                                    NO. 07-04-0455-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                    JANUARY 27, 2005

                          ______________________________


   IN RE GARY L. BROWN, M.D., P.A., AND GARY L. BROWN, M.D., RELATORS

                          _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                         OPINION


       In this original proceeding, relators Gary L. Brown, M.D., P.A., and Gary L. Brown,

M.D. (collectively, “Brown”), defendants in a health care liability claim,1 seek writ of

mandamus directing the trial court to vacate an order granting a 30-day grace period to file

an expert report. We conditionally grant the petition.




        1
          See TEX . REV . CIV . STAT. ANN . art. 4590i (Vernon Supp. 2003). Article 4590i was
repealed effective September 1, 2003. Health-care liability claims are now governed by
TEX . CIV. PRAC . & REM . CODE ANN . ch. 74 (Vernon Pamph. Supp. 2004). References in this
opinion will be to the former statute and its provisions. References to subsections of article
4590i will be by reference to “section __” or “§ __.”
                                     BACKGROUND


       Real party in interest Adam Fraley filed a health care liability claim against Brown,

a urologist, alleging failure to timely diagnose Fraley’s testicular cancer. Pursuant to his

obligation to file an expert report, Fraley filed a report from Badrinath Konety, M.D. Brown

filed a motion to dismiss, asserting that Konety’s report was insufficient. In response,

Fraley asserted that the report was sufficient, but also filed a motion for a grace period

under section 13.01(g) in which he claimed that, if Konety’s report was insufficient, then he

was entitled to a 30-day grace period because he mistakenly believed that the report

satisfied the requirements of section 13.01(r)(6). After hearing, the trial court found

Konety’s expert report insufficient, granted Fraley’s motion for grace period and denied

Brown’s motion to dismiss.


       Referencing Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003), In re Rodriguez, 99

S.W.3d 825, 827-28 (Tex.App.–Amarillo 2003, orig. proceeding), and In re Windisch, 138

S.W.3d 507, 510 (Tex.App.–Amarillo 2004, orig. proceeding), Brown asserts that the trial

court abused its discretion in granting Fraley a 30-day grace period. Brown prays for

issuance of a writ of mandamus directing the trial court to vacate its order granting Fraley

a grace period to file an expert report, and to dismiss Fraley’s suit with prejudice.


       Fraley first urges that mandamus is not appropriate to correct an improper grant of

a grace period because an adequate remedy is available by appeal. He also maintains that

if Konety’s report was not sufficient, the insufficiency was not intentional or the result of




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conscious indifference, but was due to an accident or mistake, and the trial court did not

abuse its discretion in granting a grace period.


       We will address the issues in the order presented by the parties.


                            AVAILABILITY OF MANDAMUS


       Writ of mandamus is an extraordinary remedy that will issue only (1) to correct a

clear abuse of discretion or the violation of a duty imposed by law, when (2) there is no

adequate remedy by law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305

(Tex. 1994) (orig. proceeding). A court abuses its discretion when it acts unreasonably,

arbitrarily, or without reference to guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A court also abuses its discretion

by a clear failure to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992).


       This court has determined that an erroneous grant of a grace period denies a party

an adequate remedy by law. See In re Rodriguez, 99 S.W.3d at 827-28; In re Morris, 93

S.W.3d 388, 390 (Tex.App.–Amarillo 2002, orig. proceeding). We continue to adhere to

such view. See In re Windisch, 138 S.W.3d at 510. Accordingly, if the trial court abused

its discretion in granting the grace period, mandamus is available to remedy the error.


                           DID THE EXPERT REPORT OMIT
                                REQUIRED ELEMENTS

       The trial court found that Konety’s report did not adequately address the elements

of standard of care and causation. Fraley recognizes that when a health care claim expert

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report is inadequate because it omits one or more of the elements required by section

13.01(r)(6), then the assertion that the claimant believed the report to be adequate and that

the inadequacy was due to a mistake or accident does not negate a finding of intentional

conduct or conscious indifference.       See Walker, 111 S.W.3d at 65; Horizon/CMS

Healthcare Corp. v. Fischer, 111 S.W.3d 67, 68 (Tex. 2003). However, he attempts to

factually distinguish Walker and Horizon/CMS Healthcare Corp. from his situation. Fraley

asserts that Konety’s report did not omit any of the required elements.


       In his report, Konety asserts that he is familiar with the standard of care required of

a urologist in evaluation, diagnosis, and treatment of the type of tumor involved in Fraley’s

case. Konety notes that a sonogram ordered by Brown and taken in April 2002, showed

that Fraley had an extratesticular mass with vascularity, Brown’s working diagnosis was a

benign cholesterol pearl, and Brown decided to observe the mass. At a follow-up interval

of one year, the mass had enlarged, was diagnosed as malignant, and was surgically

excised. Konety’s report then outlines the remainder of Fraley’s course of treatment and

gives a prognosis.


       Konety opines in his report that at the time of the sonogram in April 2002, presence

of vascularity within the mass “should have raised reasonable concerns” regarding a

possible malignancy. The report also sets out that it would have been “more in keeping

with the standard of care” for Brown to have considered either reevaluation after a shorter

follow-up period to closely monitor the mass, or to have advised surgical intervention.

Konety does not, however, express an opinion in the report that a reasonably prudent

urologist would have diagnosed Fraley’s testicular mass as a malignancy following the April

                                             -4-
2002 consultation, or that certain specific actions or courses of action would have been

taken by a reasonably prudent urologist to diagnose Fraley’s mass.


       It is the substance of the opinions in question, not the technical words used, that

determines whether a report complies with statutory mandates. See Bowie Mem’l Hosp.

v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). Merely inserting the words “standard of care” in

a report, without setting out or describing what actions or courses of action are

encompassed within the standard, does not substantively express a standard of care. The

conclusion follows that Konety’s report omitted the standard of care which § 13.01(r)(6)

requires to be included.


       Because Koenty’s report omitted an element required by the statute, a belief on

behalf of Fraley and his attorney that the report complied with the statute is not sufficient

to support a finding of accident or mistake. See Walker, 111 S.W.3d at 64-65. Under such

circumstances the trial court was not authorized by § 13.01(g) to grant a grace period and

abused its discretion in doing so. Id.


       Our determination that Konety’s report omitted the standard of care obviates the

need for us to address whether his report addresses the causation element, as required

by § 13.01(r)(6). See TEX . R. APP . P. 47.1.


                                      CONCLUSION


       Brown is entitled to the relief sought. We conditionally grant the petition for writ of

mandamus. We are confident the trial court will grant the relief to which Brown is entitled


                                                -5-
pursuant to § 13.01(e) and this opinion. We will direct the clerk to issue the writ only in the

event the trial court does not do so.




                                                    Phil Johnson
                                                    Chief Justice




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