
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


ON MOTION FOR RECONSIDERATION EN BANC



NO. 03-05-00454-CV


Cecelia Ledesma, Appellant

v.

George L. Shashoua, M.D.; Oakwood Women's Cenre, P.A. at Round Rock;
Joseph Eddings; B. Johns, CRNA; and Round Rock Medical Center, Appellees




FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 05-489-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING


D I S S E N T I N G   O P I N I O N
		The expert-report requirement found in section 74.351 of the civil practice and
remedies code was enacted as a gate-keeping measure, intended to weed out frivolous claims and
encourage expert screening to ensure that a viable cause of action exists before the parties expend
substantial time and effort in litigation.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351
(West Supp. 2007); Sellers v. Foster, 199 S.W.3d 385, 398 (Tex. App.--Fort Worth 2006, no pet.)
(statute enacted to "curtail frivolous claims against physicians and related health care providers");
Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex. App.--Texarkana 1998, no pet.) (expert-report requirement created "to address the perceived problem that litigants were filing unmeritorious
claims against medical practitioners which were not adequately investigated in a timely manner"). 
The present case, however, involves Cecelia Ledesma entering the hospital for surgery on her
appendix and an ovary, only to leave the hospital less than 24 hours later with permanent damage
and paralysis in her left arm, hand, and wrist--an area where there had been no prior injury.  It would
seem that Ledesma's suit is hardly the type of claim that the statute was intended to prevent.  
		Expert reports serve the dual purposes of giving notice to the medical providers of
the basis for the claim and providing a basis for the trial court to conclude that the claims have merit.
 See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). 
Section 74.351(r)(6) merely requires a summary of the expert's opinions "as of the date of the
report," rather than a full-blown analysis of the claim that could only be completed after full
discovery.  See Palacios, 46 S.W.3d at 879 ("[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 the evidence offered in a summary-judgment
proceeding or at trial."). 
		Section 74.351(c) authorizes the trial court to grant a 30-day extension of time for a
claimant to cure any deficiencies in her expert reports.  See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(c).  The majority holds that the trial court did not err in denying Ledesma's request for an
extension under section 74.351(c).  While the trial court's decision whether to grant such an
extension is discretionary, Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.--Austin
2007, no pet.), I would hold that the trial court abused its discretion in denying Ledesma's request
for extension.  
		A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner
or acts without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241 (Tex. 1985).  The trial court in the present case gave no indication why
Ledesma's request for an extension under 74.351(c) was denied, thus providing no reasonable
measure by which this Court could confirm that the decision was not arbitrary or capricious.  While
the trial court has discretion in deciding whether to grant an extension under 74.351(c), Austin Heart,
228 S.W.3d at 279, there must also be some meaningful review for the abuse of such discretion.  An
abuse of discretion does not exist as long as there is "some evidence of a substantive and probative
character to support the trial court's decision."  Hart v. Wright, 16 S.W.3d 872, 875
(Tex. App.--Fort Worth 2000, pet. denied).  Significantly, no such evidence has been provided in
the present case.  There appears to be no basis in the record for the trial court's refusal to grant
Ledesma's timely request for the statutorily authorized extension of time. 	
		In deciding whether a trial court abused its discretion in denying a motion for
continuance seeking additional time to conduct discovery--a situation analogous to Ledesma's
request for an extension, which was based on her difficulties in conducting discovery--the
Texas Supreme Court has considered factors such as the length of time the case has been on file, the
materiality and purpose of the discovery sought, and whether the party seeking the continuance has
exercised due diligence to obtain the discovery sought.  See Joe v. Two Thirty Nine Joint Venture,
145 S.W.2d 150, 161 (Tex. 2004).
		Ledesma filed suit on January 12, 2004, and requested an extension of time for filing
expert reports for the first time on April 29, 2004, noting that she anticipated delays in obtaining
sufficient reports due to ongoing discovery disputes.  Ledesma repeated her request for an extension
of time on July 13, 2004, again emphasizing problems with discovery.  The record does not indicate
any undue delay by Ledesma in requesting her extension of time that would give the trial court
reason to deny her request.  
		The parties' discovery disputes were based on Ledesma's request that she be allowed
to depose two nurses who were involved in the surgery, in order to ascertain the actual events that
took place during the procedure.  Without knowing what actually happened during Ledesma's
surgery, her experts were at a distinct disadvantage in preparing their reports, particularly in opining
on how Bruce Johns's actions deviated from the standard of care or the causal link between Johns's
actions and the injury.  Ledesma's inability to obtain the requested discovery may have prevented
her from acquiring additional material information that she could have used to address any alleged
deficiencies in her expert reports prior to the statutory deadline.  
		Furthermore, it appears that Ledesma exercised due diligence in attempting to obtain
sufficient expert reports.  She served two expert reports listing Johns by name--one of which was
written by an accomplished anesthesiologist from Cornell University--each containing a significant
amount of detail in light of the fact that she was forced to proceed with extremely limited
information due to the ongoing discovery disputes.   In fact, the trial court apparently had no problem
with the content of the reports with respect to Dr. Joseph Eddings, the anesthesiologist assigned to
Ledesma's surgery, as it found that the reports were sufficient under section 74.351 as to Eddings. 
		It is hard to fathom why the trial court found that Ledesma's expert reports were
insufficient as to Johns, while simultaneously finding that they were sufficient as to Eddings.  In the
same order granting Johns's motion to dismiss on the basis of section 74.351, the trial court denied
Eddings's motion to dismiss on the same grounds.  The trial court provided no explanation for this
distinction, nor is a reasonable explanation readily apparent from the record.  Dr. Dinner's report
references the duty and standard of care of "[t]he anesthesia team consisting of Dr. Joseph Eddings
and Bruce Johns CRNA" and makes no distinction between Eddings or Johns at any point during
the report.  Dr. Hamilton's report states that it was the negligence of the surgeons "along with that
of Dr. Joseph Eddings MD, the anestheologist [sic], and Bruce Johns, Certified Registered Nurse
Anesthetist, that produced a severe inexcusable injury" to Ledesma's radial nerve.  Dr. Hamilton's
report does not distinguish the conduct or standard of care applicable to Eddings from that applicable
to Johns.  See In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405 (Tex. App.--Amarillo 2006, no pet.)
(holding that where same standard of care applied to both physician and physician assistant, expert
report need not separately set forth standard of care applicable to physician assistant). (1) 
		The Texas Supreme Court has allowed anesthesiologists to testify as experts as to the
standard of care required of nurse anesthetists.  See Webb v. Jorns, 488 S.W.2d 407, 410-11
(Tex. 1972). (2)  Yet in the present case, the trial court inexplicably determined that the expert reports
were inadequate as to Johns, but adequate as to Eddings.  Significantly, the trial court dismissed only
the claim against Johns as a result of the expert reports, leaving intact the claims against the medical
center, the surgeon who performed the procedure, and Eddings.  The trial court's conclusion that
only the claim against Johns was subject to dismissal serves to reinforce the notion that this was not
the type of frivolous claim that the expert-report requirement was meant to prevent.	
		As this Court has previously noted, the purpose of the 30-day extension provided in
section 74.351(c) is to allow a party to correct defects in a timely filed expert report.  See
Austin Heart, 228 S.W.3d at 278 ("[W]e are of the view that the cure provisions of section 74.351(c)
are designed to allow the plaintiffs an opportunity to address and correct the defect."). (3)  The intent
behind this extension is analogous to the purpose of special exceptions to civil pleadings, which is
to "compel clarification of pleadings when the pleadings are not clear or sufficiently specific or fail
to plead a cause of action."  See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). 
When a trial court sustains special exceptions, it must give the pleader an opportunity to amend the
pleading, unless the defect cannot be cured.  Id.  The expert-report requirement and the extension
allowed by section 74.351(c), much like the concept of special exceptions and the opportunity to
amend pleadings, should be used as procedural tools to help clarify the issues in complex litigation,
rather than as a statutory trap for the unwary in what might otherwise be a meritorious claim.  
		As a result, I would hold that the trial court acted in an arbitrary and unreasonable
manner by denying  Ledesma an extension of time to correct her expert reports, where no reasonable
grounds for denial are apparent and when it is clear that she exercised due diligence in attempting
to obtain sufficient reports and repeatedly asking for notice and time to cure any deficiencies in the
event that the court determined the reports were insufficient.  While the majority points to the fact
that Ledesma has not preserved any complaints on appeal regarding discovery, such preservation of
error is not necessary in order for this Court to review the record for evidence of Ledesma's due
diligence in attempting to obtain sufficient reports.  In any case, one wonders whether the parties'
discovery disputes could have been resolved more efficiently if Ledesma had been afforded the 30-day extension contemplated in section 74.351(c).  
		Because I would hold that, in light of the circumstances, the trial court abused its
discretion in failing to grant an extension of time under section 74.351(c), I respectfully dissent.
  
						Diane Henson, Justice
Filed:   May 23, 2008
1.   Nurse anesthetists and physician assistants are treated similarly by the occupations code. 
See Tex. Occ. Code Ann. §§ 157.051-.060 (West 2004 & Supp. 2007) (subchapter entitled
"Delegation to Advanced Practice Nurses and Physician Assistants"); see also id. § 301.152
(West 2004) (defining "advance practice nurse" to include nurse anesthetists).
2.   A physician is not disqualified from offering an opinion regarding nursing care simply
because he is a physician, rather than a nurse.  See Manor Care Health Servs., Inc. v. Ragan,
187 S.W.3d 556, 562 (Tex. App.--Houston [14th Dist.] 2006, pet. granted, judgm't vacated w.r.m.)
(physician need not have nursing experience to offer expert opinion regarding nursing care);
Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App.--Texarkana 1997, pet. denied) ("Various jurisdictions,
including Texas, that have addressed the issue of whether a physician is qualified to render expert
testimony as to nursing standards of care have found physicians to be qualified.").
3.   As Justice Willett suggests in his concurring opinion in Ogletree v. Matthews, No. 06-0502,
2007 Tex. LEXIS 1028 (Tex. Nov. 30, 2007) (Willett, J., concurring), parties using the 30-day
extension are not limited to merely making changes to an existing deficient report, but may actually
substitute a different expert, and therefore an entirely new report.  See id. at *18 ("[D]esignating the
wrong type of medical professionals to opine on standard of care[] is the type of defect for which a
trial court may grant a discretionary section 74.351(c) extension.").
