      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00717-CV



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

                                                  v.

                                  Nancy Jo Rodriguez, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-14-000903, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                              MEMORANDUM OPINION


                In this interlocutory appeal, Vivek Goswami, M.D. and Austin Heart, PLLC challenge

the trial court’s order denying their motion to dismiss brought pursuant to section 74.351(b) of the

Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9)

(authorizing appeal from interlocutory order denying relief sought under section 74.351(b) of

TMLA), 74.351(b) (generally requiring dismissal of health care liability claim on motion of affected

physician or health care provider when claimant fails to comply with expert report requirement).

Because we conclude that the expert report is deficient, we reverse the trial court’s order denying the

motion to dismiss and remand the case to the trial court to consider whether a thirty-day extension

is appropriate. See id. § 74.351(c) (allowing one thirty-day extension when court finds expert

report deficient).
                                         BACKGROUND

               Appellee Nancy Jo Rodriguez sued appellants and others asserting health care liability

claims stemming from Rodriguez’s use of the drug Pradaxa.1 Rodriguez was a patient of Austin

Heart, and one of her cardiologists at Austin Heart was Dr. Goswami. In her petition, Rodriguez

alleges that Dr. David Kessler, another cardiologist with Austin Heart, ordered that she stop using

Pradaxa; Dr. Goswami did not follow this order; and, “[a]s a result of her continued use of Pradaxa,

[she was] admitted to the hospital with hypotension, acute kidney injury and apparent gastrointestinal

bleeding, known side effects of the over-use of Pradaxa”; and she “suffers severe, painful, and life-

threatening injuries due to her continued use of Pradaxa.” Rodriguez timely served appellants with

an expert report and the expert’s curriculum vitae.2 See id. § 74.351(a) (requiring claimant asserting

health care liability claim as threshold matter to serve expert report with curriculum vitae “for each

physician or health care provider against whom a liability claim is asserted”).

               Appellants objected to the expert report and filed a motion to dismiss Rodriguez’s

claims against them on the grounds that the report was insufficient and constituted “no report at all.”

See id. § 74.351(b) (requiring trial court to dismiss claims on motion of affected health care

provider or physician if expert report not served within 120-day window); Scoresby v. Santillan,

346 S.W.3d 546, 554 (Tex. 2011) (discussing when expert report is “really no report at all” in

       1
          A separate interlocutory appeal from the same underlying proceeding is pending before this
Court in cause number 03-14-00765-CV. In that case, Rodriguez appeals the trial court’s order
dismissing her claims against the Walgreen Company and Sara Elizabeth McGuire, a pharmacist,
arising from the same allegations concerning Rodriguez’s use of Pradaxa. See Tex. Civ. Prac. &
Rem. Code § 74.351(l).
       2
         Rodriguez served reports from two different experts, but there is no dispute that the other
report does not apply to appellants.

                                                  2
context of whether trial court should grant extension to allow claimant to cure deficiency in report).

Appellants asserted that the report failed to set forth the applicable standard of care or explain how

the standard of care was breached or how any such breach caused Rodriguez’s alleged injuries.

Rodriguez filed a response to appellants’ objections and motion to dismiss, but she did not amend

the expert report. After a hearing, the trial court found that the expert report complied with section

74.351 of the TMLA and denied appellants’ motion to dismiss. This appeal followed.


                                             ANALYSIS

        Chapter 74 Expert Report Requirements

                Section 74.351 of the TMLA provides a 120-day window for a claimant, who is

asserting a health care liability claim, to serve each defendant physician and health care provider with

an expert report with the expert’s curriculum vitae. See Tex. Civ. Prac. & Rem. Code § 74.351(a).

“The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims

regardless of their merits.” Scoresby, 346 S.W.3d at 554. “A valid expert report has three elements:

it must fairly summarize the applicable standard of care; it must explain how a physician or health

care provider failed to meet that standard; and it must establish the causal relationship between the

failure and the harm alleged.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)).3


       3
           Section 74.351(r)(6) of the Texas Medical Liability Act (TMLA) defines an expert report
to mean:

        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

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                On the motion of an affected defendant physician or health care provider, the trial

court must dismiss the case if the claimant fails to serve an expert report within the 120-day window.

Tex. Civ. Prac. & Rem. Code § 74.351(b). If the claimant timely files an expert report, a trial court

should not grant a motion challenging the report’s adequacy unless “it appears to the court, 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). The Texas Supreme Court has defined a

“‘good faith effort’ as one that provides information sufficient to (1) ‘inform the defendant of the

specific conduct the plaintiff has called into question,’ and (2) ‘provide a basis for the trial court to

conclude that the claims have merit.’” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing American

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001))). The court also

may grant one thirty-day extension to the claimant to cure a deficiency in a timely-filed report. Tex.

Civ. Prac. & Rem. Code § 74.351(c); see Scoresby, 346 S.W.3d at 554, 559 (holding that “document

qualifies as an expert report if it contains a statement of opinion by an individual with expertise

indicating that the claim asserted by the plaintiff against the defendant has merit” and noting that

“Legislature has likewise recognized that when an expert report can be cured in thirty days, the claim

is not frivolous”).




        standards, and the causal relationship between that failure and the injury, harm, or
        damages claimed.

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).

                                                   4
               To determine whether an expert report complies with section 74.351, courts consider

the information “found within the four corners of the expert report, which need not ‘marshall all the

plaintiff’s proof’ but must include the expert’s opinion on each of the three main elements: standard

of care, breach, and causation.” Jelinek, 328 S.W.3d at 539 (quoting Wright, 79 S.W.3d at 52 (citing

Palacios, 46 S.W.3d at 879)). The “‘report cannot merely state the expert’s conclusions about these

elements,’ but ‘the expert must explain the basis of his statements to link his conclusions to the

facts.’” Id. (quoting Wright, 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.

1999))); see Shenoy v. Jean, No. 01-10-01116-CV, 2011 Tex. App. LEXIS 10212, at *16 (Tex.

App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.) (noting 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”). “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 Wright, 79 S.W.3d at 53;

Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).

               We review a trial court’s denial of a motion to dismiss brought under section

74.351(b) for an abuse of discretion. TTHR Ltd. P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013)

(citing Palacios, 46 S.W.3d at 877). “Under that standard, appellate courts defer to the trial court’s

factual determinations if they are supported by evidence, but review its legal determinations de

novo.” Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). “A trial court




                                                  5
abuses its discretion if it rules without reference to guiding rules and principles.” Id. With these

standards in mind, we turn to appellants’ issues.


       Adequacy of Expert Report

               In two issues, appellants contend that the trial court abused its discretion when it

found that the expert report was adequate and when it denied their motion to dismiss brought under

section 74.351(b) of the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b). Appellants argue

that the expert report does not constitute a good faith effort to comply with the requirements of

section 74.351 because it fails to provide any facts surrounding the care and treatment provided by

appellants and offers only conclusory opinions that do not link facts to the expert’s conclusions on

the statutory elements of standard of care, breach, and causation. We turn then to review the

information “found within the four corners of the expert report.” See Jelinek, 328 S.W.3d at 539.

               After describing his qualifications and the records that he reviewed to form his

opinions, the expert, who was a cardiologist, opined in total:


       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.




                                                    6
       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. Rodriguez’s entire hospitalization was attributable to the failure to stop Pradaxa
       therapy as ordered by Dr. Kessler. More likely than not, had the Pradaxa 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.


               According to the report, Rodriguez’s claim is based on her use of Pradaxa after Dr.

Kessler “request[ed] that the Pradaxa be discontinued.” The report, however, does not reference

underlying facts concerning her care and treatment by appellants, but rather it contains only

conclusory statements such as the “request to stop the medication was not appreciated by”

Dr. Goswami and Rodriguez “appeared to be obtaining refills for this medication authorized by

nurses and staff of this same heart group.” For example, facts missing from the report include

whether Dr. Goswami had any reason to know of Dr. Kessler’s order, when Dr. Kessler made the

alleged request, to whom the request was communicated, whether appellants treated or had contact

with Rodriguez after the request, or the circumstances in which Rodriguez obtained the prescription

and refills on the prescription. Compare Gray, 189 S.W.3d at 859–60 (upholding dismissal of

claims against medical center and doctor based on inadequate expert report and noting that

conclusory statements do not satisfy requirements of section 74.351), with Van Ness, 461 S.W.3d

at 142–44 (reciting facts contained in expert report and concluding that trial court did not abuse

discretion “by determining that report was not conclusory” and that it was “good faith effort to

comply with the TMLA’s requirements”); Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 496–99

                                                 7
(Tex. App.—Dallas 2010, no pet.) (affirming trial court’s denial of motion to dismiss claims alleging

doctor negligently prescribed drug and describing specific facts contained in report that addressed

standard of care, breach, and causation).

               The report also fails to “fairly summarize the applicable standard of care,” “explain

how [appellants] failed to meet that standard,” or “establish the causal relationship between the

failure and the harm alleged.” See Potts, 392 S.W.3d at 630; see also Jelinek, 328 S.W.3d at 539–40

(explaining that “expert cannot simply opine that the breach caused the injury” but that “expert must

go further and explain, to a reasonable degree, how and why the breach caused the injury based on

the facts presented”). In the report, the expert states that the “standard of care would have been to

follow the orders of Dr. Kessler to stop the administration of Pradaxa,” but he does not differentiate

between appellants, the individual Goswami or Austin Heart. See Gray, 189 S.W.3d at 859

(concluding that trial court did not abuse discretion in finding expert report inadequate that stated,

“without explanation, that a single standard of care applied to both” the medical center and the

doctor and noting that “such generic statements, without more, can reasonably be deemed

conclusory”); Strom v. Memorial Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex. App.—Houston

[1st Dist.] 2003, pet. denied) (describing standard of care for health care provider or physician to be

“what an ordinarily prudent health-care provider or physician would have done under the same or

similar circumstances”).

               The expert also does not provide “specific information about what [appellants] should

have done differently.” See Palacios, 46 S.W.3d at 880; CHCA Mainland L.P. v. Burkhalter,

227 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (noting that identifying



                                                  8
standard of care in expert report “critical” because “whether a defendant breached his or her duty to

a patient cannot be determined absent specific information about what the defendant should have

done differently”). And the expert does not present facts to explain “how and why” appellants’

alleged breach of the standard of care caused Rodriguez’s alleged injuries. See Jelinek, 328 S.W.3d

at 539–40. “[N]either the trial court nor this Court may infer additional opinions or underlying facts

to fill in gaps that the report itself leaves open.” Hebert v. Hopkins, 395 S.W.3d 884, 890 (Tex.

App.—Austin 2013, no pet.) (citing Palacios, 46 S.W.3d at 878; Wright, 79 S.W.3d at 53); see Smith

v. Wilson, 368 S.W.3d 574, 576 (Tex. App.—Austin 2012, no pet.) (noting that trial court should

confine inquiry to four corners of expert report when adequacy of report challenged and that report

must link conclusions to facts); Webb, 228 S.W.3d at 279 (precluding court from “filling gaps in a

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

               Because the expert report fails to provide a basis to conclude that Rodriguez’s claims

have merit, see Jelinek, 328 S.W.3d at 539, we conclude that the trial court abused its discretion

when it found that the expert report complied with section 74.351 of the TMLA and denied

appellants’ motion to dismiss. See Moreno, 401 S.W.3d at 44. On this basis, we sustain

appellants’ issues.


       Thirty-day Extension

               Rodriguez asks this Court, should it conclude that the expert report is deficient, to

remand the case to the trial court so the trial court can consider whether to grant a thirty-day

extension to cure any deficiency in the report. See Tex. Civ. Prac. & Rem. Code § 74.351(c)

(authorizing court to grant one thirty-day extension to cure deficiency in report); Leland v. Brandal,

                                                  9
257 S.W.3d 204, 207–08 (Tex. 2008) (noting that section 74.351(c) “does not allow for an extension

unless, and until, elements of a report are found deficient, and that did not occur in this case until the

court of appeals so held” and, in that context, concluding that court of appeals had discretion to

remand “consideration of the extension issue to the trial court”).

                Appellants argue that Rodriguez is not entitled to an extension because her report

does not meet the Texas Supreme Court’s “minimal standard” for a trial court to consider an

extension and that the report is “no report at all.” See Scoresby, 346 S.W.3d at 557 (stating “minimal

standard” for trial court to grant extension and holding that trial court has discretion to grant

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”); Fung

v. Fischer, 365 S.W.3d 507, 535–36 (Tex. App.—Austin 2012, no pet.) (discussing Scoresby

standard for granting extension to cure deficient expert report and difference between deficient report

and report that is “so deficient as to constitute ‘no report’”), overruled in part on other grounds by

Potts, 392 S.W.3d 625.

                The report, however, was prepared by an expert who claimed expertise as a

cardiologist, opined that Rodriguez’s claims against appellants have merit, and implicated the

conduct of appellants. See Scoresby, 346 S.W.3d at 557. Further, the trial court concluded that the

report was adequate so Rodriguez has not had an opportunity to cure. In this context, we remand the

case to the trial court for it to consider whether to grant one thirty-day extension. See Leland,

257 S.W.3d at 207 (collecting cases in which courts of appeals, upon finding reports deficient,

remanded cases to trial court to decide whether to grant thirty-day extension to cure deficiencies).



                                                   10
                                         CONCLUSION

               For these reasons, we reverse the trial court’s order denying appellants’ motion to

dismiss and remand the case to the trial court for further proceedings consistent with this opinion.



                                      __________________________________________
                                      Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Reversed and Remanded

Filed: January 27, 2016




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