

Opinion issued March 8, 2012


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00835-CV
———————————
Barbara Marino, M.D., Appellant
V.
Wendy
Wilkins, Appellee

 

 
On Appeal from the 234th District Court
Harris County, Texas

Trial Court Case No. 2010-58689
 

 
O P I N I O N
Plaintiff
Wendy Wilkins sued defendant Barbara Marino, M.D., a gynecologist, for
negligence and gross negligence, claiming that liposuction procedures Marino
performed on Wilkins’ arms and legs left her severely disfigured and that
Marino’s post-operative care was deficient. 
Wilkins timely served both an original and an amended expert report by
Dr. Leo Lapuerta, a board certified plastic surgeon, under section 74.351 of
the Texas Civil Practice and Remedies Code. 
Marino filed objections to both reports and moved to dismiss Wilkins’s
claims based on the reports’ alleged deficiencies.  Without reaching the merits of Marino’s
substantive arguments, the trial court denied her motion to dismiss because it
concluded that Marino’s failure to object to two theories of liability
precluded dismissal.  
Marino filed this interlocutory
appeal challenging the trial court’s order.  She requests “the Court to reverse the denial
of Dr. Marino’s motion to dismiss.”  “In
the alternative, Dr. Marino requests the Court to reverse the denial of Dr.
Marino’s motion to dismiss as to any theory of liability to which Dr. Marino’s
objections should have been sustained.”  
We affirm.  
BACKGROUND
Wilkins filed her original petition
on September 13, 2010, alleging that Marino was negligent and grossly negligent
in performing her liposuction procedure.  Wilkins averred that Marino breached
applicable medical standards of care during two July 2009 liposuction procedures
performed on her arms and legs, causing “severe disfigurement and over
resection of subcutaneous fat . . . ”  Wilkins
petition also states that Marino’s failures “include, but are not limited to
the failure to properly document the procedures, the failure to document a
proper medical history, the failure to keep appropriate records; and the
failure to properly perform the medical procedures on Ms. Wilkins.”  The petition further alleges that “[t]hese
failures by Dr. Marino to properly care and treat Ms. Wilkins [are] breach[es]
of the standard of care and such breach proximately caused severe, permanent
and disabling injuries for which she now seeks recovery.” 
Lapuerta,
the author of Wilkins’s expert report, first examined Wilkins on November 14,
2009.[1]  Wilkins told Lapuerta that
Marino performed what is called “SmartLipo” surgery on her legs on July 1, 2008
and on her arms on July 9, 2008.  Lapuerta
observed that Wilkins “had numerous deformities of her extremities.”  Specifically, her “arms have very loose skin
and they have been completely over resected in terms of liposuction with severe
deformity and scalloping of the medial arm.” 
Similarly, Lapuerta observed that Wilkins “has a severe loose skin and
over resection of fatty tissue and from her medial and laterial posterior
legs.”  Wilkins told Lapuerta that she
was unable to wear her clothes now and is very embarrassed by the appearance of
her arms and legs.  
Lapuerta
ordered medical records from Marino.  The
records received in response did not contain any operative reports or
preoperative records.  Later Lapuerta
received an email with preoperative pictures reflecting Wilkins had “excess skin
laxity in her arms and lipodystrophy of the abdomen and thighs.”    Lapuerta’s report states his observation
that “[s]he certainly required a skin resection in her arms but underwent
liposuction by Dr. Marino, who is a fellow of the American College of Obstetrics
and Gynecology.”  According to Lapuerta,
the “records are very vague and include numerous problems such as treatments
that were never done on Ms. Wilkins,” including “Lipo-Ex#1” and “treatments of
a complex radiation treatment device by Hillary Ybarra, M.E.”  Wilkins’s family history contained in
Marino’s records “is also erroneous and states that [her] mother died at age
86, but Ms. Wilkins’ mother is not deceased.” 
The records further erroneously indicate she was treated for a complaint
related to her surgery on a date that is a month before surgery.  
The
liposuction procedures on Wilkins’s arms and legs are referenced on only one
page of the medical records.  That page
states that the July 9, 2008 liposuction was preformed “using the ultrasonic
liposuction as well as Smart Lipo and suction-assisted lipectomy with 700 cc
removed from the left arm and 600 cc removed from the right arm.”  It also indicated that “[l]iposuction of the
thighs [was] performed on July 1, 2008, using the same machines and
approximately 3000 cc of fat was removed from each thigh.”  Post-operative, Marino’s records indicate
that she prescribed mesotherapy, lipodisssolve, and “lipo ex treatment.”  Lapuerta also notes that Marino appears to
have treated Wilkins with “Vela Shape” and instructed her to use “body of
knowledge cream to facilitate healing.”               
A.  
The
First Report
On January 10, 2011,
Wilkins timely filed an expert report by Lapuerta.  In addition to setting forth the background
facts detailed above, Lapuerta’s report set forth his education and
qualifications, including that he is “board certified by the American Board of
Plastic Surgery and the American Board of Surgery,” “maintain[s] an active
practice in plastic surgery” and “is familiar with liposuction techniques and
treatment.”  He regularly sees
liposuction patients as a part of his practice and his report avers that he is
“familiar with the standards of care applicable to such treatment.”  The first report also contains the following
sections addressing the standard of care, breaches, causation, and his
conclusions:
Standard of Care
1.        The standard of care for
liposuction procedures require qualified and experienced plastic surgeons.
 2.      In addition, the standard of care calls for liposuction procedures
to be approached conservatively.  That
is, when any doubt exists as to the extent of resection to be performed, the
surgeon should err on the side of caution—resecting less tissue than might
ultimately be called for—in order to avoid taking out too much.  It is always easier to go back and take more
fat out than to perform actions that will require major corrective surgery
later on.  The standard of care calls for
a surgeon to be prepared to go back and resect additional tissue rather than
over-resect in a first surgery.
3.       The standard of care also
calls for the use of compressive bandages and girdles to alleviate swelling in
the post-operative period.
Breaches of Standard of Care
1.       I have grave doubts about
Dr. Marino’s qualifications to perform liposuction procedures.  I do not know of any accredited hospital or
outpatient surgical facility that would allow an OB/GYN physician to perform
liposuction.  It does not appear that she
has any certification in plastic surgery or any particular experience in that
area.  Under the circumstances, her mere
performance of this procedure was a breach of the standard of care.
2.       Dr. Marino breached the
standard of care by over resecting fatty tissue from Ms. Wilkins[’] arms and
legs. She failed to take an appropriately conservative approach to the
procedure and, consequently, she simply took out too much.  Both her approach to the
procedure—aggressively resecting tissues in a single procedure—and her ultimate
performance of that procedure were breaches of the standard of care.  
3.       Dr. Marino breached the
standard of care in her post-operative care of Ms. Wilkins by failing to
prescribe the use of compressive bandages and girdles and, instead, prescribed
mesotherapy, lipodissolve, and some type of “lipo ex treatment.”  While I am uncertain of exactly what the
latter consists, it is most definitely not in line with the standard of care.
Causation
In summary, Ms. Wendy Wilkins has severe disfigurement and over
resection of subcutaneous fat from “Smart Lipo” procedures performed by Dr.
Marino in July of 2008.  The over
resection was itself a breach of the standard of care and, I believe, resulted
from the performance of the liposuction procedure by an unqualified surgeon.  Post operative treatment with mesotherapy and
some type of Vela Shape have not corrected this over resection and was also a
breach of the standard of care.  In my 22
years of medical practice, I have not seen this extent of over resection of
subcutaneous fat in the arms and legs.  I
believe Ms, Wilkins has some severe permanent disfigurement directly resulting
from these procedures.  In the future,
Ms. Wilkins will require numerous corrective procedures to correct the
mentioned deformities.  To address the
arms, she will need bilateral brachioplasties followed by fat grafting.  To correct the over resection of the lower
leg, she will require a circumferential body lift procedure and a medial thigh
lift with fat grafting postoperatively.
I have additional concerns about Dr. Marino’s recordkeeping in her
treatment of Ms. Wilkins.  Dr. Marino
performed two separate surgeries, although standard practice would call for a
single surgical procedure involving treatment of both the arms and legs.  It is unclear from the records I have
reviewed why this was done, what type of anesthesia was used, whether there was
an anesthesiologist/CRNA in the room, or where exactly these procedures were
performed.  As noted above, I do not know
of any accredited hospital or outpatient surgical facility that would allow an
OB/GYN to perform liposuction.  While
recordkeeping issues did not cause Ms. Wilkins’ damages, they are another
breach of applicable standards and raise questions about the treatment she
received.  
Finally, I am concerned that an obstetrician and gynecologist who is
not a qualified plastic surgeon is performing plastic surgery and body
contouring on patients.  This may be
dangerous to other people in the community, and she may not be operating at an
approved ambulatory surgery center by the State of Texas.  I believe that this requires further
investigation.
Conclusion  
In my opinion, this treatment of Ms. Wendy Wilkins violates the
standard of care in the community in numerous breaches in the standard of care
such as a gynecologist performing body contouring at weekly intervals on the
patients.  The postoperative therapy is
also a breach on the standard of care. 
These breaches caused the aforementioned damages to Ms. Wilkins and will
require extensive additional treatment to correct, where correction is possible,
at all.  
B.  
Marino’s objections to the first report        
Marino timely objected
to the report within sixteen days of being served, advancing three arguments
about why the report was deficient. See Tex. Civ. Prac. & Rem. Code §
74.351(a) (Vernon 2011) (providing defendant 21 days to serve objections to
sufficiency of expert report). 
Lapuerta’s
Qualifications. 
First, Marino contended that Lapuerta was not qualified to render an
opinion because “the report fails to establish Dr. LaPuerto’s familiarity with
the procedures involved.”  She notes that
the “report does not establish that Dr. LaPuerta has any expertise or expertise
with the procedures in question, Smart Lipo, Lipo ex, and mesotherapy.”  
Standard
of Care.  Marino next
complains that Lapuerta’s report is too conclusory in its description of the
conservative approach.  Specifically,
Marino notes that his report “contains no specifics with respect to precisely
how much fatty tissue should be removed, how a doctor makes the determination
of the amount of fatty tissue to remove, or the actual amount of fatty tissue
removed by Defendants in this case.” 
According to Marino, the report “does not constitute a fair summary of
Dr. LaPuerta’s opinion’s because, while it is “apparent that Dr. LaPuerta
believes that Defendant removed too much fatty tissue and was therefore
negligent,” he “provides no specifics to explain this criticism, for example,
the appropriate amount of fat to remove or how one goes about ensuring that too
much fat is not removed.”  
Third
Objection:  Marino lodges a
third objection that does not speak specifically to standards of care, breach
or causation, but appears to relate to the above two objections.  She notes that Lapuerta’s report admits that
he does not know what “Lipo ex treatment” is and that “even though he is not
familiar with the treatment, he is confident that it is not within the standard
of care.”  She asserts that “[t]his
criticism by Dr. LaPuerta demonstrates his apparent lack of experience/expertise
and the conclusory nature of his opinion.”      

C.  
Wilkins’s
response and Lapuerta’s amended report     
Wilkins responded to
Marino’s objections and requested a 30-day extension to file an amended
report.  She argued that Lapuerta’s
report adequately “set forth his qualifications and familiarity with the
subject matter liposuction.”  She also argued
that both the standards of care and Lapuerta’s opinion about why the standards
were breached were adequately specific. 
Wilkins additionally
contended that by only objecting to one of the three standards of care set
forth in Lapuerta’s report—i.e., using a conservative approach to determine the
amount of tissue to resect in one surgery—during during the 21-day window
provided by section 74.351(a), Marino has waived any complaint concerning the
adequacy of the other two standards, i.e., calling for liposuction procedures
to be performed by qualified and experienced plastic surgeons, and calling for
the post-operative use of compressive bandages and girdles.      
After a hearing, the
trial court granted a 30-day extension for Wilkins to cure any deficiencies
within the report.  On July 27, 2011,
Wilkins timely filed an amended report, which added the following underlined
elaboration of the operative standard of care Marino should have used: 
2.       In addition, the standard
of care calls for liposuction procedures to be approached conservatively.  That is, when any doubt exists as to the
extent of resection to be performed, the surgeon should err on the side of
caution—resecting less tissue than might ultimately be called for—in order to
avoid taking out too much.  It is always
easier to go back and take more fat out than to perform actions that will
require major corrective surgery later on. 
The standard of care calls for a surgeon to be prepared to go back and
resect additional tissue rather than over-resect in a first surgery.  If necessary the surgeon should perform
multiple procedures, rather than attempting to complete all necessary
liposuction in a single treatment.  By
taking a conservative approach, the surgeon guards against the possibility of over-resection.  This also allows the surgeon to see the end
appearance of a first procedure before embarking upon a second or subsequent
one.  Setting out to perform a procedure
with a particular amount of percentage of tissue to resect is not within the
standard of care because it can lead to over-resection. The decision of how
much to resect must be made with “eyes on the ground” in the course of the
procedure itself.  It is a judgment that
will vary from patient to patient.  The
constant, however—and the standard of care—is a conservative approach to the
procedure.
The rest of the report
remained the unchanged. 
Marino again filed
objections and moved to dismiss this amended report.    As in her previous objections, Marino
contended the operative standard of care articulated in Dr. Lapuerta’s report
still lacked sufficient specificity.  She
argues that Lapuerta does nothing more than suggest a standard of care of
“exercise[ing] good judgment and resect[ing] an appropriate amount of
tissue.”  Thus, according to Marino, the
“report completely fails to state any objective standard to apply to surgeons
carrying out this procedure as Chapter 74 requires.”    
Marino also—for the
first time—directly attacked other theories that were first included in
Lapuerta’s initial report and which remained unchanged in the amended report,
which relate to Marino’s alleged lack of qualifications to perform liposuction,
failure to prescribe proper postoperative treatment, and failure to maintain
appropriate recordkeeping: 
The amended
report also contains broad statements that the standard of care was breached by
Defendant’s alleged lack of qualifications to perform surgery, the
postoperative misuse of bandages and girdles, and the quality of record
keeping.  The report does not state that
these alleged breaches caused injury to Plaintiff.  In fact, the report even explicitly states
that record keeping did not cause any injury to Plaintiff.  The report fails to state what specific
qualifications are required.  The report
fails to provide any detail about the type of postoperative bandages that
should be used or the length of time they should be applied.  Defendant objects to these allegations
because they are impermissibly vague and conclusory and because there is no
statement that these alleged breaches caused any injury.  
D.  
The
trial court’s order
After hearing
objections to Lapuerta’s supplemental expert report, the trial court concluded
that Marino waived her objections to two theories by failing to timely raise
pursuant to Section 74.351(a) and, thus, declined to address Marino’s objection
that the “conservative approach” standard of care was too vague.  It explained in its order:
Whether the Court would or would
not sustain the objections to the ‘conservative approach’ theory of liability
is irrelevant.  The plaintiff also
included two other theories of liability to which defendant never filed
objections.  Therefore, the case may go
forward and is not dismissed.  This is
true whether the Court sustained or overruled the objection regarding
‘conservative approach’ theories of liability. 
Thus, defendant’s motion is denied.   

Marino timely filed this interlocutory appeal
challenging that denial of her motion to dismiss.  See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) (Vernon 2008).  
APPLICABLE LAW
A. Standard of Review
A trial court’s ruling on a motion to dismiss a health care
liability claim is reviewed for clear abuse of discretion.  See
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Kendrick v. Garcia, 171 S.W.3d 698, 702–03 (Tex. App.—Eastland 2005, pet. denied)
(utilizing Palacios’ abuse-of-discretion
standard to review denial of a motion to dismiss under Section 74.351).  A trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.  Kendrick,
171 S.W.3d at 703 (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).  There is no abuse, however, simply because a
trial court may decide a matter within its discretion differently than an
appellate court would.  Downer, 701 S.W.2d at 242.  Thus, when reviewing matters committed to the
trial court’s discretion, a court of appeals may not substitute its own
judgment for that of the trial court. Wright,
79 S.W.3d at 52. 
B. Texas Civil Practice and Remedies
Code § 74.351 
Chapter 74 of the Civil Practice and Remedies Code requires a
claimant pursuing a health care liability claim to serve one or more expert
reports, with a curriculum of their experts, on each party no later than 120
days after the original petition is filed. Tex.
Civ. Prac. & Rem. Code. Ann. §74.351(a) (Vernon 2011).  The report must provide a fair summary of the
expert’s opinions regarding (1) the applicable standards of care; (2) the
manner in which the care provided failed to meet that standard; and (3) the
causal relationship between that failure and the injury, harm, or damages
claimed.  Id. §74.351(r)(6); Jelinek
v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (“[T]he plaintiff need not
marshal all of his proof in the [expert] report, but he must include sufficient
detail to allow the trial court to determine if the claim has merit.”).  
The phrase “has not been served” in section 74.351 refers to
deficient reports as well as absent reports. Compare § 74.351(b) (trial
court shall dismiss if an expert report “has not been served”) with § 74.351(c)
(trial court may grant a 30–day extension if an expert report “has not been
served . . . because elements of the report are found deficient”).  The consequences arising from failure to serve
an expert report regarding a particular defendant and service of a deficient
expert report are nonetheless different.  See Ogletree v. Matthews, 262 S.W.3d
316, 319–21 (Tex. 2007) (“[A] deficient report differs from an absent
report.”).
If the claimant fails to serve an expert report as to a
particular health care provider within 120 days, the trial court must, on the
health care provider’s motion, dismiss the claim against that provider with
prejudice and award the provider reasonable attorney’s fees and costs. Tex. Civ. Prac. & Rem. Code Ann. §
74.351(b).  On the other hand, if a
timely-served report implicates a particular defendant’s conduct, the defendant
must file and serve “any
objection to the sufficiency of the report not later than the 21st day after
the date it was served, failing which all
objections are waived.”  Id. § 74.351(a); Poland v. Grigore,
249 S.W.3d 607, 616 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  If valid objections have been timely asserted,
dismissal is not required.  See
Ogletree, 262 S.W.3d at
319–21.  Instead, the court may grant a
single 30–day extension to cure any deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).  “A court shall grant a motion challenging the
adequacy of an expert report only if it appears to the court, after hearing,
that the report does not represent an objective good faith effort to comply
with the statutory definition of an expert report.” Id. § 74.351(l
).
THE PARTIES’ ARGUMENTS
Marino appeals the denial of her motion to dismiss in two
issues, requesting that we reverse and render judgment dismissing Wilkins’s
case with prejudice or, alternatively, that we render judgment dismissing some
of Wilkins’s claims with prejudice:
(1)            
Wilkins’ health
care liability claim should be dismissed because Dr. Lapuerta’s amended expert
report failed to set forth an objective standard of care for the “conservative
approach” and for Wilkins’ postoperative care.
(2)            
Wilkins’ health
care liability claim based on any nonmeritorious theory of liability should be
dismissed.  
In response, Wilkins asserts that Marino is asking the Court
to reverse a substantive holding that the trial court never made.  Wilkins notes that the trial court expressly
declined to address the adequacy of Lapuerta’s report because it held that
Marino waived objections to the report by failing to object to two of three
advanced theories of liability.  She
urges us to restrict our consideration to that waiver issue and hold that the
trial court correctly determined that (1) Marino waived her objection to at
least one liability theory in Lapuerta’s report by failing to object in
response to Lapuerta’s original report, and (2) under this Court’s decision in Certified EMS, Inc. v. Potts, 355 S.W.3d
683 (Tex. App.—Houston [1st Dist.] 2011, pet. filed), Wilkins’s entire case can
proceed because there is at least one liability theory within a cause of action
Marino did not object to.  Finally,
Wilkins asserts that her report was substantively adequate, which she argues
precludes the relief Marino requests if the Court decides to address this issue
in the first instance, despite the trial court not having reached it. 
ANALYSIS
The trial court expressly declined to address the substance
of Marino’s objections because it concluded that (1) Marino failed to object to
all the theories advanced in Lapuerta’s report, and (2) Wilkins’s entire case
could move forward if there was an unobjected-to theory in Lapuerta’s
report.  Because it was the basis of the
trial court’s denial of Marino’s motion to dismiss, we begin with the question
of whether Potts supports denial of
Marino’s motion to dismiss if Marino did not timely object to all of Wilkins’s
theories of liability. 
A.  
Certified EMS v. Potts
In Potts, the
plaintiff sued complaining of a male nurse’s inappropriate sexual conduct
during a hospital stay.  355 S.W.3d at
685–86.  It was later discovered that the nurse, Les
Hardin, was not an employee of the hospital, but instead employed by Certified
EMS, a nurse-staffing agency.  Id. at 686.  Potts sued Certified EMS “asserting that it
was vicariously liable for Hardin’s conduct under a respondeat superior theory
and directly liable for its own negligence in training and supervising Hardin.”  Id.  
Potts served her expert reports under section 74.351, and
Certified EMS objected to the reports and sought dismissal.  Id.  After the trial court denied the motion to
dismiss, Certified EMS brought an interlocutory appeal to this Court.  Id.
at 685, 687–88.  In reviewing the sufficiency of Potts’s
reports and Certified EMS’s objections, we determined that the experts’ reports
adequately supported “Potts’s theory that Certified EMS is vicariously liable
under the doctrine of respondeat superior,” but did not support her claim that
“Certified EMS might be directly liable for its own conduct.”  Id.
at 687.  
We framed the issue presented as “whether the expert report
must address both vicarious and direct liability theories for both theories to
move past the expert report stage or whether a report adequate as to one of
those theories is sufficient for the entire cause of action to move to the next
stage.”  Id. at 690.  To resolve that
question, we looked to “(1) the law concerning construction of a statute, (2)
the plain language of the statute, (3) the objectives of the legislation and
consequences of the construction of the statute, and (4) the conflict in the
existing case law.” Id.
After analyzing each, we concluded that “if the claimant
timely serves an expert report that adequately addresses at least one liability
theory against a defendant health care provider, the suit can proceed,
including discovery, without the need for every liability theory to be
addressed in the report.”  Id. at 693 (citing Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 123 n.3 (Tex. App.—Houston
[14th Dist.] 2009, no pet.) (explaining that dismissal of health care liability
claim was not warranted because expert report satisfied section 74.351(r)(6)’s
requirement with respect to alleged deviation from standard of care during
surgery “regardless of whether [the] report also satisfies section 74.351(r)(6)’s
requirements with respect to [doctor’s] alleged deviations from standard of
care before surgery.”)).[2]         
Marino contends that Potts
is factually distinguishable from this case because the expert in Potts “made no attempt to address the
direct liability theory of recovery.” 
Thus, Marino reasons, the trial court in Potts “necessarily treated the direct liability claim as if it had
been discovered later and added in an amended petition,” such that the court
was “given no opportunity to evaluate the adequacy of the reports as to the
direct liability claims.”  In contrast,
“the reports in this case were not silent as to one or more theories of
recovery,” so the court “was given the opportunity to evaluate the adequacy of
the reports with respect to all theories of recovery.”  Accordingly, Marino argues, the “case should
not be allowed to proceed on the theories that were not properly addressed by
the expert reports because they are clearly nonmeritorious theories of
liability.” 
Wilkins responds that such a distinction is not supported by Potts, and asserts that “it would be a
curious rule that punished a plaintiff for presenting in an expert report all—or at least, more than one—of the liability theories that she
intended to rely on at trial while potentially rewarding her for ‘hiding the
ball.’”  
B.   Under Potts, the trial court’s denial of
Marino’s motion was proper if there is at least one unobjected-to theory of
liability.
We agree with Wilkins that Potts supports denial of a motion to dismiss if at least one valid
liability theory is included in an expert report.  In Potts,
we recognized a distinction between theories of liability and causes of action
in the context of healthcare liability claims. 
Potts, 355 S.W.3d at 691–92. 
We noted that the supreme court had described a cause of action as “a
fact or facts entitling one to institute and maintain an action, which must be
proved to order to obtain relief,” and as a “group of operative facts giving
rise to one or more bases for suing; a factual situation that entitles one
person to obtain a remedy in court from another person.” Id. at 691 (quoting In re
Jorden, 249 S.W.3d 416, 421 (Tex. 2008)). 

We concluded that the plain language of section 74.351
focuses “on a cause of action, rather than particular liability theories that
may be contained within a cause of action,” such that it “does not require an
expert report to set out each and every liability theory that might be pursued
by the claimant as long as at least one liability theory within a cause of
action is shown by the expert report.”  Id. at 691.  Consequently, we held that an entire cause of
action, or claim, must be dismissed when the expert report fails to set “out at
least one liability theory within a cause of action.”  Id.  But if there is “at least one liability
theory within a cause of action shown by the expert report,” the entire case
can move forward, including later-added theories, so long as the “additional
theory arises out of the same group of operative facts set forth in the expert
report and is asserted against the same defendant.” Id. at 692, 694. 
We decided this interpretation was most consistent with the
legislative intent.  Recognizing that an
expert report is simply a pre-discovery threshold “over which a claimant must
proceed to continue a lawsuit,” we noted its two purposes: “(1) to inform the
defendant of the specific conduct the claimant is questioning, and (2) to
provide a basis for the trial court to conclude that the claim has merit.” Id. at 692 (quoting Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex. 2008)).  “Once the expert report requirement is met,
the gate-keeping purpose has been achieved, and the claimant’s case may
proceed, including full discovery.”  Id.
Certified EMS filed a motion for rehearing in Potts arguing, as Marino does here, that
the trial court should (1) evaluate each liability theory within a cause of
action, (2) make a determination at the expert-report stage about whether that
theory, as presented in the report, is meritorious, and (3) dismiss any
liability theory within a cause of action that is not adequately set out in the
report, while allowing other liability theories within that same cause of
action to move forward.  Id. at 696–97. 
We considered and rejected that argument, concluding that it was not
consistent with rule 74.351’s language or its purpose:
If we were to narrowly construe the word “claim” to mean a particular
liability theory—rather than the group of operative facts giving rise to one or
more basis for suing—the dismissal contemplated by section 74.351(b) would
require dismissal with prejudice only as to that particular theory.  This is contrary to the intent of the statute
to dismiss early a defendant from a lawsuit.  See Tex. Civ. Prac. & Rem. Code  Ann. § 74.351(b). . . . 
. . . .
Because the intent of the Legislature is to require the early dismissal
of the entire cause of action from frivolous lawsuits filed against defendants,
we are unpersuaded by Certified EMS’s argument that our decision would allow a
plaintiff, after the expert report filing stage, to later dismiss vicarious
liability theories and pursue direct liability theories never presented in an
expert report.  As we have noted above,
the purpose of the expert report is to serve as a gatekeeper that allows nonfrivolous
causes of action against a defendant to move forward past an initial stage so
that full discovery concerning the lawsuit may take place.  After full discovery has taken place, a
plaintiff's approach to a lawsuit might vary from its initial approach, which
is permitted under the expert report statute, as long as the liability theories
underlie the same cause of action. See In
re Jorden, 249 S.W.3d at 421 (explaining that “health care liability claim”
includes potential claims not yet filed).
  Id.
at 693–94.
Under Potts, the
trial court correctly concluded that if Marino did not timely object to at
least one theory of liability in Lapuerta’s report, Marino’s motion to dismiss
should be denied.  We thus overrule
Marino’s second issue.   
SCOPE OF MARINO’S OBJECTIONS   
We now address Marino’s argument that the trial court’s
conclusion that Marino failed to object to at least one theory of liability is
erroneous.  To do so, we must determine
which objections were timely and before the trial court when it denied Marino’s
second motion to dismiss—the decision that is the subject of this appeal. 
Lapuerta’s original report included: 
(1)            
his qualifications;
(2)            
three standards
of care—(a) surgery by a qualified plastic surgeon, (b) conservative approach
to resection, and (3) postoperative use of bandages and girdles;
(3)            
three breaches of
the standard of care—(a) performance of liposuction by unqualified and inexperienced
doctor, (b) failure to take a conservative approach to resection, and (c)
postoperative failure to prescribe compressive bandages and girdles;
(4)            
causation—these
breaches caused Wilkins’ damages, and will require extensive additional
treatment to correct, if even possible.   
      
Marino’s objections to this report were (1) that Lapuerta is
not qualified because the report did not establish that Lapuerta had experience
or expertise with Smart Lipo, Lipo ex, and mesotherapy, and, further, that
Lapuerta’s admission that he is not familiar with Lipo ex demonstrates his
apparent lack of experience and the conclusory nature of his opinion, and (2)
that Lapuerta’s conservative approach is too vague and conclusory because it
does not explain how much fatty tissue should be removed, or how that is
determined.  
In response, Lapuerta prepared an amended expert report that
expanded on his description of the conservative approach in the standards of
care section.  The remainder of the report
remained unchanged.    
Marino’s objections and second motion to dismiss: (1) repeat
the objection that the “conservative approach” standard of care does not
sufficiently describe any objective standard of care, (2) added objections to Lapuerta’s
opinion that Marino lacked qualifications to perform liposuction surgery and to
the allegation that she should have used of bandages and girdles
post-operation, arguing that these are “impermissibly vague and conclusory and .
. .  there is no statement that these
breaches caused any injury,” and (3) dropped the objection that Lapuerta is
unqualified. 
A.  
Which Objections Matter?
Marino’s arguments in her brief rely on (1) objections made
only to the Lapuerta’s initial report, (2) objections made only to the amended
report, and (3) objections that remained similar or unchanged in both.  
Wilkins argues that the objections made only in response to
Lapuerta’s initial report, but not repeated in response to the amended report,
are waived.  See Gordon v. Sebine, 311 S.W.3d 190, 193 (Tex. App.—Beaumont 2010,
no pet.).  We agree.  See
Otero v. Leon, 319 S.W.3d 195, 204–05 (Tex. App.—El Paso 2010, pet.
denied) (holding objections lodged at first report were waived because
defendants did not object to amended report served after trial court granted
30-day extension to cure any deficiencies in report); Gordon, 311 S.W.3d at 193 (defendant who objected to initial expert’s
report was required to object, within 21 days, to expert’s second report to
avoid waiving objections to that report, even if second report added only
inconsequential references to physician standards and only material change
applied to a different defendant).  
Indeed, we lack jurisdiction over a trial court’s decision
overruling objections to an initial report if the trial court grants a 30-day
extension to file a new report.  Ogletree, 262 S.W.3d at 321 (“[I]f a
deficient report is served and the trial court grants a thirty day extension,
that decision—even if coupled with a denial of a motion to dismiss—is not
subject to appellate review.”); Potts,
355 S.W.3d at 690 (“Because the trial court granted an extension of time to
cure deficiencies in the reports originally filed by Potts, we lack
jurisdiction over Certified EMS’s appeal of the denial of its first motion to
dismiss.”).  Marino’s arguments here that
are predicated on her objections to the initial report and not repeated in her
objections to the amended report are waived. 

Wilkins further argues that new objections to Lapuerta’s
amended report that were not made to identical language in the initial report
were waived by the failure to make those objections within 21 days of service
of the initial report:
[T]he mere service of an amended report—one that changes nothing about
previously unobjectionable recitations—cannot provide a defendant a second bite
at the apple.  Dr. Marino does not get a
renewed opportunity to object to previously unobjected-to standards. . . .
Indeed, the entire purpose of requiring timely objection would be defeated by
allowing a defendant to raise new objections to an expert’s original statements
after the plaintiff has already used his or her one opportunity to provide an
amended report.   
This argument appears to present an issue of first
impression.  We are persuaded, however,
that the plain language of section 74.351, as well as the purpose behind it and
the consequences flowing from the potential interpretations support finding
that new objections made to sections in the amended report that remained
unchanged from the initial report are waived. 

In construing a statute, the Court’s primary goal is to
ascertain and give effect to the Legislature’s intent in enacting it.  In re
Canales, 52 S.W.3d 698, 702 (Tex. 2001).  The Legislature’s intent is derived by
examining the language used in the statute within the context of the entire
statute.  Upjohn Co. v. Rylander, 38 S.W.3d 600, 607 (Tex. App.—Austin 2000,
pet. denied).  If a statute is clear and
unambiguous, we need not resort to rules of construction or other aids to
construe it.  Id.  Even then, however, we
may consider, among other things, the statute’s objectives and the consequences
of a particular construction. See Tex. Gov’t Code § 311.023 (Vernon 2008);
In re Canales, 52 S.W.3d at 702.
We are concerned with the interplay between three subsections
of section 74.351.  They provide, in
relevant part:
Timing for objections. “Each defendant physician or health care provider
whose conduct is implicated in a report must file and serve any objection to
the sufficiency of the report not later than the 21st day after the date it was
served, failing which all objections are
waived.” 
§ 74.351(a) (emphasis added).  
Purpose of extension of time.  “”If an
expert report has not been served within the period specified by Subsection (a)
because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the
deficiency. 
§ 74.351(c) (emphasis added).  
Consequence of sustained objection.  “If as to a
defendant physician or health care provider, an expert report has not been
[timely] served . . ., the court, on the motion of the affected physician or
health care provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable
attorney’s fees and costs . . . ; and (2) dismisses
the claim with respect to the physician or health care provider, with prejudice
to the refilling of the claim. 
§ 74.351(b) (emphasis added).
In Potts, we
recognized section 74.351(a)’s purpose is to provide pre-discovery tool to
inform the defendant about the specific conduct making up the plaintiff’s
complaint and provide the trial court a basis to conclude the claim has merit
to proceed.  Potts, 355 S.W.3d at 692.  In
other words, it serves as a “gate-keeper,” TTHR,
L.P. v. Guyden, 326 S.W.3d 316, 319 (Tex. App.—Houston [1st Dist.] 2010, no
pet.), establishing a preliminary “threshold over which a claimant must proceed
to continue a lawsuit.” Murphy v. Russell,
167 S.W.3d 835, 838 (Tex. 2005).
By its plain language, section 74.351(a) provides that
objections not presented within 21 days after service of a 74.351 report are
waived.  Tex. Civ. Prac. & Rem. Code § 74.351(a).  The consequence of a waived objection at this
stage is that the plaintiff’s case is allowed to proceed as any other case,
reserving the trial court’s consideration of the merits of plaintiff’s claims
until summary judgment or trial.
Section 74.351(c) empowers the trial court to grant “one
30-day extension” to cure any deficiencies found by the trial court in the
initial report.  Implicit in this scheme,
the trial court finds deficiencies in an expert report only in response to
timely filed objections by the defendant, as the trial court is not empowered
to dismiss a plaintiff’s case for lack of a sufficient Chapter 74 expert report
except “on motion of the affected physician or health care provider.”  Tex.
Civ. Prac. & Rem. Code § 74.351(b).  The supreme court has admonished that “[t]he trial
court should err on the side of granting the additional time and must grant it if the deficiencies are
curable.”  Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (emphasis
added).  The statutory scheme thus contemplates
a safety-net for plaintiffs in which they are given one opportunity to cure
deficiencies pointed out in their expert report before their claims are
dismissed with prejudice.
Permitting defendants to remain silent about a particular
complaint when objecting to an initial report and then raise that objection in
response to an amended report containing the same recitations as an earlier
report would thwart the plaintiff’s opportunity to cure that deficiency because
the trial court is not empowered to grant another extension of time to cure the
objected-to deficiency.  The consequence of
that interpretation is dismissal of a plaintiff’s claim with prejudice without
the plaintiff being afforded the opportunity to cure a curable deficiency that
is not only contemplated, but required, by section 74.351(c).  Scoresby,
346 S.W.3d at 549 (extension required if deficiency is curable).[3]  
For these reasons, we hold that a defendant may not raise new
objections to recitations repeated in an amended report from the initial report
if the defendant did not properly raise those objections within twenty-one days
of the initial report.  Such objections
are waived.
B.  
The trial court did not abuse its discretion by
concluding that Marino’s objections to the portion of Lapuerta’s report
complaining of postoperative care was waived.     
One of two theories of liability that the trial court
concluded that Marino failed to object to is that Marino’s post-operative care
breached the relevant standard of care and that contributed to Wilkins’s
injury.  Lapurta’s initial report and
amended report contain identical recitations regarding Marina’s post-operative
care.  
Standard of Care section:  “The standard
of care also calls for the use of compressive bandages and girdles to alleviate
swelling in the post-operative period.”
Breaches of Standard of Care section:  “Dr. Marino
breached the standard of care in her post-operative care of Ms. Wilkins by
failing to prescribe the use of compressive bandages and girdles and, instead,
prescribed mesotherapy, lipodissolve, and some type of ‘lipo ex treatment.’  While I am uncertain of exactly what the
latter consists, it is most definitely not in line with the standard of care.”
Causation section: “Post operative treatment with mesotherapy and some
type of Vela Shape have not corrected this over resection and was also a breach
of the standard of care.” 
Conclusion section:  “In my
opinion, this treatment of Ms, Wendy Wilkins violates the standard of care in
the community in numerous breaches in the standard of care such as a
gynecologist performing body contouring at weekly intervals on the patients.
The postoperative therapy is also a breach on the standard of care.  These breaches caused the aforementioned
damages to Ms. Wilkins and will require extensive additional treatment to
correct, where correction is possible, at all.
Marino
in her brief here contends that “Wilkins’ argument and the trial court’s order
stating that Dr. Marino failed to object to the part of the report criticizing
her postoperative care are wrong.”  In
support, she first contends that her “initial objections clearly state that Dr.
Lapuerta’s criticism of Dr. Marino’s postoperative care is conclusory, as
follows:”
Defendant objects to the report of Dr. Lapuerta for the following
reasons.
. . .
  Dr. Lapuerta states that
Defendant was negligent for prescribing mesotherapy, lipodissolve, and “some
type of lipo ex treatment.”  Dr. Lapureta
even states that he does not know what the latter consists of, but he concludes
it is most definitely not in line with the standard of care.  In other words, Dr. Lapuerta is saying that,
even though he is not familiar with the treatment, he is confident that it is
not within the standard of care.  This
criticism by Dr. Lapuerta demonstrates his apparent lack of
experience/expertise and the conclusory nature of his opinion.  
Marino
acknowledges that this objection did not result in any change in Lapuerta’s
discussion of the Marino’s postoperation care in his amended report—the
language remained identical.  She asserts
though that her objections to the amended report again adequately objected to
Lapuerta’s opinions about post-operative care:
The amended report also contains broad statements that the standard of
care was breached by Defendant’s alleged . . . postoperative misuse of bandages
and girdles . . . . The report fails to provide any detail about the type of
postoperative bandages that should be used or the length of time they should be
applied.  Defendant objects to these
allegations because they are impermissibly vague and conclusory and because
there is no statement that these alleged breaches caused any injury.  
According
to Marino, any “contention that Dr. Marino failed to make known her objections
to Dr. Lapuerta’s reports as they pertain to her postoperative care is without
merit.”  
In addition, she contends that “Wilkins’ waiver argument
misunderstands the specific statutory element that Dr. Marino contends was
lacking in Dr. Lapuerta’s reports.”  She
asserts that her objections were to Lapuerta’s opinion that “Dr. Marino’s
postoperative care breached the standard of care.”  Wilkins’s waiver argument, according to
Marino, focuses instead on the standard of care element. 
Wilkins responds that Marino’s objections to the initial
report cannot be fairly read to have conveyed to the trial court the arguments
that Marino now makes on appeal.  She
argues that the “requirement of prompt objection exists to inform both the
Court and the plaintiff of the nature and substance of a defendant’s complaints,”
and that when the objection “is so vague that it fails to identify any required
element that is lacking in the expert report—the goals of § 74.351(a) are not served” because
the court “receives no guidance as to what information the defendant claims to
lack, and the plaintiff receives no information concerning where any deficiency
lies.”  
Wilkins also points out that Marino’s argument that she
objected to “the breach of the standard of care section” is unsupported by the
actual language of the objection and, in any event, that objection she relies
upon was made only in the objection to the initial report, not the amended
report.  Finally, Wilkins asserts that
“what was raised by objection is itself a factual determination for the trial
court to make and one that this Court may not disturb absent manifest abuse of
discretion.”  Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 (Tex. 1989).
The trial court did not abuse its discretion by finding that
Marino did not timely object to Lapuerta’s opinions related to Wilkins’s theory
of liability complaining that Morino breached a standard of postoperative care.  Marino’s objection related to postoperative
care in response to Lapuerta’s initial report—i.e., that the postoperative care
“criticism by Dr. Lapuerta demonstrates his apparent lack of experience/expertise
and the conclusory nature of his opinion”—is couched in terms
of Lapuerta’s alleged lack of qualifications to opine about postoperative care.[4]  Marino’s objections to Lapuerta’s identical opinions about Marino’s
postoperative care in his amended report are that they “are impermissibly
vague, and conclusory and . . . there is no statement that these alleged
breaches caused any injury.”    
Notwithstanding the use of the word “conclusory” in both
objections, we hold that the trial court could have concluded that the
objections related to Laupuerta’s opinions about Wilkins’s postoperative care
in response to the amended report were new and thus waived as untimely.  The context of the “conclusory” complaint in Marino’s
objections to the initial report, i.e., appended to an argument that
Lapuerta’s lack of familiarity with a postoperative procedure rendered him
unqualified, is different than the context of the “conclusory” complaint in the
objections to the amended report, i.e., related to (1) Lapuerta’s failure to
opine about specific type of postoperative bandages should be used or how long
they should be applied, (2) Lapaurta’s alleged failure to connect causally
postoperative care and injury.  Cf. RGV Healthcare Assocs., Inc. v. Estevios,
294 S.W.3d 264, 269–70 (Tex. App.—Corpus Christi 2009, pet. denied) (objection
that expert report was conclusory did not preserve objection that report was
insufficient as to causation, where conclusory objection referenced the wrong report
and the facts it referenced were irrelevant to argument on appeal).  
The trial court did not abuse its discretion by concluding
that Marino waived her objection to Lapuerta’s opinion that Wilkins’s
postoperative treatment breached the applicable standard of care and caused
injury.  
C.  
The trial court did not abuse its discretion by
concluding that Marino’s objections to the portion of Lapuerta’s report
complaining that Marino was not qualified was waived.
Lapuerta’s other theory of liability that the trial court
concluded that Marino failed to object to is that Marino’s alleged lack of
qualifications or skill to perform liposuction caused Wilkins’s injury.  Lapurta’s initial report and amended report
contain identical recitations regarding this theory:  
Standard of Care section:  “The standard
of care calls for liposuction procedures to be performed by qualified and
experienced plastic surgeons.”
Breaches of Standard of Care section:  “I have grave
doubts about Dr. Marino’s qualifications to perform liposuction
procedures.  I do not know of any
accredited hospital or outpatient surgical facility that would allow an OB/GYN
physician to perform liposuction.  It
does not appear that she has any certification in plastic surgery or any
particular experience in that area.   
Under the circumstances, her mere performance of this procedure was a
breach of the standard of care.” 
. . . .
“Both her approach to the procedure—aggressively
resecting tissues in a single procedure—and
her ultimate performance of that procedure were breaches of the standard of
care.”  
Causation section: “The over resection was itself breach of the
standard of care and, I believe, resulted from the performance of the
liosuction procedure by an unqualified surgeon.”
. . . .
“Finally, I am concerned that an obstetrician and gynecologist who is
not a qualified plastic surgeon is performing plastic surgery and body
contouring on patients . . . . I believe this requires further investigation.”     
Conclusion section:  “In my
opinion, this treatment of Ms. Wendy Wilkins violates the standard of care in
the community in numerous breaches in the standard of care such as a
gynecologist performing body contouring at weekly intervals on the patients. .
. . These breaches caused the aforementioned damages to Ms. Wilkins and will
require extensive additional treatment to correct, where correction is
possible, at all.”  
Marino’s objections to Lapuerta’s initial report makes no
reference to these allegations about Marino’s alleged lack of
qualifications.  Marino’s objections to
Lapuerta’s amended report references the “amended report[’s] . . . broad
statements that the standard of care was breached by [Marino’s] alleged lack of
qualifications to perform surgery” and asserts that “[t]he report does not
state that these alleged breaches caused injury to” Wilkins.  
Marino does not rely on her objections to the amended report
here; instead, she argues that Lapuerta’s theory that she is an unqualified
surgeon are inseparably linked to the other theories of liability such that no
separate objection was required.    She thus
contends that by timely objecting to Lapuerta’s assertions of negligence
relating to Marino’s approach to the procedures and her postoperative care, she
implicitly objected to Lapuerta’s qualification theory as well, as the
assertion that she is unqualified, “standing alone, states no claim for medical
negligence.”  Wilkins disagrees that her
theories are inextricably linked, and further asserts that while Lapuerta could
have expanded this theory in his amended report, “neither he nor Wilkins nor
the trial court was made aware of any need to do so because of Dr. Marino’s
lack of objection.”    
We conclude the trial court did not abuse its discretion by
finding that Marino waived her objection to Lapuerta’s opinion that her alleged
lack of qualifications to perform surgery caused Wilkins’s injury.  Section 74.351(r)(6) provides an expert
report must contain expert’s opinions on three statutory elements: standard of
care, breach, and causation.  Palacios, 46 S.W.3d at 877–78. 
Lapuerta’s reports clearly articulate that Marino’s lack of
qualification as a plastic surgeon violated the applicable standard of care and
that caused Marino’s injury.  Regardless
of whether this theory is viable, Marino was required to object to this theory
within twenty one days if her argument can serve as a basis to dismiss
Wilkins’s claims.  See Ogletree, 262 S.W.3d at 318, 321–22 (rejecting hospital defendant’s
argument that no timely objection to nurses’ expert reports implicating its
conduct was required because only a physician can opine as to causation such
that the nurses’ reports  were “not
merely deficient, but nonexistent”).[5]
We overrule Marino’s first issue.  
CONCLUSION
We affirm the trial
court’s denial of Marino’s motion to dismiss. 

 
 
 
 
                                                                   Sherry
Radack
                                                                   Chief
Justice 
 
Panel
consists of Chief Justice Radack and Justices Higley and Brown.
 
 
 
 
 




[1]
          The medical records are not
before us, and we accept the factual statements in Lapuerta’s report for the
limited purpose of this appeal.  Shenoy v. Jean, No. 01-10-01116-CV, 2011
WL 6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. filed)
(mem. op.) (citing Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 53 (Tex.  2002)
(review of Chapter 74 report is limited to four corners of report)).  
  


[2]
          In
doing so, we recognized that the “[i]ntermediate courts of appeals are split
concerning whether an expert report adequate as to at least one liability
theory within a cause of action is sufficient to permit other liability
theories within the same cause of action to proceed although the expert report
is deficient with respect to the other theories,” and that the supreme court
has not yet addressed the issue.  Potts, 355 S.W.3d at 394–95.  A petition
for review in Potts has been filed in
the supreme court.


[3]
          Our resolution of this issue is consistent with the Fourteenth Court of
Appeals’ recent analysis of a similar issue. 
In Neason v. Buckner, the
plaintiff served the defendant doctor with its expert report along with its
petition.  352 S.W.3d 254, 256 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). 
More than twenty-one days after service of this report, the defendant
sought dismissal of three of plaintiffs’ claims, arguing that, although
pleaded, they were not even mentioned in the expert report.  Id.  The trial court agreed, granted the
defendant’s objections, and granted the plaintiff a 30-day extension to file an
amended report to cure the deficiencies. 
Id.  After the plaintiff filed a timely
supplemental expert report, the defendant again moved to dismiss the same three
claims.  Id.  The trial court denied
the motion to dismiss, and the defendant appealed. Id.  The court of appeals did
not reach the substance of the objections to the three claims, instead agreeing
with the plaintiff that because the defendant waived all objections to the
original report by failing to timely object, objections to the supplemental
report were also waived.  Id. 
at 259.  The court held that
because the defendant had waived objections to the initial report, “the trial
court’s order to the plaintiff to cure the report’s deficiencies is
‘superfluous and procedurally inconsequential.’”  Id.;
see also Binzer v. Alvey, No.
02-11-00316-CV, __ S.W.3d __, 2012 WL 171107, at *1–2 (Tex. App.—Fort Worth January 19, 2012, no
pet. h.) (expressly adopting Neason’s reasoning).  Although the trial court here did not specify
the grounds for sustaining Marino’s objections to Lapuerta’s initial report and
granting a 30-day cure period, based on Neason’s
reasoning, Marino’s new and additional objections to Lapuerta’s report (that
could have been timely raised in response to the initial report, but were not),
were waived.


[4]
          Marino’s objections to Lapuerta’s qualifications were abandoned in her
objections to Lapuerta’s amended report. In the argument section of her brief,
Marino nonetheless argues that Lapuerta’s amended expert report is “fatally
deficient because Dr. Lapuerta does not establish that he has any expertise or
experience with the specific liposuction techniques in question.”  She notes that she objected to Dr.
“Lapuerta’s lack of expertise regarding the liposuction techniques in question
within 21 days of Wilkins’ service of her expert report,” and that Lapuerta
“failed to cure this deficiency” in his amended report.  Wilkins responds that “Marino did not renew
her objection concerning Dr. Lapuerta’s qualifications” in her objections to
the amended report and her second motion to dismiss—the denial of which is the
subject of this appeal.  To the extent
that Marino’s inclusion of this argument in her brief can be read as a request
for us to reverse the trial court’s denial of her first motion to dismiss—in
which she did include an objection to Lapuerta’s qualifications—we lack
jurisdiction over this issue for reasons previously explained.  Ogletree,
262 S.W.3d at 321.


[5]
          Our opinion should not be read
to endorse the viability of this theory,
but only to hold that if a plaintiff’s expert clearly articulates an allegedly
invalid theory of liability in an expert report, the defendant must timely
object to the report on that basis to obtain dismissal at that stage.  Without such timely objection, the defendant
will have to wait to until later in the proceedings—i.e., summary judgment or
trial—to challenge that theory.  


