      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00601-CV



              Austin Regional Clinic, P.A. and Steve Wilkins, M.D., Appellants

                                                 v.

                                      Sean Power, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
        NO. D-1-GN-11–000881, HONORABLE TIM SULAK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Austin Regional Clinic, P.A. (“ARC”) and Steve Wilkins, M.D., bring this

interlocutory appeal challenging the trial court’s denial of their motion to dismiss appellee

Sean Power’s health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9)

(West Supp. 2011). Power brought direct liability claims against ARC and Wilkins, as well as

vicarious liability claims against ARC. After Power served an expert report, ARC and Wilkins

objected to the report and moved to dismiss. See id. § 74.351(b) (West 2011). The trial court denied

their motion to dismiss and granted Power a thirty-day extension to cure deficiencies in the expert

report. See id. § 74.351(c) (West 2011).

               In five issues, appellants contend that the expert who authored the report was not

qualified to give an opinion on the applicable standards of care and on causation, and they challenge

the report itself as to the direct liability claims against ARC. Appellants contend that the “expert
report at issue is the legal equivalent of ‘no report’” as to those claims. See Scoresby v. Santillan,

346 S.W.3d 546, 556 (Tex. 2011). Alternatively, they contend that Power judicially abandoned his

direct liability claims against ARC during the hearing on appellants’ motion to dismiss.

                For the reasons that follow, we dismiss this appeal for want of jurisdiction to the

extent appellants challenge the trial court’s denial of their motion to dismiss Power’s claims based

upon the qualifications of the expert report’s author. We reverse the trial court’s order, however, to

the extent the trial court denied appellants’ motion to dismiss the direct liability claims against ARC.

We remand the case to the trial court with instructions to dismiss the direct liability claims against

ARC and to consider ARC’s request for attorney’s fees and costs pursuant to section 74.351(b) of

the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).1


                                           BACKGROUND

                 On February 22, 2009, Wilkins, who is a physician, treated Power at an ARC

after-hour clinic for a wrist injury. Power did not receive additional treatment for his injury until late

March 2009. At that time, he saw an orthopedic surgeon who diagnosed a wrist fracture and,

approximately one month later, performed surgery to treat the fracture.

                Power filed suit in March 2011 against ARC and Wilkins, as well as the orthopedic

surgeon and other defendants, asserting health care liability claims arising from the care and




        1
           Also pending before the Court is appellants’ opposed motion to deem appellants’ recited
facts as true, for rebriefing by Power, and to strike exhibits. We grant the motion to the extent it
requests this Court to disregard evidence that was not before the trial court. See Cantu v. Horany,
195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.) (appellate courts generally cannot consider
documents that are not properly included in record). We deny all other requests in the motion.

                                                    2
treatment of his wrist injury.2 See id. § 74.001(a)(13) (West Supp. 2011) (defining “health care

liability claim”). As to ARC and Wilkins, Power alleged that they were negligent by failing to

properly diagnose, inform, or treat his injury.

                Within 120 days of filing suit, Power served appellants with an expert report, along

with the authoring expert’s curriculum vitae. See id. § 74.351(a) (West 2011). The expert, a board

certified orthopedic surgeon, identified Wilkins as the physician who initially saw and treated Power

at ARC. The expert noted that Wilkins obtained x-rays of Power’s left wrist and stated “no acute

changes seen.” The expert addressed the standard of care and summarized his conclusions, stating

in relevant part:


        In any case the standard of care would be prompt follow-up by a family physician or
        orthopedic surgeon. The patient should be notified that he/she needs follow-up
        evaluation. Furthermore the standard of care would dictate that the radiologist read
        these films within 24-48 hours and notify a treating physician of the presence of a
        fracture. Standard of care would indicate that this fracture should have been
        immobilized promptly after injury which would most likely have resulted in fracture
        healing without surgical intervention and possible complications of surgery.


        ***

        There was a delay in diagnosis which resulted in a delay of appropriate treatment
        (immobilization). This resulted in a surgical intervention. Early intervention
        (prompt immobilization after injury) would probably have avoided the need for
        surgery.




        2
          The orthopedic surgeon is one of the defendants in the underlying suit. The surgeon did
not challenge the expert report at issue and is not a party to this appeal.

                                                  3
The expert’s curriculum vitae shows that he began practicing medicine in 1973 and continued to do

so at the time he prepared the expert report. His practice experience included emergency medicine

from 1973 to 1977 and then orthopedic surgery after 1977.

                Wilkins and ARC filed objections to the expert report and sought dismissal under

section 74.351 of the civil practice and remedies code. See id. § 74.351(b). They urged that the

report was so deficient that Power had failed to serve an expert report at all within the 120-day

deadline and, therefore, that Power’s claims against them should be dismissed. Their objections to

the report included challenges to its author’s qualifications. See id. §§ 74.401 (qualification of expert

witness in suit against physician), .402 (qualification of expert witness in suit against health care

provider), .403 (qualification of expert witness on causation) (West 2011). They also challenged the

adequacy of the report itself, contending that the report failed “to address the required elements of

standard of care, breach and causation in the manner statutorily and judicially required.” They

objected to the “speculative opinions” in the report and the report’s “failure to identify [Wilkins] by

name and correlate each of the report elements to each of [his] alleged acts or omissions.”

                The trial court held a hearing on appellants’ objections and motion to dismiss. At the

hearing, the trial court did not consider additional expert reports that Power served on appellants after

the 120-day deadline for serving expert reports. See id. § 74.351(a). The trial court also did not

consider appellants’ supplemental objections and motion to dismiss as to the additional expert reports.

After the hearing, the trial court denied appellants’ motion to dismiss as to the expert report served

within the 120-day deadline and granted Power a thirty-day extension to cure deficiencies in the




                                                   4
report. See id. § 74.351(c). Appellants’ supplemental objections and motion to dismiss as to the

additional expert reports remain pending with the trial court. This appeal followed.


                                               ANALYSIS

                Under chapter 74 of the civil practice and remedies code, a claimant asserting health

care liability claims is required as a threshold matter to serve an expert report with a curriculum vitae

by the 120th day after the original petition is filed for each physician named in the suit. See id.

§ 74.351(a). Section 74.351(r)(6) defines an expert report as follows:


        a written report by an expert that provides a fair summary of the expert’s opinions as
        of the date of the report regarding applicable standards of care, the manner in which
        the care rendered by the physician or health care provider failed to meet the
        standards, and the causal relationship between that failure and the injury, harm, or
        damages claimed.


Id. § 74.351(r)(6). The expert report is not meant for the trier of fact. See id. § 74.351(k) (expert

report generally not admissible and parties may not refer to it “during the course of the action for any

purpose”). Its purpose is “to deter frivolous claims.” Scoresby, 346 S.W.3d at 554. “The report is

intended to inform the defendant of the specific conduct that the claimant has called into question

and provide a basis for the trial court to conclude that the claims have merit.” Fung v. Fischer,

__ S.W.3d __, No. 03-10-00298-CV, 2012 Tex. App. LEXIS 2956, at *10 (Tex. App.—Austin

Apr. 13, 2012, no pet.) (citations omitted).

                A defendant whose conduct is implicated in an expert report may file objections to the

report’s sufficiency. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). A trial court, however,

should not grant a motion challenging the adequacy of an expert report unless “it appears to the court,

                                                   5
after hearing, that the report does not represent an objective good faith effort to comply with the

definition of an expert report in Subsection (r)(6).” Id. § 74.351(l). When a report is served within

the 120-day deadline but found by the trial court to be deficient, the trial court may grant one

thirty-day extension to cure deficiencies in the report. Id. § 74.351(c).

               When a trial court “denies all or part of the relief sought by a motion under Section

74.351(b),” the defendant physician or health care provider may bring an interlocutory appeal from

the order. Id. § 51.014(a)(9). But appellate courts lack jurisdiction over an interlocutory appeal of

the denial of a motion to dismiss when a claimant timely serves a “deficient” report—as opposed to

“no report”—and the trial court grants a thirty-day extension. Scoresby, 346 S.W.3d at 555; see Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (interlocutory appeal “may not be taken from an order

granting an extension under Section 74.351”). The supreme court has recognized the logic and

practicality of prohibiting an appeal when the trial court has granted a thirty-day extension:


       This prohibition is both logical and practical. . . . If a defendant could immediately
       (and prematurely) appeal, the court of appeals would address the report’s sufficiency
       while its deficiencies were presumably being cured at the trial court level, an illogical
       and wasteful result. Moreover, because the Legislature authorized a single, thirty-day
       extension for deficient reports, health care providers face only a minimal delay before
       a report’s sufficiency may again be challenged and the case dismissed, if warranted.


Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007).

               We review a trial court’s ruling on a motion to dismiss brought under section

74.351(b) for an abuse of discretion. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011);

American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001). A

trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or when it acts

                                                  6
without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.

2003). With this background, we turn to appellants’ issues.


Qualifications of Expert Report’s Author

                In their first, second, and fourth issues, appellants challenge the qualifications of the

expert report’s author, contending that he was not qualified to give an opinion on the standard of care

applicable to Wilkins or ARC or on causation as to ARC and, therefore, that the trial court abused

its discretion by denying their motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann.

§§ 74.401–.403.

                Appellants urge that this Court should begin its analysis with the statutory provisions

addressing qualification of expert witnesses, see id., and Texas common law addressing when

physicians from different medical fields are qualified to testify against one another in medical

malpractice cases. See Broders v. Heise, 924 S.W.2d 148, 152–53 (Tex. 1996) (noting that “there is

no validity, if there ever was, to the notion that every licensed medical doctor should be automatically

qualified to testify as an expert on every medical question”). Against this backdrop, they urge that

Power’s “expert, a board certified specialist, does not have the required knowledge, training,

experience or education required to give an opinion critical of a more generalized family practice

physician or of a health care provider whose facilities and staffing are alleged to be inadequate for

treating a medical condition such as [Power]’s.”

                The supreme court’s analysis in Scoresby informs our decision here. Similar to the

procedural posture in this case, the defendant surgeons appealed the trial court’s denial of their motion

to dismiss brought under section 74.351. Scoresby, 346 S.W.3d at 551. The plaintiff filed an expert

                                                   7
report within the 120-day deadline, but the defendant surgeons objected to the report and argued in

their motion that it “was too inadequate to qualify as an expert report.” Id. Among the objections

that they made, the defendant surgeons asserted that the expert, who was a neurologist, “[was] not

qualified to testify regarding the standard of care for an ENT surgeon in performing the procedures”

at issue. Id. The trial court denied their motion and granted a thirty-day extension to cure

deficiencies in the expert report. Id. While the appeal was pending, the defendant surgeons objected

to an amended report filed by the plaintiff after the 120-day deadline and moved again for dismissal

with the trial court. Id. at 552. The objections and motion to dismiss as to the amended report

remained pending with the trial court during the appeal. Id.

                In that case, the supreme court affirmed the court of appeal’s decision that dismissed

the interlocutory appeal for want of jurisdiction. Id. at 558. Upholding the trial court’s order, the

supreme court concluded that “[a]ll deficiencies, whether in the expert’s opinions or qualifications,

are subject to being cured before an appeal may be taken from the trial court’s refusal to dismiss the

case.” Id. at 557. The court explained:


        An individual’s lack of relevant qualifications and an opinion’s inadequacies are
        deficiencies the plaintiff should be given an opportunity to cure if it is possible to do
        so. This lenient standard avoids the expense and delay of multiple interlocutory
        appeals and assures a claimant a fair opportunity to demonstrate that his claim is
        not frivolous.


Id. at 549.

                Focusing on the Act’s goal of deterring frivolous claims, the supreme court directed

trial courts to “be lenient in granting thirty day extensions” and to grant an extension “if deficiencies



                                                   8
in an expert report can be cured within the thirty-day period.” Id. at 554; see id. at 556 (“An

inadequate expert report does not indicate a frivolous claim if the report’s deficiencies are readily

curable.”). The supreme court also set forth the “minimal” standard for granting a thirty-day

extension: that a trial court may grant an extension “if the report is served by the statutory deadline,

if it contains the opinion of an individual with expertise that the claim has merit, and if the

defendant’s conduct is implicated.” Id. at 557.

               Applying this standard here, the expert report at issue was filed within the 120-day

deadline and implicated the conduct of Wilkins. Appellants also do not dispute that Wilkins was

ARC’s agent acting within the course and scope of his employment while he was treating Power. See

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (“Under the doctrine of

respondeat superior, an employer is vicariously liable for the negligence of an agent or employee

acting within the scope of his or her agency or employment, although the principal or employer has

not personally committed a wrong.” (citations omitted)). The only remaining inquiry then is whether

the expert report’s author was an “individual with expertise” that Power’s claims have merit. See

Scoresby, 346 S.W.3d at 557.

               The trial court would not have abused its discretion by concluding that a board

certified orthopedic surgeon with nearly forty years of experience, including practicing emergency

medicine, was an “individual with expertise” to opine about the merit of claims arising from the

alleged failure to diagnose and treat a bone fracture. See id. Following the supreme court’s directive

in Scoresby, we conclude that the trial court did not abuse its discretion by denying appellants’ motion

to dismiss to the extent the motion was based upon the qualifications of the expert report’s author.



                                                   9
                Given that the trial court granted a thirty-day extension, we also conclude that we do

not have jurisdiction to further consider appellants’ issues challenging the author’s qualifications.

Id. (declining to express its “view on the adequacy of [the expert]’s qualifications; the trial court did

not specifically address the matter” and concluding that “premature . . . to consider it”); see also Tex.

Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (interlocutory appeal from thirty-day extension not

allowed); Seastruck v. Meza, No. 04-10-00840-CV, 2011 Tex. App. LEXIS 6193, at *8–9 (Tex.

App.—San Antonio Aug. 10, 2011, no pet.) (mem. op.) (dismissing for want of jurisdiction appeal

of trial court’s denial of motion to dismiss and grant of a thirty-day extension to cure because expert

reports “merely deficient as opposed to ‘no reports’ for which a thirty-day extension was

not available”).3


Direct Liability Claims Against ARC

                In their third and fifth issues, appellants challenge the trial court’s refusal to dismiss

Power’s direct liability claims against ARC. They contend that Power judicially abandoned his direct

liability claims against ARC during the hearing before the trial court on their motion or, alternatively,

that the trial court abused its discretion by denying their motion to dismiss because the “expert report

at issue is the legal equivalent of ‘no report’” as to the direct liability claims against ARC.




        3
             Appellants argue in their brief that the adequacy of the expert’s qualifications was
 “precisely the question that [the trial court] was asked to rule upon” and, therefore, that the question
 is ripe for this Court’s review. Although appellants argued at the hearing before the trial court and
 in their motion that the expert was not qualified, they also argued that the report itself was
 “inadequate/no report,” and the trial court did not express its opinion as to the adequacy of the report
 or the expert’s qualifications at the hearing and its order does not state the basis for its ruling.

                                                   10
                This Court addressed the issue of direct versus vicarious liability claims asserted

against health care providers in Fung. __ S.W.3d at __, 2012 Tex. App. LEXIS 2956, at *32–38. In

that case, we found that the expert report at issue was adequate as to the vicarious liability claims

asserted against the health care provider but that the trial court should have dismissed the direct

liability claims against the provider because the report failed to address those claims. Id. at *37–38.

In reaching our conclusion, we noted that the facts required to establish a health care provider’s

vicarious liability, “i.e., the acts of [the physician and the physician]’s relationship” to the health care

provider, differ from the facts required to establish the health care provider’s direct liability, “i.e., [the

provider]’s provision of particular policies and procedures.” Id. at *30. We further explained:


        Under the doctrine of respondeat superior, an employer or principal may be
        vicariously liable for the tortious acts of an employee or agent acting within the scope
        of the employment or agency, even though the principal or employer has not
        personally committed a wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42
        (Tex. 2002) (citing Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.
        1998)). If a party’s alleged health care liability is purely vicarious, a report that
        adequately implicates the actions of that party’s agents or employees is sufficient.
        Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 67–72 (Tex. 2008).

        ....

        The converse implication of Gardner is that if a party’s alleged health care liability
        is not “purely vicarious” but direct, then a report that implicates only the actions of
        that party’s agents or employees is insufficient to that extent. Cf. Gardner, 274
        S.W.3d at 671–72.


Id. at *30–31; see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (“[T]he report

must include the required information within its four corners.”).




                                                     11
                   Similar to the expert report that was before this Court in Fung, the expert report here

does not address direct liability claims against ARC. We, therefore, conclude that the trial court

abused its discretion by denying appellants’ motion to dismiss the direct liability claims against ARC.

Fung, __ S.W.3d at __, 2012 Tex. App. LEXIS 2959, at *37–38; but see Certified EMS, Inc. v. Potts,

355 S.W.3d 683, 685, 694 (Tex. App.—Houston [1st Dist.] 2011, pet. granted) (reaching contrary

conclusion and noting that supreme court “has not directly decided whether expert report must set out

each and every liability theory within a cause of action”). We sustain appellants’ fifth issue.4


                                              CONCLUSION

                   Because we conclude that the trial court abused its discretion by denying appellants’

motion to dismiss the direct liability claims against ARC, we reverse the trial court’s order as to those

claims and remand the case to the trial court with instructions to dismiss those claims and to consider

ARC’s request for attorney’s fees and costs.5             We otherwise dismiss this appeal for want

of jurisdiction.

         4
           Because we have sustained appellants’ fifth issue, we need not address their third issue,
 alternatively arguing that Power abandoned the direct liability claims against ARC at the hearing on
 appellants’ motion to dismiss. See Tex. R. App. P. 47.1. We note that Power’s attorney at oral
 argument before this Court conceded that Power had abandoned his direct liability claims against
 ARC. See In re C.C.J., 244 S.W.3d 911, 921 (Tex. App.—Dallas 2008, no pet.) (“A party who
 abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered
 of record, so as to show that the matters therein were not tried.” (citing Tex. R. Civ. P. 165)). When
 questioned by the trial court during the hearing on the motion to dismiss if there was some other
 basis to name ARC other than vicarious liability, Power’s attorney stated:

         Your Honor, I will concede that in that report, no, there’s nothing else as to ARC.
         We will be moving forward strictly with vicarious liability under respondeat superior.
         5
            Those attorney’s fees would be limited to those fees pertaining to pre-dismissal direct
 liability only.

                                                     12
                                   __________________________________________

                                   Melissa Goodwin, Justice

Before Justices Puryear, Henson and Goodwin

Reversed and Remanded in part; Dismissed in part

Filed: June 28, 2012




                                              13
