                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00316-CV


THOMAS C. BINZER, M.D., AND                                         APPELLANTS
THOMAS C. BINZER, M.D., P.A.

                                        V.

JOSEPH E. ALVEY, JR.                                                   APPELLEE


                                     ----------

         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                     ----------

                                   OPINION
                                     ----------

      This is an appeal from the trial court’s denial of appellants Thomas C.

Binzer, M.D. and Thomas C. Binzer, M.D., P.A.’s motion for partial dismissal

under section 74.351 of the civil practice and remedies code. In three issues,

appellants contend that appellee Joseph F. Alvey, Jr.’s expert report failed to

address four of appellee’s pled theories of liability, that it failed to provide an

adequate expert opinion as to those theories, and that they were not required to
timely file and serve objections under section 74.351(a) to preserve their

complaints. We affirm.

                                    Background

      Appellee sued appellants, claiming Dr. Binzer was negligent in his

treatment of a methicillin resistant staphylococcus aureus (MRSA) infection after

performing shoulder surgery on appellee. Appellee contended that Dr. Binzer

was negligent in the following:      (1) failing to timely advise him that he was

infected with MRSA, (2) failing to advise him of conflicting medical studies and

reports, (3) concealing the MRSA infection after inquiry by appellee, (4) failing to

timely treat the infection, (5) failing to properly treat the infection, (6) failing to

properly follow, observe, and test appellee to determine the progress of the

infection, (7) failing to timely and properly refer appellee to an infectious disease

specialist, and (8) failing to timely and properly consult with an infectious disease

specialist. Appellee also contended that Dr. Binzer made false representations

about the existence of an infection.

      Appellee timely served an expert report on appellants on May 13, 2011.

Appellants filed a motion for partial dismissal and costs on June 22, 2011,1 more

than twenty-one days following the service of the expert report. The motion for


      1
       Although the certificate of service in the motion to dismiss states that it
was mailed to appellee on May 17, 2011, appellee’s counsel filed an affidavit with
the court stating that he did not receive it until June 23, 2011 and that the report
was accompanied by a cover letter dated June 17, 2011. Appellants did not
dispute this affidavit.


                                          2
partial dismissal contends that the report constitutes no report as to appellee’s

first three negligence theories of liability and his false representation claim

because it wholly fails to address these theories of liability. The trial court denied

the motion after a hearing.

                                      Analysis

      Section 74.351(a) of the civil practice and remedies code provides that “[i]n

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 . . . for each physician or health care provider against

whom a liability claim is asserted.”            Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(a) (West 2011). It also provides that a defendant in a health care

liability suit must object to the sufficiency of a timely-filed expert report no later

than twenty-one days after service. Id. A defendant who fails to do so waives

“all” objections to the report. Id.; see Ogletree v. Matthews, 262 S.W.3d 316, 322

(Tex. 2007); Neason v. Buckner, 352 S.W.3d 254, 257 (Tex. App.––Houston

[14th Dist.] 2011, no pet.). The statute does not require dismissal of deficient but

curable reports. Ogletree, 262 S.W.3d at 320.

      Appellants claim that because appellee’s expert report failed to address

the specific claims they challenge, appellee in effect provided no expert report at

all on those claims; therefore, appellants were not required to object within the

twenty-one day period set forth in section 74.351(a).          However, appellants’

motion for partial dismissal acknowledges that the report addresses some but not


                                          3
all of appellee’s pled theories of liability, and appellants’ objections were

discernable and thus could have been made within the twenty-one day period.

See id. To the extent that the report sufficiently addresses some pled theories of

liability but not others, it is a “deficient, but curable” report rather than no report at

all. See id. at 320, 322. But because appellants failed to object to this alleged

deficiency, they cannot now require appellee to cure it or face dismissal of those

theories under the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a);

Ogletree, 262 S.W.3d at 322. Accordingly, we conclude and hold that because

appellee timely served a report that addresses some of his claims in the live

petition, appellants were required to object to “all” alleged deficiencies in the

report within the twenty-one day period.          See Neason, 352 S.W.3d at 259.

Because they failed to do so, they waived those objections.               Ogletree, 262

S.W.3d at 322; Neason, 352 S.W.3d at 259.

      Appellants cite Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.––Fort

Worth 2003, pet. denied), and Benson v. Vernon, 303 S.W.3d 755, 761 (Tex.

App.––Waco 2009, no pet.), in support of their argument. Both of these cases

are inapposite because they do not involve the waiver provision of section

74.351(a) and its explicit language that “all” objections not timely made are

waived.    We agree with the holding in Windsor that an expert report must

address each theory of liability alleged in the plaintiff’s pleadings, but we do not

even reach that issue if a report qualifies as a report under the statute (whether

deficient or adequate) as to some theories of liability and the defendant does not


                                            4
timely object to any theories of liability missing from the report. See Windsor,

121 S.W.3d at 51. The holding in Neason is directly on point, and we agree with

and adopt its reasoning, which is based on the plain language of section

74.351(a). Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Neason, 352 S.W.3d

at 259. We overrule appellants’ third issue, which is dispositive of this appeal.

Accordingly, we need not address their first and second issues. See Tex. R.

App. P. 47.1; Davisson v. Nicholson, 310 S.W.3d 543, 559 n.11 (Tex. App.––Fort

Worth 2010, no pet.) (op. on reh’g).

                                   Conclusion

      Having overruled appellants’ third and dispositive issue, we affirm the trial

court’s order.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

DELIVERED: January 19, 2012




                                        5
