                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-06-105-CV


CENTER FOR NEUROLOGICAL DISORDERS, P.A.
AND GREGORY A. WARD, M.D.                                         APPELLANTS

                                      V.

ROGER P. GEORGE AND JULIET A. GEORGE                               APPELLEES

                                  ------------

          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                         OPINION ON REMAND

                                  ------------

      Appellants Center for Neurological Disorders, P.A. (“CND”) and Gregory

A. Ward, M.D. appeal from the trial court’s denial of their motions to dismiss

the claims of Appellees Roger P. George and Juliet A. George with prejudice.

Originally, we dismissed this appeal for want of jurisdiction.1   Because the




      1
       … Ctr. for Neurological Disorders, P.A. v. George, 253 S.W.3d 289, 290
(Tex. App.—Fort Worth 2007) (mem. op.), rev’d, 253 S.W.3d 217 (Tex. 2008).
Texas Supreme Court has instructed us that we do have jurisdiction,2 we now

consider the appeal on the merits.

      In five issues, CND and Dr. Ward argue that (1) the trial court’s denial of

the motions to dismiss should be reviewed under a de novo standard; (2) the

trial court erred by denying the motion to dismiss because the Georges’ expert

report does not meet the statutory requirements of an expert report with

respect to claims against Dr. Ward; (3) all direct liability claims against CND

must be dismissed with prejudice because the report omits any reference to

negligence by CND independent of Dr. Ward’s negligence; (4) all vicarious

liability claims against CND must be dismissed with prejudice because the

report alleges only Dr. Ward’s negligence and omits any reference to negligence

by any other physicians or health care providers affiliated with CND; and (5) the

proper remedy is reversal and rendition. Because we hold that the report does

not represent an objective good faith effort to comply with the statutory

requirements of an expert report with respect to the Georges’ claims that are

based on the esophageal perforation, the claims that are based on the alleged

negligence of Dr. Ward before and during the first surgery, or the claim against

CND for failure to supervise, and because we conclude that the proper remedy

on reversal is remand, we reverse as to these claims and remand them to the


      2
          … George, 253 S.W.3d at 217.

                                       2
trial court for consideration of whether to grant the Georges time to cure the

report’s deficiencies in those areas.       Because we hold that CND did not

preserve its complaints regarding the Georges’ vicarious liability and direct

liability claims based on the acts of employees and agents other than Dr. Ward,

we affirm as to those claims. Because we hold that the Georges’ expert report

represents an objective good faith effort to comply with the statutory

requirements of an expert report on the Georges’ direct negligence claims

against Dr. Ward, with the exception of the esophageal perforation claims and

their claims that are based on Dr. Ward’s actions before and during the first

surgery, we affirm as to those claims.       We therefore also affirm as to the

Georges’ vicarious liability claims that are based on Dr. Ward’s negligence, with

the exception of the esophageal perforation claims and their claims that are

based on Dr. Ward’s actions before and during the first surgery.

                              B ACKGROUND F ACTS

      In 1987, before the events giving rise to the underlying lawsuit, Mr.

George underwent an anterior cervical discectomy and fusion for shoulder and

arm pain after a neck injury. Then in 2003, Mr. George went to Dr. Ward

complaining of numbness and pain in both arms and hands and in his left leg;

he also complained of a diminished grip. Dr. Ward is a physician with offices

at CND, and his practice includes neurosurgery.



                                        3
      Radiographic studies showed some postoperative changes, spondylosis,

stenosis, and pseudoarthrosis in the cervical spine.          On Dr. Ward’s

recommendation, Mr. George underwent surgery performed by Dr. Ward. Mr.

George developed postoperative complications, including the inability to move

his left hand and leg and general weakness on his left side, and the loss of

sensation in his right leg. As a result, Mr. George received first an MRI scan

and then a CT scan. After the CT scan, Dr. W ard diagnosed postoperative

hematoma, initiated high dose steroid therapy, and performed a procedure to

drain the hematoma.      After the second surgery, Mr. George continued to

experience neurological deficits in his left leg and arm.

      On September 8, 2003, Mr. George called Dr. W ard and reported

difficulty swallowing.   Examination revealed a fistula from Mr. George’s

esophagus into his right neck. Mr. George was again admitted to the hospital

and a Dr. Tran evaluated Mr. George’s condition. Dr. Tran considered surgery

to be too risky, and Mr. George was sent home with IV therapy plus

Sandostatin injections and insulin injections. Examination on September 19,

2003, revealed that the fistula had closed.

      Mr. George continued to experience numbness on his right side and partial

paralysis in his left hand. Dr. Ward examined Mr. George on October 21, 2003,

and told Mr. George that he had Brown-Sequard Syndrome and that it could



                                       4
take many months to recover.        Mr. George claims that since that time his

neurological condition has not significantly improved.

      The Georges filed health care liability claims against Dr. Ward and CND

on September 16, 2005, and an amended petition on November 09, 2005.

They alleged that Dr. Ward breached his duty of ordinary care and his duty to

act as a neurosurgeon of reasonable and ordinary prudence in his “diagnosis,

assessment, care, and treatment of Roger George’s cervical spine and related

conditions, and/or management or supervision of such medical and/or health

care diagnosis, assessment, care[,] and treatment.” Specifically, they claimed

that he breached his duty by:

•     failing to provide timely, proper, and adequate medical and surgical

      diagnosis, assessment, care, and treatment of Mr. George’s cervical

      spinal conditions and injuries, of his other medical conditions, and to Mr.

      George before and after Mr. George’s two spine surgeries;

•     engaging “in other acts or omissions” departing from the standard of

      medical care in his diagnosis, assessment, care, and treatment of Mr.

      George’s   cervical   spine    conditions   and   injuries,   Mr.   George’s

      postoperative esophageal injuries, and other medical conditions;

•     failing to provide, by and through his employees, servants, or agents,

      health care assessment, testing, evaluation, care, and therapy to Mr.



                                        5
        George for his cervical spine conditions and other associated medical

        conditions;

•       individually, or by and through Dr. Ward’s employees, servants, or

        agents, engaging in other acts and omissions departing from the accepted

        standards of medical care with respect to Mr. George’s spinal conditions,

        postoperative esophageal injuries or conditions, and other injuries or

        conditions; and

They further alleged that Dr. Ward’s conduct amounted to gross negligence.

They also asserted both direct and vicarious theories of liability against CND.

        On January 14, 2006, the Georges served Dr. Ward and CND the expert

report required under section 74.351 of the Texas Civil Practice and Remedies

Code.      The report of Dr. Isabelle Richmond states that Mr. George’s

postoperative conditions indicated the presence of an epidural hematoma, that

Dr. Ward’s four-and-a-half hour delay in initiating high dose steroid therapy and

surgical drainage of the hematoma deviated from the standard of medical care,

and that these deviations “in all reasonable medical probability caused Mr.

George to sustain a permanent spinal cord injury.”

        Dr. Ward and CND filed motions to dismiss the Georges’ claims with

prejudice under section 74.351 of the civil practice and remedies code,




                                        6
challenging the sufficiency of Dr. Richmond’s report. After a hearing, the trial

court denied their motions, and Dr. Ward and CND filed this appeal.

                                     A NALYSIS

Proper Standard of Review

      In reviewing a trial court’s decision on a motion to dismiss a claim arising

under former article 4590i of the revised civil statutes, the predecessor to

section 74.351,3 the Texas Supreme Court applied an abuse of discretion

standard. 4 In their first issue, CND and Dr. Ward claim that under the current

version of the statute, a de novo standard of review applies.                 Some

commentators have expressed doubt as to whether the abuse of discretion

standard still applies,5 but courts of appeals reviewing health care liability claims

under section 74.351 have continued to apply that standard.6 Accordingly,


      3
       … Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws
2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,
2003 Tex. Gen. Laws 847, 884 (recodified at T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 74.351 (Vernon 2005) (effective Sept. 1, 2003)). For ease of reference, in
the remainder of this opinion, we refer to this statute as former article 4590i.
      4
        … See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 877–78 (Tex. 2001) (applying abuse of discretion standard to former
article 4590i).
      5
       … See Kendrick v. Garcia, 171 S.W.3d 698, 702–03 (Tex.
App.— Eastland 2005, pet. denied); George C. Hanks, Jr. & Rachel
Polinger-Hyman, Redefining the Battlefield, 67 T EX. B.J. 936, 943 (2004).
      6
       … See Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex. App.—Houston [14th
Dist.] 2005, pet. granted); Kendrick, 171 S.W.3d at 702–03.

                                         7
absent any controlling authority applying a de novo standard, we review a trial

court's determination as to the adequacy of an expert report under section

74.351 for abuse of discretion.7 We overrule CND and Dr. Ward’s first issue.

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable.8 Merely because a trial court may decide a matter within its

discretion in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.9

But a trial court has no discretion in determining what the law is or in applying

the law to the facts, and thus “a clear failure by the trial court to analyze or

apply the law correctly will constitute an abuse of discretion.” 10




      7
     … See Palacios, 46 S.W.3d at 877–78; Kendrick, 171 S.W.3d at
702–03; Mokkala, 178 S.W.3d at 70.
      8
       … Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
      9
          … Id.
      10
        … Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ehrlich v.
Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).

                                       8
Sufficiency of the Expert Report as to Dr. Ward

      In their second issue, CND and Dr. Ward argue that Dr. Richmond’s report

does not meet the statutory good faith requirement, and the trial court therefore

erred in failing to dismiss the Georges’ claims against Dr. Ward with prejudice.

      In a health care liability claim, a claimant must serve an expert report on

each defendant no later than the 120th day after the claim is filed.11 Under

section 74.351(b), if an expert report has not been served on a defendant

physician or health care provider within the 120-day period, then on the motion

of the affected physician or health care provider, the trial court must dismiss

the claim with prejudice.12 The words “has not been served” include cases in

which a report has been served but found deficient by the trial court. 13

Subsection (b) is made subject to subsection (c), which provides that when no

report has been served because the report that was served was found to be

inadequate, the trial court has discretion to grant one thirty-day extension to

allow the claimant to cure the deficiency.14 Unlike under former article 4590i,



      11
           … T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(a).
      12
           … Id. § 74.351(b).
      13
           … Lewis v. Funderburk, 253 S.W.3d 204, 207–08 (Tex. 2008).
      14
      … T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(c); Leland v. Brandal, 217
S.W.3d 60, 64–65 (Tex. App.—San Antonio 2006), aff’d, No. 06-1028, 2008
WL 2404958 (Tex. Jun. 13, 2008).

                                           9
a trial court may not grant an extension for any other reason absent an

agreement of the parties.15

      A defendant may challenge the adequacy of a report, and the trial court

must grant the motion to dismiss if it finds, after a hearing, that “the report

does not represent an objective good faith effort to comply with the definition

of an expert report” in the statute.16 While the expert report “need not marshal

all the plaintiff's proof,” 17 it must provide a fair summary of the expert’s

opinions as to the “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.” 18 To constitute a good-faith effort, the report must “discuss

the standard of care, breach, and causation with sufficient specificity to inform

the defendant of the conduct the plaintiff has called into question and to

provide a basis for the trial court to conclude that the claims have merit.” 19 A

report does not fulfill this requirement if it merely states the expert's


      15
     … Thoyakulathu v. Brennan,                  192    S.W.3d     849,   852   (Tex.
App.—Texarkana 2006, no pet.).
      16
           … T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(l).
      17
           … Palacios, 46 S.W.3d at 878 (construing former art. 4590i, § 13.01).
      18
           … T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(r)(6).
      19
           … Palacios, 46 S.W.2d at 875.

                                           10
conclusions or if it omits any of the statutory requirements.20 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.” 21

      We agree with CND and Dr. Ward that Dr. Richmond’s report did not

constitute a good faith effort with respect to CND and Dr. Ward’s alleged

negligence in the recognition and investigation of Mr. George’s esophageal

perforation or in his diagnosis, care, and treatment of Mr. George before and

during the first surgery. The report did not provide any standard of care for the

treatment of esophageal perforation, did not describe how any actions or

omissions of Dr. Ward or another physician failed to meet the standard of care,

or give an opinion as to causation or damages. With respect to claims based

on Dr. Ward’s actions before and during the first surgery, the report says only

that “Dr. Ward was required to properly perform the anterior cervical fusion

with application of an anterior cervical plate in a technically competent

fashion.”     The report therefore does not inform CND and Dr. Ward of the

specific conduct that the Georges have called into question or provide a basis




      20
           … Id. at 879.
      21
           … Id.

                                       11
for the trial court to conclude that the claims have merit, and thus it does not

constitute a good faith effort with respect to these claims.22

      With respect to the Georges’ other claims against Dr. Ward, however, Dr.

Richmond’s report does constitute a good faith effort under the statute. On

page four of her report, Dr. Richmond gives her opinion of the applicable

standard of care as to the Georges’ other claims: Dr. Ward “was required to

properly perform the anterior cervical fusion with application of an anterior

cervical plate in a technically competent fashion,” as well as “provide timely

and proper postoperative surveillance and treatment” of Mr. George.               Dr.

Richmond gives the applicable postoperative standard of care as requiring Dr.

Ward to “monitor and promptly investigate and treat any new onset of

neurological deficit experienced by Mr. George.”

      Dr. Richmond’s report then states her opinion of the manner in which Dr.

Ward breached the standard of care. According to Dr. Richmond’s report, Dr.

Ward “did not timely treat and investigate Mr. George’s new onset neurologic

deficit.” Dr. Ward “should have immediately initiated and performed surgical

drainage of the hematoma” after receiving the MRI scan results. Dr. Richmond

gives her further opinion that after the MRI scan, the CT scan of Mr. George

was   unnecessary      to   diagnose   the   spinal   cord   compression,   and    it


      22
           … See id. at 875.

                                        12
inappropriately further delayed Mr. George’s treatment.        Finally, her report

states that the high dose steroid protocol was not timely initiated because it

was not initiated until almost four hours after Mr. George’s spinal cord injury

“was or should have been clinically evident to Dr. Ward.”

      The report also represents a good-faith effort to summarize the causal

relationship between Dr. Ward's failure to meet the applicable standards of care

and Mr. George's injury.23 Dr. Richmond states that epidural spinal hematoma

“is the most common neurosurgical complication of spinal surgery producing

new onset neurological deficit,” and that “[i]f not diagnosed and treated

promptly, it can result in severe and permanent spinal cord injury.” She also

states that “[p]rompt administration of high dose steroid therapy is known to

reduce the severity of spinal cord injury if given in a timely manner.” She further

states that the “epidural hematoma produces spinal cord damage by putting

pressure on the spinal cord and reducing tissue perfusion” and that “prompt

surgical drainage of the hematoma would have reduced the pressure much

earlier and lessened the degree of spinal cord damage.” In her opinion, the

delay in the initiation of the high dose steroid therapy and the drainage of the




      23
        … See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002)
(stating that an expert report cannot be conclusory and must make a good-faith
effort to summarize the causal relationship between the alleged breach of the
standard of care and the alleged injury).

                                        13
hematoma were deviations from the standard of medical care that “in all

reasonable medical probability caused Mr. George to sustain a permanent spinal

cord injury,” and “the severity of his permanent spinal cord injury probably

would have been reduced” if he had received the proper treatment earlier. Dr.

Richmond asserts that Dr. Ward failed to take actions that are known to be

effective if timely performed. She explains that by failing to take these actions,

Dr. W ard allowed the continuation of a condition that can cause severe and

permanent injury of the type complained of by Mr. George. These assertions

by Dr. Richmond are not merely conclusory and make a good-faith effort to

summarize the causal relationship between Dr. Ward’s negligence and Mr.

George’s spinal injury.

      Because we hold that with the exception of claims relating to Mr.

George’s esophageal perforation and to alleged negligence by Dr. Ward before

and during the first surgery, Dr. Richmond’s report discusses the standard of

care, breach, and causation with sufficient specificity to inform Dr. Ward of the

conduct that the Georges have called into question and to provide a basis for

the trial court to conclude whether the claims have merit, we overrule CND and

Dr. Ward’s second issue as to all claims against Dr. Ward except those relating

to the esophageal perforation and to Dr. Ward’s alleged negligence before and

during the first surgery.



                                       14
Sufficiency of Dr. Richmond’s Report as to CND

Direct Liability of CND

      In their third issue, CND and Dr. Ward assert that the trial court should

have dismissed the Georges’ claims that are based on CND’s direct liability

because Dr. Richmond’s report makes no attempt to address any of the

Georges’ allegations of direct liability.      The Georges’ pleadings allege two

grounds of direct liability against CND: (1) CND failed to “timely, properly,

safely, or adequately govern or supervise the quality of medical, surgical[,] and

health care services to and for Roger George” (“failure to supervise”) and (2)

CND directly and through its employees or agents engaged in acts or omissions

departing from the applicable standard of care. We first address the failure to

supervise claim.

      Neither party disputes that the failure to supervise claim is a health care

liability claim. Thus, the Georges’ were required to provide an expert report on

this claim or face having the claim dismissed with prejudice. 24 Dr. Richmond’s

report does include her opinion as to the standard of care applicable to CND,

but only in the context of CND’s provision of medical services through Dr.

Ward. In her paragraph setting out the standard of care, Dr. Richmond states

only that “[CND], by and through . . . Dr. Ward, was responsible for meeting


      24
           … See T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(b).

                                          15
the reasonable, prudent, and accepted standards of health care” in the

treatment of Mr. George, and that Dr. W ard provided medical care to Mr.

George “in the course and scope of employment with [CND] and in furtherance

of [CND]’s business.”       This language clearly supports a claim for CND’s

vicarious liability for Dr. Ward’s alleged negligence, but it fails to establish a

separate standard of care applicable to a professional association of

neurosurgeons.25

        When discussing CND’s breach of the standard of care, the report states

that CND, through Dr. Ward, “failed to provide medical services to Mr. George

in a reasonable prudent manner,” and again states that Dr. Ward provided

medical services to Mr. George in the scope of Dr. Ward’s employment with

CND and in furtherance of CND’s business. The report does not state any

specific conduct of CND that violated any applicable standard of care; the

report here addresses only CND’s vicarious liability for any negligence of Dr.

Ward.        Because Dr. Richmond’s report does not state a standard of care

applicable to CND or state with specificity any conduct of CND that breached

an applicable standard of care, the report does not make a good faith effort to


        25
        … See, e.g., Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d
893, 899 (Tex. 2005) (“Determining the standard of care demanded from a
professional association of anesthesiologists in providing anesthesiology
services ‘requires skills not ordinarily possessed by lay persons.’”) (quoting St.
John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995)).

                                       16
comply with section 74.351 as to CND’s failure to supervise, and the trial court

abused its discretion in finding otherwise. We therefore sustain CND and Dr.

Ward’s third issue as to the Georges’ failure to supervise claim.

      CND also asserts in its brief that Dr. Richmond’s report does not

sufficiently address, and therefore the trial court erred by not dismissing with

prejudice, the Georges’ claim that CND directly and through its employees or

agents engaged in acts or omissions departing from the applicable standard of

care. The complaint on appeal must be the same as that presented in the trial

court.26 An appellate court cannot reverse based on a complaint not raised in

the trial court.27 CND did not present this argument to the trial court; its motion

to dismiss discussed only the failure to supervise claim. We therefore do not

address this issue because CND did not preserve it below.28 Accordingly, we

overrule CND and Dr. Ward’s third issue with respect to this claim.




      26
       … Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Tex. Dep't of
Pub. Safety v. Bond, 955 S.W.2d 441, 448 (Tex. App.—Fort Worth 1997, no
pet.).
      27
           … Banda, 955 S.W.2d at 272.
      28
          … See T EX. R. A PP. P. 33.1; see also Alvarez v. Thomas, 172 S.W.3d
298, 302 (Tex. App.—Texarkana 2005, no pet.) (refusing to consider alternate
grounds for overruling motion to dismiss when such grounds were not raised
in trial court and stating that “[i]t would be improper to conclude the trial court
erred on an issue that was not presented to it”).

                                        17
Vicarious Liability of CND

      Under their fourth issue, CND and Dr. Ward argue that all vicarious

liability claims against CND must be dismissed with prejudice. The Georges

made claims against CND based on two grounds of vicarious liability, one based

on the alleged negligence of Dr. Ward and another based on the alleged

negligence of other physicians and health care providers employed by or acting

as agents for CND. CND first argues that the trial court erred by not dismissing

with prejudice the vicarious liability claims based on Dr. Ward’s alleged

negligence because the expert report was insufficient to sustain any claims

against Dr. Ward. Under section 24 of the Professional Association Act, the

negligence of a professional association’s employee is imputed to the

association,29 as CND and Dr. Ward recognize in their brief. Thus, if the expert

report is sufficient as to the claims against Dr. Ward, and we have held that it

is except as to the claims relating to the esophageal perforation and to acts of

Dr. Ward before and during the first surgery, then the report is sufficient as to

claims against CND that are based on Dr. Ward’s alleged negligence. 30

      CND also argues that the trial court erred by failing to find that Dr.

Richmond’s report was insufficient to support the vicarious liability claims based

      29
      … T EX. R EV. C IV. S TAT. A NN. art. 1528f, § 24 (Vernon 2003); Battaglia,
177 S.W.3d at 902.
      30
           … See T EX. R EV. C IV. S TAT. A NN. art. 1528f, § 24.

                                           18
on the alleged negligence of physicians and health care providers other than Dr.

W ard. CND did not make this argument to the trial court. CND thus did not

preserve this issue for appeal.31 We therefore overrule CND and Dr. Ward’s

fourth issue, except to the extent that the Georges’ make any vicarious liability

claims based on Dr. Ward’s alleged negligence with respect to the esophageal

perforation and his alleged negligence before and during the first surgery.

Proper Remedy on Reversal

      In their final issue, CND and Dr. Ward argue that rendition is the

appropriate remedy on reversal.      In the Georges’ response to CND and Dr.

Ward’s motion to dismiss, they had asked the trial court, should the court find

their expert report to be deficient, to grant them the thirty-day extension

available under section 74.351(c).       CND and Dr. Ward maintain that the

Georges could have corrected any defects in the report before the hearing on

the motions to dismiss and thus should not now have the opportunity to cure

any deficiency. They further argue that to remand any claims to the trial court

would render futile the interlocutory appeal remedy.

      Section 74.351 provides that if a claimant is found not to have served the

expert report within the 120-day time period because the elements of the report

are deficient, the trial court has discretion to grant a thirty-day extension to the


      31
           … See Alvarez, 172 S.W.3d at 302.

                                        19
claimant to cure the deficiency.32        The dismissal remedy under subsection

74.351(b) is expressly made “subject to” subsection 74.351(c), and thus the

legislature intended that the right to have a claim dismissed under the

subsection be limited by the trial court’s ability to grant an extension of time to

cure any deficiencies.33 Further, the trial court cannot grant an extension unless

and until it finds the report to be deficient.34 Since the parties filed their briefs

in this case, the Texas Supreme Court has addressed the issue of whether

remand is appropriate. In Leland, after stating that a defendant may challenge

by interlocutory appeal a trial court’s determination that a report is adequate,

the court held that “section 74.351‘s plain language permits one thirty-day

extension when the court of appeals finds deficient a report that the trial court

considered adequate.” 35 Accordingly, we hold that for purposes of determining

the proper remedy on reversal it is irrelevant whether the Georges had the

opportunity to cure the report’s deficiency before the trial court ruled on the




      32
           … T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(c).
      33
           … Leland, 217 S.W.3d at 64–65.
      34
       … See Maxwell v. Elkins, 197 S.W.3d 858, 861 (Tex. App.—Eastland
2006, pet. denied) (holding that the trial court, in granting the claimant a thirty-
day extension, “necessarily gave consideration to the adequacy of the report”
because the court otherwise would have no reason to grant the extension).
      35
           … See Leland, 2008 WL 2404958, at *3.

                                           20
motion to dismiss.36 We also overrule CND and Dr. Ward’s argument that to

remand any claims to the trial court would render futile the interlocutory appeal

remedy. We overrule CND and Dr. Ward’s final issue.

                                  C ONCLUSION

      Having disposed of all of CND and Dr. Ward’s issues, we reverse the part

of the trial court’s order as to the Georges’ claims based on the esophageal

perforation, as to claims based on negligence of Dr. Ward before and during the

first surgery, and as to the Georges’ claim against CND for failure to supervise,

and we remand to the trial court the issue of whether to grant the Georges a

thirty-day extension to cure the deficiencies in Dr. Richmond’s expert report as

to those claims. We affirm the trial court’s order as to all of the Georges’ other

claims.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL B:       DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: July 10, 2008




      36
           … See id.

                                       21
