other circumstances, the burden of proving
wrongdoing is exceedingly difficult to satisfy without           addressed this important subject. Trial judges were
obtaining evidence of that wrong from the files of the           effectively accorded unlimited discretion with a “resulting

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Walker v. Packer, 827 S.W.2d 833 (1992)



atmosphere [that] was very hostile to discovery.” Id. at       the Texas Bar Journal. Rather, the court has a duty both
1071. As a practical matter, discovery battles, often both     to make the rules and to interpret them.
complex and time-consuming, were shunned. When the
party controlling vital data exercises the power of            Our American system of jurisprudence is founded on the
withholding it, fighting every important request, the          precept that it is of great benefit to have a written body of
judicial command “go work it out” often amounts to a           case law construing controlling legal principles and
denial of meaningful discovery. The mud-wrestling that         applying them to particular facts. This approach is
frequently ensues in such contests may discourage a trial      undeniably desirable in the discovery context:
judge from determining who is acting fairly and who
started the fight. If mandamus is not available to correct                  In a system where trial court
ill-considered or hasty denials, the hope for ultimate                      decisions are unreported and have
justice in complex litigation is prematurely crushed. The                   no precedential value, the creation
majority’s decision today marks a return to those dark                      of a body of reported appellate case
ages when discovery was regularly denied as the path of                     law regarding discovery has
least resistance and greatest convenience for the judiciary.                substantial value. Case law on
                                                                            discovery      promotes       uniform
                                                                            interpretation of the discovery rules
                                                                            and, in time, decreases the
                                                                            opportunity for individual *849
                            II.                                             judge’s biases to shape discovery
                                                                            outcomes. Reported decisions
By its very nature, discovery involves a search for what is
                                                                            develop clear rules, where rules are
largely unknown from someone who may have an
                                                                            possible, and narrow the range of
incentive to make that search as long and tortuous as
                                                                            judicial discretion in other areas
possible. Efforts to prevent discovery have been limited
                                                                            simply by providing numerous
only by the boundless imagination of the top legal talent
                                                                            cases finding that the trial court did
in America. Requests are either too broad or too narrow;
                                                                            or did not abuse its discretion. Such
records produced are either minimal or in such
                                                                            case law can be particularly helpful
voluminous, disorganized form as to make locating
                                                                            in a jurisdiction that has recently
relevant information most difficult; vital documents
                                                                            amended its discovery rules. Over
vanish in “routine document destruction” programs or are
                                                                            time, the existence of discovery
misplaced. Accordingly, our discovery rules have
                                                                            case law may even clarify the rules
required continual revision to cope with the newest ways
                                                                            sufficiently so as to decrease the
invented by those intent on subverting the process. Each
                                                                            number of disputes in the trial
revision of the Texas Rules of Civil Procedure during the
                                                                            court.
last decade has included attempted clarification and
improvement of discovery procedures. This has produced         Review of Discovery Orders at 1080 (footnotes omitted).
a body of law that is “complex and rapidly evolving.”          Appellate opinions properly applying mandamus produce,
David W. Holman & Byron C. Keeling, Entering the               then, both more consistency and more accuracy in trial
Thicket? Mandamus Review of Texas District Court               court decisions. See id. at 1077.3
Witness Disclosure Orders, 23 St. Mary’s L.J. 365, 375
(1991) (hereinafter Mandamus of Disclosure Orders ).           The role of this court is particularly important in
                                                               answering novel or significant questions of discovery law.
Given the creativity of those who would thwart discovery,      See Mandamus of Disclosure Orders at 376 (“[P]re-trial
rules of procedure cannot be drawn to provide clear            appellate review of [important discovery] questions could
guidance in every situation; judicial interpretation is        lend critical guidance to the development of Texas
essential. The more complicated the rule, the more             discovery practice.”). Rather than avoiding its
necessary the construction and the greater the likelihood      responsibility, this court should utilize mandamus review
for misinterpretation. See id. at 386 (“Erroneous              to reduce the abuse of judicial power when “a unique
interpretations of these changes ... are likely with the       question of discovery” law is presented. David West,
absence of prior significant precedent.... [and] could have    Note, The Use of Mandamus to Review Discovery Orders
a substantial effect on the subsequent course of a             in Texas: An Extraordinary Remedy, 1 Rev.Litigation
lawsuit.”). This court’s responsibility does not and cannot    325, 327 (1981) (hereinafter The Use of Mandamus ).
end when the text of promulgated amendments appears in


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Walker v. Packer, 827 S.W.2d 833 (1992)



Most trial court mistakes denying discovery result from        Mandamus Procedure in Texas Courts, 31 S.Tex.L.Rev.
the need to make repeated, quick decisions based upon          509, 512 (1990). As another commentator has aptly
limited information. Recognizing this circumstance, trial      concluded,
judges sometimes actually encourage litigants to raise
disputed rulings affecting truly vital matters for appellate                only an unusual discovery order
examination through mandamus by automatically staying                       would be dispositive enough to
their orders. Refusal of prompt appellate review not only                   show the harmful error that most
denies a party its rights but may also deprive a trial court                jurisdictions require for appellate
of desired guidance.                                                        reversal.     Many       appellants,
                                                                            therefore, would not even raise the
Today’s opinion appropriately recognizes that “this Court                   discovery points on appeal.
will not grant mandamus relief unless we determine that
the error is of such importance to the jurisprudence of the    Review of Discovery Orders at 1056; see also Mandamus
state as to require correction.” At 839 n. 7. But under the    of Disclosure Orders at 376 n. 40 (observing that, because
standard announced, questions of importance concerning         of the harmless error rule, many discovery rulings are not
judicially-approved concealment of facts will never be         pursued on appeal). In denying mandamus today, the
considered. The significance to the state’s jurisprudence      majority closes and locks the appellate courthouse door to
of a ruling should certainly not be controlled by whether      any meaningful consideration of numerous significant
the order granted or denied discovery.                         matters.




                            III.                                                            IV.

With mandamus now severely limited, many important             Only with the tragic recent change in course by this
issues will not be reviewed. See generally Review of           court’s majority has such denial of access become
Discovery Orders at 1056; The Use of Mandamus at 337           acceptable. Previously both this court and the courts of
& n. 94. Abuses of judicial power will go forever              appeals had employed their writ power as necessary to
uncorrected when the party disallowed discovery,               correct the abusive refusal of discovery. Among those
realizing the difficulty of proving a case with less than      cases providing the foundation for appropriate mandamus
full information and the uphill task of maintaining a          review is Barker v. Dunham, 551 S.W.2d 41 (Tex.1977,
successful appeal, is either forced to settle or forgoes a     orig. proceeding), in which the trial court had overruled a
costly and extended appeal following defeat on the entire      motion to complete an expert witness’s deposition and to
case. Nor will improper rulings ever be reviewed where         compel production of his work papers. We interceded,
one denied discovery, although severely handicapped,           stating that: “It is settled that the writ of mandamus may
nonetheless prevails at trial.                                 issue in a discovery proceeding to correct a clear abuse of
                                                               discretion by a trial judge.” Id. at 42. Similarly, in Allen v.
Where appeals do occur, remedies will be rare even for         Humphreys, 559 S.W.2d 798 (Tex.1977, orig.
egregious pretrial rulings. To succeed in this endeavor,       proceeding), the trial court refused to order discovery of
one must show that                                             tests, surveys and complaints by similarly affected
                                                               persons. This court found an abuse of discretion and
            the error complained of amounted                   granted the writ, despite the argument that the plaintiff
            to such a denial of the rights of                  had “an adequate remedy via the normal appellate
            appellant as *850 was reasonably                   process.” Id. at 801. It is difficult to perceive, in light of
            calculated to cause and probably                   this argument and the court’s subsequent grant of
            did cause rendition of an improper                 mandamus relief, how the majority can now claim that
            judgment in the case, or was such                  “we [had] not focused” on the requirement of an
            as probably prevented the appellant                inadequate remedy by appeal in Allen and on, admittedly,
            from making a proper presentation                  a “few [other] occasions.” At 840–841.
            of the case to the appellate court.
                                                               Following these two opinions, this court has not hesitated
Tex.R.App.P. 81(b). This standard is universally regarded      to consider and correct the wrongful denial of discovery.
as a “more difficult hurdle” than abuse of discretion.         By issuing mandamus to rectify an erroneous trial court
Helen A. Cassidy, The Instant Freeze–Dried Guide to            ruling refusing discovery in Jampole v. Touchy, 673

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Walker v. Packer, 827 S.W.2d 833 (1992)



S.W.2d 569 (Tex.1984, orig. proceeding), this court
recognized that appeal is not an adequate remedy:               One of the most significant casualties is Jampole v.
                                                                Touchy, which has formed the centerpiece for discovery
  [R]equiring a party to try his lawsuit, debilitated by the    in litigation over defective products and toxic substances
  denial of proper discovery, only to have that lawsuit         for almost a decade. The majority, in a massive
  rendered a certain nullity on appeal, falls well short of a   understatement, “disapproves” Jampole “to the extent [it
  remedy by appeal that is “equally convenient,                 implies] that a remedy by appeal is inadequate merely
  beneficial, and effective as mandamus.”                       because it might involve more delay or cost than
                                                                mandamus.” At 842. Although leaving untouched for now
Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190,          this court’s prior writing on the proper scope of discovery,
328 S.W.2d 434, 439 (1959) (citation omitted)); see also        the majority has in fact overruled that landmark precedent
Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068          in its entirety. Despite a gross abuse of discretion in
(Tex.1926).                                                     denying critical discovery in Jampole, the majority’s only
                                                                correction by mandamus would be to require inclusion of
A trial court’s unwillingness to order the production of        the disputed materials in *852 the record, to await a
accident scene photographs was overturned by mandamus           deferred and meaningless appellate review.
in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig.
proceeding). In Lindsey v. O’Neill, 689 S.W.2d 400, 402
(Tex.1985, orig. proceeding) (per curiam), the court
overturned by mandamus an order limiting the scope of a
deposition and quashing the accompanying document                                           V.
request. A blanket order protecting hospital records was
similarly vacated by mandamus in Barnes v. Whittington,         Instead of affording the relief that prior rulings demand,
751 S.W.2d 493 (Tex.1988, orig. proceeding). In                 the majority announces, after considerable mental
Lunsford v. Morris, 746 S.W.2d 471 (Tex.1988, orig.             gymnastics, that “at least three [discovery situations]
proceeding), this court again granted mandamus to               come to mind” where mandamus is justified, at 843; then
remedy a trial court’s erroneous disallowance *851 of           it strangely proceeds to describe six. The first three
relevant discovery. See also Loftin v. Martin, 776 S.W.2d       instances where remedy by appeal is inadequate stem
145 (Tex.1989, orig. proceeding) (correcting by                 from a trial court’s wrongful allowance of discovery.
mandamus wrongful denial of discovery); Turbodyne               First, mandamus will issue if “disclosure of privileged
Corp. v. Heard, 720 S.W.2d 802 (Tex.1986, orig.                 information ... will materially affect the rights of the
proceeding) (per curiam) (mandamus directing trial court        aggrieved party.” At 843. This requisite is easily fulfilled
to rescind order denying discovery of documents from            with discovery objections that include an assertion of
insurer in subrogation action); Ginsberg v. Fifth Court of      privilege, the violation of which necessarily impinges on
Appeals, 686 S.W.2d 105 (Tex.1985, orig. proceeding)            the objecting party’s rights.
(erroneous bar of deposition by court of appeals cured by
mandamus).4                                                     Second, mandamus will issue when a trial court orders the
                                                                disclosure of “trade secrets without adequate protections
It is only after fifteen years of repeated judicial reliance    to maintain the confidentiality of the information.” At 843
upon Barker and Allen in the issuance of numerous               (citing, without discussion, Automatic Drilling Machs.,
opinions that we learn these precedents of our court are        Inc. v. Miller, 515 S.W.2d 256 (Tex.1974, orig.
not good law. This is all the more strange in that we had       proceeding)). Posing numerous problems, this hastily-
explicitly refused to overrule them. When that very             drawn exception has no relevance to the instant case and
request was urged in Jampole, 673 S.W.2d at 576, our            was concocted by the majority without any briefing or
answer was unmistakable: “We decline to do so.” But the         argument by counsel. One privilege is thereby
majority’s new answer is simple: “Line them up against          unjustifiably elevated above all others. Moreover, the
the wall.” What does it matter that a dozen or more Texas       writing implies an absolute protection of trade secrets
Supreme Court cases and countless decisions of the courts       from discovery when in fact this privilege is most
of appeals are to the contrary? They can be disposed of in      definitely qualified, as recognized by Automatic Drilling,
a mass execution of precedent.5 Today’s firing squad            515 S.W.2d at 259,6 the rule itself, Tex.R.Civ.Evid. 507
announces that it is only answering the command of Jim          (trade secrets not protected when nondisclosure conceals
Sales and two law students who separately criticized the        fraud or works injustice), and even Mr. Sales, whose
court during the period 1977–79. At 840–841. It thereby         writing purportedly warranted today’s brash action. 7 Nor
rationalizes constructing so distorted a standard on the        does this exception consider the availability in some cases
corpses of so many prior authorities.                           of the interlocutory appeal mechanism provided in

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Walker v. Packer, 827 S.W.2d 833 (1992)



Tex.R.Civ.P. 76a(8) to address the adequacy of a                obstructionists. Once again the majority provides an
protective order. See Eli Lilly & Co. v. Marshall, Order        incentive for concealment.
Granting Leave to File Petition for Writ of Mandamus
(Doggett, J., dissenting), 829 S.W.2d 156 (Tex.1991).           The remaining two situations address the wrongful denial
                                                                of discovery, and constitute a narrow path in the woods
The third situation requiring mandamus is an “order [that]      compared to the expressway for resisting discovery
compels the production of patently irrelevant or                constructed in the previous four exceptions. Mandamus is
duplicative documents, such that it clearly constitutes         possible when
harassment or imposes a burden on the producing party
far out of proportion to any benefit that may obtain to the                 the missing discovery cannot be
requesting party.” At 843. This “catch-all” exception                       made part of the appellate record,
indeed makes the extraordinary writ of mandamus an                          or the trial court after proper
ordinary one. In almost any complex litigation, the claim                   request refuses to make it part of
of burden is essentially a form objection to discovery. It is               the record, and the reviewing court
difficult to perceive a dispute in which the party seeking                  is unable to evaluate the effect of
to obstruct the process could not and, after today’s                        the trial court’s error on the record
decision, will not claim harassment or imposition of an                     before it.
undue burden. See, e.g., Sears, Roebuck & Co. v.
Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam)                 At 843–844. The quick fix of including materials in the
(granting mandamus to preclude disclosure of corporate          appellate record is both ingenious and ingenuous. It has
tax returns on the basis of undue burden and unnecessary        the immediate “benefit” of excluding a great number of
expense, not privilege).8                                       errors in the discovery area from mandamus review. As
                                                                the majority in fact recognizes, “this situation should only
A fourth exception, based on *853 Transamerican                 rarely arise.” At 844.9 And if it ever does, the majority
Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991,          guarantees that no relief will be forthcoming, by directing
orig. proceeding), is described when the trial court            that the reviewing court
imposes “discovery sanctions ... precluding a decision on
the merits of a party’s claims ... unless the sanctions are
imposed simultaneously with the rendition of a final,              carefully consider all relevant circumstances, such as
appealable judgment.” At 843 (emphasis deleted). The               the claims and defenses asserted, the type of discovery
majority falsely suggests that today’s standard creates a          sought, what it is intended to prove, and the presence or
symmetry with Transamerican. Unlike Transamerican,                 lack of other discovery, to determine whether
which treated the striking of a petition in the same manner        mandamus is appropriate.
as the entry of a default judgment, this ruling creates a          At 844. Within these constraints, there will always be a
double standard. Unlike Transamerican, which involved a            readily available excuse to deny both discovery and
readily-perceptible wrong such as an order of dismissal, a         mandamus.
determination of whether hidden documents “go to the            In most cases the materials can be boxed up, file-stamped,
heart of a party’s case,” at 843, involves significant          and sent to the appellate court. How this will accomplish
uncertainties.                                                  anything more than cluttering the judicial chambers is
                                                                quite another matter. No clue is given as to how to resolve
More importantly, Transamerican was issued at a time            the obvious difficulties inherent in appellate
when the announced policy of this court was to deter            determination, without any effective argument and
abuses of discretion without regard to whether discovery        analysis by counsel, of whether each item would have
was granted or denied. A wide spectrum of sanction              affected the result. Moreover, this approach improperly
orders arising from discovery rulings are immediately           requires courts of appeals to act as juries while denying to
appealable. See Braden v. Downey, 811 S.W.2d 922                the true fact-finder evidence that may be highly *854
(Tex.1991,      orig.    proceeding).     Superimposing         relevant to the proceeding. This distrust of juries—of
Transamerican and Braden on today’s double standard             ordinary people resolving factual disputes—is
sends a clear message to the rare trial court that would        increasingly reflected in the majority’s decisions.10
impose significant penalties on those who obstruct
discovery with deceit and delay—be careful. There is no         The only hope for review of a trial court’s order denying
real danger of immediate and genuine appellate                  discovery is upon proof that a claim has been “vitiated or
examination of an order denying discovery, but there is a       severely compromised by the trial court’s discovery
constant threat of appellate review of an order granting        error.” At 843. It must be shown “that the trial would be a
discovery or imposing meaningful sanctions on                   waste of judicial resources,” at 843, and that “a denial of

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Walker v. Packer, 827 S.W.2d 833 (1992)



discovery [goes] to the heart of a party’s case.” At 843. It     bit as real from improper grants of discovery. As a
is far from clear whether these encompass one or three           practical matter there is probably less danger that a trial
different standards. What is clear is that few cases, if any,    judge will capriciously ignore properly established
will satisfy whatever standard is applied.                       objections and privileges to accord too much information
                                                                 instead of too little. Nevertheless, I favor the use of
The majority offers no example of a case in which a party        mandamus to control abuse without regard to how it
has ever met such a heavy burden. Apparently an                  occurs or whom is helped. What I deplore is the
applicant for mandamus in this court must confess that,          discrimination which the majority officially substitutes for
without the discovery sought, the trial court should and         even-handedness. Scholars viewing *855 the so-called
must direct a contrary verdict. Any semblance of a chance        “Walker mandamus standard” should recognize that it is
at prevailing prevents a determination that the trial would      not a standard but an excuse for ignoring wrongdoing.
be a “waste of judicial resources” or that the discovery
denied goes “to the heart of a party’s case.” While this         After today’s decision, discovery disputes will no longer
situation may theoretically arise in the future, it will be      be resolved on a level playing field. I believe that
most unlikely. Nor is there any explanation of how a party       mandamus should be available to correct any trial court
can be expected to show such a probability without               abuse concerning a subject that is important to the
having any of the materials in question. We have                 jurisprudence of the state and which substantially affects
previously recognized the hardship inherent in showing           rights of an aggrieved party. If this requisite is satisfied,
need for documents when their contents are unknown.              relief should be accorded without regard to whether the
State v. Lowry, 802 S.W.2d 669, 673 (Tex.1991) (“It is           trial court has granted or denied discovery.
difficult for the [relators] to make a more particularized
showing of need for these documents, the contents of
which are unknown to them.”).

Application of today’s font of mandamus law to the                                           VI.
Walkers’ situation is most revealing. The majority
summarily concludes that the trial court’s misapplication        In supporting today’s opinion, Justice Gonzalez insists
of the law to deprive them of relevant evidence “does            that we must stem what he claims is an alarming increase
[not] vitiate or severely compromise the Walkers’ ability        in the number of mandamus filings. At 844–846
to present a viable claim.” At 844. Most ironically,             (Gonzalez, J., concurring). The view that “the sky is
today’s announcement imposes one type of double                  falling” is best reflected in the gruesome statistics and
standard on top of another alleged double standard. The          conclusions of his dissenting opinion in Joachim v.
Walkers claim they have uncovered a double standard at a         Chambers, 815 S.W.2d 234, 241 (Tex.1991). See also
taxpayer-financed institution that encourages faculty to         Jampole, 673 S.W.2d at 578 (Barrow, J., dissenting); cf.
defend those accused of medical malpractice while                C.L. Ray & M.R. Yogi McKelvey, The Mandamus
discouraging professional advice on behalf of the alleged        Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987).
victim. It is the merits of this revelation that the majority
so eagerly seals away from both the Walkers and the              Blaming an ever-increasing caseload for the Texas courts
public.                                                          on the advent of the discovery mandamus is wholly
                                                                 insupportable. These petitions most often present
Fully aware of the impact of expert credibility on the           emergency situations requiring expedited review and,
outcome of much medical malpractice litigation, the              consequently, are frequently viewed as a thorn in the side
majority denies the Walkers the very information that            of appellate courts. See Review of Discovery Orders at
could perhaps demonstrate the bias of a key witness. An          1059 n. 99. But I cannot agree that justice should be
official blessing is thus provided for trial court action that   denied or delayed solely to accommodate appellate
may have a material, adverse effect on their ability to          judges.
present a viable case. Having now learned that the denial
of impeachment evidence is never susceptible to                  Recent studies have debunked the myth of the mandamus
mandamus, it remains to be seen what other critical              explosion. The Joachim dissent, to which Justice
information will next be similarly viewed as unimportant         Gonzalez once again points with pride today, is based
to this majority.                                                upon an analysis that fails to segregate filings arising
                                                                 from discovery disputes. A more detailed study of
While the nature of the double standard approved by              Supreme Court experience during a period of more than
today’s writing requires that this dissent focus on              ten years correctly concluded that:
wrongful denials, I recognize that the wrong can be every

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Walker v. Packer, 827 S.W.2d 833 (1992)



  [I]nterlocutory review of discovery orders ... has [had]
  a positive effect.... The increase [in appellate caseloads]      If doubts remain as to the one-sidedness of the standard
  has been an extremely small and manageable one....               announced today, its application to currently pending
                                                                   cases should resolve them. See, e.g., Remington Arms Co.
.....                                                              v. Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13,
                                                                   1991) (trial court order which found documents relating to
  The numbers, then, suggest that while the availability           firearm safety relevant and required their production
  of interlocutory review of discovery orders added cases          stayed despite no timely response or objection being
  to the appellate docket, interlocutory review has not            made); Eli Lilly & Co. v. Marshall, No. D–1827, 35
  added a large or burdensome number of cases.                     Tex.S.Ct.J. 168, 354 (Dec. 3, 1991 and Jan. 23, 1992)
                                                                   (stays of trial court order directing production of
Review of Discovery Orders at 1047, 1059.                          information relating to the drug Prozac); see id. at 189
                                                                   (Order Granting Leave to File Petition for Writ of
The fact is that most petitions are denied, with fewer than        Mandamus) (Doggett, J., dissenting); Valley Baptist
3% granted by us during fiscal year 1991. Most of these            Medical Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J.
were handled expeditiously, with over half resolved                668 (June 18, 1991) (stay issued to protect hospital from
within one month of filing. Moreover, Justice Gonzalez             disclosure of materials relating to policy of informing
completely ignored the fact that mandamus requests in              patients of risk of treatment), and 35 Tex.S.Ct.J. 452 (Feb.
this court actually decreased over the last three years.           12, 1992) (motion for leave to file granted). One
There were 202 of these in fiscal 1991, down from 257              interested in verifying the true meaning of the majority’s
and 258, respectively, in fiscal 1989 and 1990. Although           carefully chosen words will do well to observe how the
the court’s overall workload is expanding, the                     court actually disposes of each of these matters.
contribution of mandamus filings is certainly not
uncontrollable.11 “In deciding whether courts should
permit interlocutory *856 review in specific cases, judges
and commentators tend to emphasize the needs of court
administration over the needs of the litigants.” Id. at 1049.                        VIII. CONCLUSION
While cutting off the right to mandamus review when
discovery is denied may reduce the appellate workload,             In an apparent attempt to cope with a false “mandamus
the result will be a significant decline in the quality of         explosion,” today’s opinion has offered us an explosion of
justice. The inconvenience caused by the unexpected                another type—a reverberating detonation of this court’s
arrival of a petition that often demands immediate action          prior rulings. True the majority has considerable
is the price paid “to assure that ... trial proceedings are fair   experience in disregarding precedent as merely a lifeless
and equitable to all concerned parties.... ‘[W]e must not          thing of the past. See Edgewood III, 826 S.W.2d at 516,
sacrifice justice upon the altar of expediency.’ ”                 517 (Doggett, J., dissenting); Terrazas, 829 S.W.2d at 739
Mandamus Review of Disclosure Orders at 422 (quoting               (Mauzy, J., dissenting); Stewart Title Guaranty Co. v.
David W. Holman & Byron C. Keeling, Disclosure of                  Sterling, 822 S.W.2d 1, 12 (Tex.1991) (Doggett, J.,
Witnesses in Texas: The Evolution and Application of               dissenting). But a dozen or more Texas Supreme Court
Rules 166b(6) and 215(5) of the Texas Rules of Civil               authorities and even more rulings from the courts of
Procedure, 42 Baylor L.Rev. 405, 458 (1990)) (emphasis             appeals cut down at one time is not a modest
added).                                                            accomplishment. Precedent, no matter how voluminous or
                                                                   how well-established, will clearly not restrain this
                                                                   majority from accomplishing its preconceived social
                                                                   policy objectives.

                             VII.                                  Through both deed and now word, the majority invites a
                                                                   true explosion in mandamus filings. What does an
The majority announces here not a standard, but a pseudo-          attorney whose client faces the possibility of a judgment
standard. In reality, the rule is little more than “how can        for significant damages have to lose from accepting the
we help those whom we want to help?” The only true                 beneficence of a majority of this court ever willing to
precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712          serve as protector of the privileged? Will a deposition site
(Tex.1991), where Republican relators in redistricting             other than that ordered by the trial court *857 be more
were accorded relief in the Supreme Court never sought             costly and inconvenient to the claimant? Get a stay from
in any other forum. This “triple R exception to                    the Texas Supreme Court, even if your petition is still
mandamus,” id. at 760–61 (Mauzy, J., dissenting), only             pending in the court of appeals. See Continental Can Co.
presages the continued pursuit of this goal.
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Walker v. Packer, 827 S.W.2d 833 (1992)



v. Wittig, No. D–2015, 35 Tex.S.Ct.J. 355, 1992 WL
17415 (Jan. 29, 1992) (stay of trial court order directing                I dissent. Today’s decision departs from previous
engineering employee of products liability defendant to                   instances where this court has provided mandamus relief
be deposed in Houston rather than Chicago even though                     to correct a wrongful denial of discovery, and labors too
mandamus petition was pending in court of appeals). Did                   hard to conclude that appeal is an adequate remedy for a
the trial court resolve a conflict in deposition schedules in             party who is denied adequate discovery.
a manner unacceptable to an insurance company? Don’t
worry, the Texas Supreme Court will stay proceedings                      I would hold that mandamus is available to correct a trial
even without bothering to get a response from the affected                court error which negatively and materially affects the
judge. See Cigna Corp. v. Spears, No. D–2069, 35                          right of aggrieved parties to adequately present their
Tex.S.Ct.J. 463 (Feb. 19, 1992). Any attorney whose                       cases, whether the particular party is seeking discovery or
client desires to make more difficult access to information               resisting it. See Iley v. Hughes, 158 Tex. 362, 368, 311
that will jeopardize its credibility, suggest its liability or            S.W.2d 648, 652 (1958); see also Elizabeth G.
defeat its defenses would be foolish to accept a trial court              Thornburg, Interlocutory Review of Discovery Orders: An
discovery order. A majority of the Texas Supreme Court                    Idea Whose Time Has Come, 44 SW.L.J. 1045 (1990). In
is ready and willing to interfere for the asking.                         the case before us, the trial court’s denial of discovery has
                                                                          a material and adverse effect on the Walkers’ ability to
The ripple effect created by today’s refusal to accord                    present their case. The information they seek could
mandamus review to pretrial discovery orders will swell                   impugn the credibility of key expert witnesses at trial.
to tidal-wave proportion, and sweep before it any hope of                 Because their medical malpractice claim, like all such
fair and consistent application of our Texas discovery                    claims, will likely stand or fall on the credibility of the
rules. In many cases it will leave buried in the sand any                 expert witnesses, I would hold that the Walkers are
possibility of trials directed by the full and truthful                   entitled to the information they seek, and that relief by
revelation of the underlying facts. Juries will be forced to              appeal is inadequate.
resolve critical disputes based not on truths but rather
upon whatever half-truths can be discovered. Left in the                  Discovery is the “linchpin of the search for truth,” and
wreckage on the beach will be the tattered remains of the                 “[a]ffording parties full discovery promotes the fair
many prior decisions of this court and others that viewed                 resolution of disputes by the judiciary.” State v. Lowry,
litigation as a search for truth in which fair and prompt                 802 S.W.2d 669, 671 (Tex.1991). Today the court
appellate review of an order denying discovery was vital.                 removes and disposes of that “linchpin” and abandons
                                                                          enforcement of fair and adequate discovery. Because I
                                                                          believe that mandamus relief should be readily available
                                                                          when a court allows either too much or too little
                                                                          discovery, I dissent.
MAUZY, J., joins in this dissenting opinion.


GAMMAGE, Justice, dissenting.

Footnotes
1      St. Paul contends that the Walkers’ request for mandamus relief is barred by laches since the Walkers delayed almost two years
       before seeking to compel production. Because we find that the Walkers have failed to establish the requirements for mandamus
       relief, we do not reach this issue.
2      The court also sustained Aetna’s motion to quash, holding that the discovery requested was improper under the investigation
       exemption, the attorney-client privilege, and the work-product privilege. The Walkers do not complain to us about this ruling.
3      Even if no evidence had been presented, the Walkers would have had the burden of filing an affidavit so stating. See Barnes v.
       Whittington, 751 S.W.2d 493, 495 (Tex.1988) (“The undisputed fact that no testimony was adduced at any of the hearings, as
       set forth in the affidavit of relator’s counsel, satisfies the relator’s burden under Rule 121.”).
4      The records sought in Russell included, among others:
            (2) All appointment books maintained by [the expert physician] during 1969;
            (3) All statements, listings, ledgers, or other books showing the accounts receivable of [the expert physician] during 1969;
            (4) All deposit slips or tickets showing deposits into bank accounts of [the expert physician] during 1969;
            (5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in cash, by check or by

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Walker v. Packer, 827 S.W.2d 833 (1992)



          any other means [by the expert physician] during 1969;
          (6) All statements of account or bills for services rendered [by the expert physician] during 1969;
          (7) All accounting ledgers, journals or other books of account of [the expert physician] maintained during 1969; and
          (8) All financial statements showing income and expenses of [the expert physician] during 1969.
        452 S.W.2d at 435.
5     Evidence of bias is not admissible if the witness “unequivocally admits such bias or interest” at trial. Tex.R.Civ.Evid. 613(b).
      To date, however, Dr. Gilstrap has not admitted any bias, but rather has flatly denied it. In this situation, such evidence should
      be discoverable.
6     We do not decide whether the documents were properly discoverable, only that the trial court erred in denying discovery based
      solely on Russell. If the Walkers sought the documents solely to attack the credibility of Dr. Gilstrap by showing that his
      deposition testimony was untrue, for instance, the information would probably not be reasonably calculated to lead to the
      discovery of admissible evidence. See Tex.R.Civ.Evid. 608(b). (“Specific instances of the conduct of a witness [other than
      criminal convictions], for the purpose of attacking ... his credibility, may not be ... proved by extrinsic evidence.”).
7     Additionally, this Court will not grant mandamus relief unless we determine that the error is of such importance to the
      jurisprudence of the state as to require correction. Cf. Tex.Gov’t Code § 22.001(a)(6); Tex.R.App.P. 140(b). This issue,
      however, is properly resolved in deciding whether to grant leave to file the petition, not in its disposition.
8     See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (imposition of discovery sanctions);
      Schultz v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 739 n. 4 (Tex.1991) (refusal to enforce turnover order by
      contempt); Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) (refusal to bar judicial officer from testifying as expert
      witness); Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 (Tex.1991) (refusal to grant nonsuit); Bell Helicopter
      Textron, Inc., v. Walker, 787 S.W.2d 954, 955 (Tex.1990) (refusal to dismiss for lack of subject-matter jurisdiction); Champion
      Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (grant of new trial); Stringer v. Eleventh Court of
      Appeals, 720 S.W.2d 801, 801–02 (Tex.1986) (imposition of discovery sanction); Johnson v. Fourth Court of Appeals, 700
      S.W.2d 916, 917 (Tex.1985) (grant of new trial); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (denial of plea in abatement);
      State v. Walker, 679 S.W.2d 484, 485 (Tex.1984) (refusal to reinstate temporary injunction); Pat Walker & Co. v. Johnson, 623
      S.W.2d 306, 309 (Tex.1981) (refusal to extend time for filing statement of facts); State Bar of Texas v. Heard, 603 S.W.2d 829,
      833 (Tex.1980) (refusal to suspend attorney); Pope v. Ferguson, 445 S.W.2d 950, 953 (Tex.1969) (refusal to dismiss criminal
      case pending against relator), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Crane v. Tunks, 160 Tex. 182,
      190, 328 S.W.2d 434, 439 (1959) (discovery order); Iley v. Hughes, 158 Tex. 362, 367–68, 311 S.W.2d 648, 652 (1958)
      (bifurcation of trial); Harrell v. Thompson, 140 Tex. 1, 1, 165 S.W.2d 81, 81 (1942) (restriction of oil and gas production by
      Railroad Commission); Ben C. Jones & Co. v. Wheeler, 121 Tex. 128, 130, 45 S.W.2d 957, 958 (1932) (refusal to enter
      judgment nunc pro tunc); Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (1926) (refusal to enter judgment); Aycock v.
      Clark, 94 Tex. 375, 376–77, 60 S.W. 665, 666 (1901) (refusal to enter injunction); Screwmen’s Benevolent Ass’n v. Benson, 76
      Tex. 552, 555, 13 S.W. 379, 380 (1890) (expulsion of member from charitable corporation).
9     We recently held that a mandamus action was never required to preserve error on appeal. Pope v. Stephenson, 787 S.W.2d 953
      (Tex.1990). We explained: “The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a
      party’s right to complain on appeal.” Id. at 954.
10    Courts use a similar approach in determining whether a witness has properly invoked the Fifth Amendment privilege against
      self-incrimination. It is often impossible for a witness to prove that an answer might incriminate him without actually answering
      and thereby forfeiting the privilege. Therefore, rather than requiring actual proof of the privilege, courts sustain the privilege if
      it is “evident from the implications of the question, in the setting in which it is asked, that a responsive answer [might be
      incriminating].” Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
1     If the records have relevance apart from their potential for impeachment, however, Russell does not bar discovery. See Ex Parte
      Shepperd, 513 S.W.2d 813, 816 (Tex.1974).
1     Billie Holiday, God Bless the Child (Okeh Records 1941) (words and music by Arthur Herzog, Jr. & Billie Holiday).

2     These entities rarely need information to prevail:
           Even when an institutional litigant appears as a plaintiff suing an individual defendant as, for example, when a corporation
           sues an individual on a debt, the institutional litigant tends to already have the information needed to prove its case.
        Review of Discovery Orders at 1070 n. 162. They are also less likely to require information from an opponent to establish
        affirmative defenses. Id. at 1070.



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Walker v. Packer, 827 S.W.2d 833 (1992)


3     With no appellate opinions setting forth appropriate limitations upon trial court discretion, “litigants may receive widely
      divergent rulings from different judges, even in the same geographical location.” Id. at 1077. Proper use of mandamus
      discourages forum shopping to obtain a trial judge more likely to provide a more favorable ruling and allows for greater
      consistency and accountability:
            [Such] review ... even[s] out inconsistencies in trial court rulings, and ... allows trial judges to operate with a more accurate
            understanding of the meaning of the discovery rules.... If the appellate court is consistent, it can fix disparities and
            inequities produced by the trial courts and promote consistency among the trial level decisionmakers.
         Id. at 1047, 1077 (footnotes omitted).
4     Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court abuse in improperly limiting
      or denying discovery. See, e.g., Kentucky Fried Chicken Nat’l Mgmt. Co. v. Tennant, 782 S.W.2d 318 (Tex.App.—Houston [1st
      Dist.] 1989, orig. proceeding) (writ granted when discovery of plaintiff’s psychiatric records denied); Foster v. Heard, 757
      S.W.2d 464 (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding) (mandamus issued against trial court’s denial of discovery
      of post-accident investigation report); Super Syndicate, Ltd. v. Salazar, 762 S.W.2d 749 (Tex.App.—Houston [14th Dist.] 1988,
      orig. proceeding) (granting mandamus against trial court’s denial of discovery of claims investigator’s files); Goodspeed v.
      Street, 747 S.W.2d 526 (Tex.App.—Fort Worth 1988, orig. proceeding) (trial court’s denial of discovery of hospital records
      based on privilege without presentation of evidence overturned); Estate of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App.—
      Austin 1987, orig. proceeding) (denial of discovery of insurer’s internal communications overturned on mandamus, despite
      argument that “mandamus is proper only [for] improperly ordered discovery of privileged material, not when the trial court has
      denied discovery.”); Essex Crane Rental Corp. v. Kitzman, 723 S.W.2d 241 (Tex.App.—Houston [1st Dist.] 1986, orig.
      proceeding) (writ granted to correct trial court’s order quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, 730
      (Tex.App.—San Antonio 1985, orig. proceeding) (mandamus appropriate “not only where the trial court order improperly
      grants discovery, but the writ may also issue where the trial court improperly limits or denies discovery.”); Aztec Life lns. Co. v.
      Dellana, 667 S.W.2d 911 (Tex.App.—Austin 1984, orig. proceeding) (mandamus issued against trial court for denying
      discovery of claims files).
5     The majority identifies by name five cases in conflict with today’s writing, declaring that: “We disapprove of Barker and Allen,
      and any other authorities,” at 842, and “[we] disapprove of Cleveland, Crane, Jampole, and any other authorities,” at 842, to the
      extent they conflict with the new Walker standard. Subsumed within the “other” designation are a great number of additional
      cases from this court and the courts of appeals that would grant to the Walkers relief when the trial court has clearly abused its
      discretion in denying discovery. The court’s willingness to sweepingly erase whole unidentified categories of recent precedent
      is exemplified by their signing of a blank check: “any other authorities,” meaning all other authorities, are now endangered.
6     The few cases citing Automatic Drilling do not expand its holding to that suggested by the court today. See Jampole, 673
      S.W.2d at 574–75 (“We hold that discovery cannot be denied because of an asserted proprietary interest in the requested
      documents when a protective order would sufficiently preserve that interest.”); Firestone Photographs, Inc. v. Lamaster, 567
      S.W.2d 273, 278 (Tex.Civ.App.—Texarkana 1978, no writ) (“[T]he claim of trade secrets ... does not necessarily defeat the
      right of discovery.”).
7     James B. Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S.Tex.L.Rev. 305, 345–
      46 (1986), stating that:
           Trade secrets ... are not, per se, exempt from discovery. The trial court is obligated to weigh the need for discovery against
           the interests on secrecy.... The need to protect the confidentiality of documents does not constitute an absolute bar to
           discovery....
8     Although also citing General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983, orig. proceeding), as allowing mandamus
      relief from an allegedly burdensome trial court discovery order, the majority fails to note the very expansive discovery
      permitted in that case. The efforts of General Motors to limit discovery to results from tests performed on the particular type of
      truck and the particular type of impact involved in the subject incident were rejected, and it was directed to supply all impact
      test results for all types of trucks manufactured over a 23–year period.
9     If the trial court “refuses to make [the discovery] part of the record,” At 843, presumably the only relief accorded under today’s
      standard would be issuance of a writ directing inclusion of these materials.
10    See Caller Times Publishing Co. v. Triad Communications, 826 S.W.2d 576, 597–608 (Tex.1992) (Doggett, J., dissenting)
      (addressing court’s refusal to allow evidence of predatory intent); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d
      523, 527 (Tex.1990) (Doggett, J., dissenting); Crim Truck & Tractor Co. v. Navistar Int’l Transp. Co., 823 S.W.2d 591, 596 &
      n. 1 (Tex.1992) (Mauzy, J., dissenting); Reagan v. Vaughn, 804 S.W.2d 463, 488 (Tex.1990) (Doggett, J., concurring and
      dissenting).
11

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Walker v. Packer, 827 S.W.2d 833 (1992)



                                                           Supreme Court Filings


       Year       Mandamus                All                     Total Mandamus                         Discovery
                  Discovery               Mandamus                and Applications                       as Percentage
                  Orders                  Filings                 for Writ                               of Total


       1979                   24                     129                             933                                 2.6%

       1981                   17                     98                              943                                 1.8%

       1989                   51                     257                             1078                                4.7%

       1991                   64                     202                             1257                                5.1%




       Interlocutory Review of Discovery Orders at 1058–59; the 1989 and 1991 figures are derived from my review of court filings.




End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 19
Wood v. Tice, 988 S.W.2d 829 (1999)




                                                               satisfied the statute with an expert’s deposition transcript.
                                                               Alternatively, Wood maintains the trial court abused its
                   988 S.W.2d 829
               Court of Appeals of Texas,                      discretion by denying him an extension of time to file an
                     San Antonio.                              expert report. Finding no error, we affirm.

             Neale WOOD, Appellant,
                        v.
  Diane TICE, D.D.S.; Barry Solomon, D.D.S.; and
                                                                                      Background
    Dental Centers of America, L.L.C., also doing
   business as Windsor Dental Center, Appellees.               On November 1, 1996, Wood sued Diane Tice, Andre
                                                               Smith, Barry Solomon, and Dental Centers of America,
       No. 04–98–00392–CV. | Feb. 17, 1999.
                                                               L.L.C. for negligent treatment of a chipped tooth. In
Patient sued dentists and dental clinic for malpractice.       March 1997, Wood took Dr. Smith’s deposition, which
The 57th Judicial District Court, Bexar County, Peter          was transcribed and distributed to Drs. Tice, Smith, and
Michael Curry, J., dismissed action, and patient appealed.     Solomon on April 17, 1997. Dental Centers did not
The Court of Appeals, Green, J., held that: (1) patient’s      receive a copy of the deposition.
failure to timely provide dental clinic with copy of
deposition warranted dismissal of clinic; (2) deposition       In January 1998, the defendants moved to dismiss the
testimony of one of dentists being sued failed to satisfy      case based on Wood’s failure to provide an expert’s
the Medical Liability Act’s requirement of an expert           report. See TEX.REV.CIV. STAT. ANN. art. 4590i, §
report; (3) finding that patient was not entitled to 30–day    13.01(d–e) (Vernon Supp.1998) (“Medical Liability
grace period in which to file expert report was supported      Act”). In response, Wood filed a motion for extension of
by evidence; and (4) patient was not entitled to new trial     time to file an expert report, which included an affidavit
in order to file expert report.                                indicating his belief that Dr. Smith’s deposition satisfied
                                                               the statute. On January 16, the trial court orally granted a
Affirmed.                                                      dismissal with prejudice. Its order, however, was not
                                                               signed until March 10.
*829 From the 57th Judicial District Court, Bexar County,
Texas Trial *830 Court No. 98–CI–03977 Honorable               On April 23, Wood moved for a new trial, arguing he did
Peter Michael Curry, Judge Presiding.1                         not learn about the signed order until April 15. See
                                                               TEX.R.APP. P. 304a(4–5). He also urged the court to
Attorneys and Law Firms                                        grant him an extension of time to file an expert report.
                                                               The trial court denied the motion for new trial, finding it
Randy Gathany, David W. Rogers, Law Offices of Dave            had no jurisdiction. The court also denied Wood’s motion
Rogers, Inc., San Antonio, for Appellant.                      to reconsider.2 Despite Wood’s lack of notice, he timely
                                                               perfected this appeal.
Todd A. Prins, Stanley E. Faye, Edward C. Mainz, Jr.,
Robert B. Biechlin, Jr., Thornton, Summers, Biechlin,
Dunham & Brown, L.C., San Antonio, for Appellee.

Before CATHERINE STONE, Justice, PAUL W.                             Compliance with the Medical Liability Act
GREEN, Justice, KAREN ANGELINI, Justice.
                                                               Wood claims he satisfied the Medical Liability Act with a
                                                               copy of Dr. Smith’s deposition. In contrast, the
                                                               defendants contend the deposition is too “generalized and
                                                               speculative” to satisfy the statute’s requirement of an
                                                               expert report. We agree with the defendants.
                        OPINION
                                                               We review the trial court’s dismissal order with the abuse
PAUL W. GREEN, Justice.                                        of discretion standard. See Pony Express Courier Corp. v.
                                                               Morris, 921 S.W.2d 817, 820 (Tex.App.—San Antonio
Neale Wood appeals an order dismissing his suit for
                                                               1996, no writ). In applying this standard, we defer to the
failing to file an expert report under the Medical Liability
                                                               trial court’s factual determinations but review questions
and Insurance Improvement Act. Wood contends he
                                                               of law de novo. Id.; see also Johnson v. City of Fort
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Wood v. Tice, 988 S.W.2d 829 (1999)



Worth, 774 S.W.2d 653, 656 (Tex.1989) (describing                    Q. So when a patient comes in with any type of a
statutory construction as question of law).                          complaint, you should take an x-ray, no matter what?
[1]                                                                  A. Yes.
    The legislature enacted the Medical Liability Act to
curtail frivolous claims against physicians and other
health care providers. Horsley–Layman v. Angeles, 968                Q. Okay. And would it be below the minimum
S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.).                  accepted standard of care to fail to take that x-ray?
To that end, section 13.01 requires a plaintiff to provide
each defendant with one or more expert reports relating to           A. Yes.
liability and causation. See TEX.REV.CIV. STAT. ANN.
                                                                     ...
art. 4590i, § 13.01(i–j) (Vernon Supp.1998); HOUSE
COMM. ON CIVIL PRACTICES, BILL ANALYSIS,                             Q. If it turns out that there was an x-ray that was
Tex. H.B. 971, 74th Leg., R.S. (1995). The expert report             taken, and for some reason was not shown in here,
must be “furnish[ed],” together with a curriculum vitae,             and that this x-ray appeared somewhere in the future
no later than 180 days after suit is filed. TEX.REV.CIV.             and it showed that there had been an infection in it,
STAT. ANN. art. 4590i, § 13.01(d) (Vernon Supp.1998).                would it have been—infection in Tooth No. 12,
If the plaintiff fails to timely provide the report, the trial       would it have been below the minimum standard of
court “shall, on *831 the motion of the affected physician           care to put this miracle mix on there anyway? ...
or health care provider, enter an order” dismissing the suit
with prejudice. Id. § 13.01(e).3                                     A. Yes, sir.
[2]
   The statute defines “expert report” as a “written report      The deposition also includes the following information
by an expert that provides a fair summary of the expert’s        about Dr. Tice’s potential liability:
opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered             Q. Would you, going back to the reference to the
by the physician or health care provider failed to meet the          reasonably prudent dentist, would you consider that
standards, and the causal relationship between that failure          it would be below a minimum standard of care for a
and the injury, harm, or damages claimed.” Id. §                     dentist to start a root canal that soon after the
13.01(r)(6). The report must specifically refer to the               procedures that are described for November 5th of
defendant and discuss how that defendant breached the                1994?
applicable standard of care. See Horsley–Layman, 968
S.W.2d at 535; cf. TEX.REV.CIV. STAT. ANN. art.                      ...
4590i, § 13.01(l ) (Vernon Supp.1998) (requiring good
faith effort to comply with the definition of expert report).        A. I don’t think any reasonable and prudent dentist
                                                                     would.
[3]
   Wood filed suit on November 1, 1996. His expert’s
report was due April 30, 1997. On April 17, the individual       At the dismissal hearing, Wood claimed the following
defendants received copies of Dr. Smith’s deposition, but        excerpt discussed Dr. Solomon’s liability:
Wood neither provided Dental Centers with a copy nor
did he indicate he would rely on the deposition as an                Q. When you—so what type of guidelines were
expert report. Because Dental Centers is a health care               established with them for the means whereby you did
provider entitled to receive a report, the trial court did not       various procedures?
abuse its discretion in dismissing Wood’s claim against
that defendant. See TEX.REV.CIV. STAT. ANN. art.                     A. There were really no guidelines except for self-
                                                                     imposed guidelines.
4590i, § 1.03(a)(3) (Vernon Supp.1998) (defining health
care provider as a professional association providing
                                                                     Q. So if a dentist chose to on an individual basis, was
dental services); see also id. § 13.01(d–e).
                                                                     there anybody overseeing that dentist [sic]—the
[4]                                                                  quality of that dentist’s work?
   To determine whether the trial court properly dismissed
the remaining defendants, we must evaluate whether Dr.               A. No, sir.
Smith’s deposition satisfies the definition of an “expert
report.” At the dismissal hearing, Wood argued the               The deposition testimony fails to mention the defendants
following excerpt satisfied the definition by establishing       by name, fails to specify how *832 the defendants
the liability of Dr. Tice:                                       breached the standard of care, and fails to demonstrate
                                                                 causation and damages. Furthermore, there is no
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   2
Wood v. Tice, 988 S.W.2d 829 (1999)



indication the deposition included a copy of Dr. Smith’s                    Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133
curriculum vitae. Therefore, as a matter of law, Dr.                        S.W.2d 124, 126 (1939)).
Smith’s deposition does not satisfy the Medical Liability
Act’s requirement of an expert report. Accordingly, the                     Wood filed his motion for extension of time on the day
trial court did not abuse its discretion in dismissing                      the trial court heard the defendants’ motion to dismiss. In
Wood’s claims against the remaining defendants.                             his motion, Wood alleged “he had a good faith belief that
                                                                            the deposition constituted an expert report.” Responding
                                                                            to this assertion during the hearing, counsel David Coates
                                                                            said he discussed the absence of an expert report with
                                                                            plaintiff’s counsel, Randy Gathany, in December 1997.
                          Grace Period                                      According to Coates, Gathany never indicated reliance on
[5]                                                                         Dr. Smith’s deposition until the day of the hearing. In
   Wood argues the trial court erred by denying him a                       contrast, Gathany said he “believe[d]” he “mentioned the
thirty-day grace period under section 13.01(g) of the                       deposition.”5 Because the evidence of Wood’s reliance
Medical Liability Act. We disagree.4                                        was conflicting, we cannot say the trial court abused its
                                                                            discretion in denying Wood an extension of time. See
We review the trial court’s decision with the abuse of                      Estrello, 965 S.W.2d at 758 (finding no abuse of
discretion standard. Estrello, 965 S.W.2d at 758. We                        discretion when evidence conflicted). Contra Horsley–
further note the trial court does not abuse its discretion                  Layman, 968 S.W.2d at 536–37 (finding that statement of
when it bases its decision on conflicting evidence. Id.                     belief was not controverted).
[6]
      Section 13.01(g) provides:                                            [7]
                                                                                In his motion for new trial, Wood also requested an
                                                                            extension of time to file an expert report. He contends the
               Notwithstanding        any      other                        trial court erred in finding it had no jurisdiction over the
               provision of this section, if a                              motion. The trial court’s ruling, however, is irrelevant
               claimant has failed to comply with                           because the motion for new trial was unnecessary in light
               a     deadline     established      by                       of Wood’s previous request for an extension of time. Cf.
               Subsection (d) of this section and                           TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g)
               after hearing the court finds that the                       (Vernon Supp.1998) (noting section 13.01(g) may be
               failure of the claimant or the                               invoked before dismissal under section 13.01(e));
               claimant’s attorney was not                                  McClure, 959 S.W.2d at 682 (demonstrating section
               intentional or the result of                                 13.01(g) may be invoked after dismissal under section
               conscious indifference but was the                           13.01(e)). Additionally, Wood’s motion for new trial
               result of an accident or mistake, the                        offered no new evidence regarding his lack of intentional
               court shall grant a grace period of                          or conscious indifference. Instead, it was limited to new
               30 days to permit the claimant to                            allegations that *833 he did not timely receive notice of
               comply with that subsection. A                               the dismissal order.6 Despite this lack of notice, Wood
               motion by a claimant for relief                              timely perfected his appeal. Thus, Wood’s complaint is
               under this subsection shall be                               without merit.
               considered timely if it is filed
               before any hearing on a motion by
               a defendant under Subsection (e) of
               this section.
                                                                                                    Conclusion
TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g)
(Vernon Supp.1998) (emphasis added). Proof of accident                      We affirm the trial court’s dismissal order.
or mistake must establish “some” excuse, not necessarily
a “good” excuse. McClure v. Landis, 959 S.W.2d 679,
681 (Tex.App.—Austin 1997, pet. denied) (applying

Footnotes
1         The Honorable Peter Michael Curry signed the appealable order, but the Honorable Martha Tanner presided at the hearing.

2         Technically, the motions should have been dismissed for lack of jurisdiction.

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Wood v. Tice, 988 S.W.2d 829 (1999)



3     The Medical Liability Act also permits dismissal if the plaintiff fails to “file” either a cash deposit, cost bond, or expert report
      90 days after suit is filed. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(a–b) (Vernon Supp.1998). This provision was not
      raised by the defendants in the trial court.
4     This case does not involve any other extensions of time permitted by the Medical Liability Act. See, e.g., TEX.REV.CIV.
      STAT. ANN. art. 4590i, § 13.01(h) (Vernon Supp.1998) (extending 180–day period by agreement); id. § 13.01(f) (extending
      180–day period by court order); cf. Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.—Fort Worth 1998, no pet.) (suggesting
      a § 13.01(f) extension must be requested by the plaintiff and granted by the court within 30 days of the date the 180–day period
      ends).
5     Neither attorney objected to the unsworn testimony. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (finding unsworn
      attorney testimony to be evidence in the absence of an objection).
6     In contrast, the defendants offered additional evidence that Gathany told Coates in their December conversation that “the courts
      never dismiss a case for failing to file an expert’s report.”




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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           4
