Jerica Ticer v. Theodore B. Shybut MD and Mark Adickes, MD

• Court: Court of Appeals of Texas
• Decided: April 22, 2025
• Docket: 01-23-00468-CV
• Status: Published

Opinion

Opinion issued April 22, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00468-CV ——————————— JERICA TICER, Appellant V. THEODORE B. SHYBUT, M.D. AND MARK ADICKES, M.D., Appellees

On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2022-23649

MEMORANDUM OPINION

Appellant Jerica Ticer sued appellees Theodore B. Shybut, M.D. and Mark

Adickes, M.D. (together, defendant doctors) for medical negligence. As required by

the Texas Medical Liability Act (TMLA), Ticer served the defendant doctors with

an expert report. See TEX. CIV. PRAC. & REM. CODE § 74.351(a), (r)(6) (requiring claimant who asserts “health care liability claim” to serve expert report describing

applicable standard of care, how defendant’s conduct failed to meet standard, and

how such failure caused injury). After the trial court sustained the defendant doctors’

objections to the report, Ticer supplied a revised expert report. The defendant doctors

objected that the revised report’s author was not qualified to render an expert opinion

in the case and that the report’s contents were insufficient to satisfy the TMLA’s

requirements. Based on their objections, the defendant doctors moved to dismiss

Ticer’s suit. The trial court sustained the objections and dismissed Ticer’s claims.

See id. § 74.351(b) (requiring dismissal of health care liability claim on defendant’s

motion when claimant fails to timely comply with expert report requirement).

On appeal, Ticer seeks reversal by asserting that her revised expert report

complied with the TMLA. In so doing, she addresses some, but not all, of the

grounds asserted below supporting dismissal of her claims. Under binding precedent,

when the appellant fails to challenge every ground that could have support dismissal,

we must affirm. We thus affirm here.

Background

In her petition, Ticer asserted a negligence cause of action against the

defendant doctors. She stated that Dr. Adickes performed four surgeries on her to

relieve pain in her hip and leg. She alleged that the surgeries were unsuccessful and

that she came “under the care” of Dr. Shybut with respect “to the next steps in her

2 course of treatment.” She claimed that both doctors “ceased communications” with

her despite her repeated attempts to reach them. She asserted that they “abandoned”

her without providing “timely notice of this abandonment.” She alleged this caused

her to “miss[] opportunities to seek competent care in a timely manner due to the

expectation that treatment from [the defendant doctors] would continue.”

Ticer served the defendant doctors with an expert report prepared by Dr.

Ashok Tholpady, a pathologist. The defendant doctors objected both to Dr.

Tholpady’s qualifications and also to the sufficiency of the report’s contents under

Section 74.351 of the TMLA. The trial court sustained the objections and gave Ticer

30 days to cure the deficiencies in the report.

Ticer served the defendant doctors with a revised report prepared by Dr.

Tholpady. The defendant doctors again objected that Dr. Tholpady was not qualified

to render an opinion in the case. They also objected that the revised report was

insufficient to meet the requirements of Section 74.351. Among their objections, the

defendant doctors asserted that the revised report:

• “[did] not identify the standard of care that was applicable to each of the

Defendants, nor how or when each of the Defendants breached the

standard of care”;

3 • “improperly lump[ed] both Defendants together and fail[ed] to set forth

the specific standard of care, breach and causation opinions as to each

Defendant”; and

• “[did] not explain any of the components of proximate cause for any

Defendant.”

Based on the objections, the defendant doctors moved to dismiss Ticer’s

claims. The trial court signed an order (1) sustaining the defendant doctors’

“objections” to the revised expert report, (2) granting their motion to dismiss, (3)

dismissing Ticer’s claims with prejudice, and (4) ordering Ticer to pay the defendant

doctors $35,000 in attorney’s fees and costs.

In one issue on appeal, Ticer contends that the trial court erred in dismissing

her claims under the TMLA. She argues that Dr. Tholpady was qualified to submit

an expert report and that the revised report “met the causation requirement.” But

Ticer does not address the defendant doctors’ objections—sustained by the trial

court—that Dr. Tholpady did not adequately address the applicable standard of care.

The TMLA Contains Expert Report Requirements

The TMLA requires healthcare liability claimants to serve a defendant

healthcare provider with a timely and adequate expert report. TEX. CIV. PRAC. &

REM. CODE § 74.351(a), (l). A trial court may grant a motion challenging the

adequacy of an expert report if it appears to the court “that the report does not

4 represent an objective good faith effort to comply with the [TMLA’s] definition of

an expert report.” Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018) (quoting TEX.

CIV. PRAC. & REM. CODE § 74.351(l)); see also TEX. CIV. PRAC. & REM. CODE

§ 74.351(r)(6) (defining “expert report” as one that gives fair summary of opinions

on standard of care, breach, and causation). The TMLA “allows a claimant a thirty-

day period to cure deficiencies before the trial court finally determines that the report

is inadequate and the claim must be dismissed.” Scoresby v. Santillan, 346 S.W.3d

546, 556 (Tex. 2011).

To be adequate, an expert report must represent “an objective good faith effort

to provide a fair summary of the expert’s opinions . . . regarding 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.” Walker v. Baptist St. Anthony’s Hosp.,

703 S.W.3d 339, 342–43 (Tex. 2024) (quoting TEX. CIV. PRAC. & REM. CODE

§ 74.351(l), (r)(6)) (internal quotation marks omitted)). To satisfy the standard-of-

care requirement, “an expert report must identify a specific act the physician or

health care provider was required to perform or refrain from performing, and explain

how he or she failed to fulfill his or her duty.” Hanna v. Turner, No. 01-24-00005-

CV, 2024 WL 3259850, at *5 (Tex. App.—Houston [1st Dist.] July 2, 2024, no pet.);

see Baty, 543 S.W.3d at 694–95. If the standard of care can only be inferred from

5 the expert report, the report is inadequate. See Am. Transitional Care Ctrs. of Tex.

v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).

Failure to Challenge Every Dismissal Ground Results in Affirmance

“When a trial court issues an adverse ruling without specifying the grounds,

we presume the trial court considered all the asserted grounds supporting dismissal.”

Vo v. Iyer, No. 14-18-01051-CV, 2020 WL 3698032, at *2 (Tex. App.—Houston

[14th Dist.] July 7, 2020, no pet.) (affirming dismissal under TMLA); see RSL

Funding, LLC v. Pippins, 499 S.W.3d 423, 434 (Tex. 2016). An appellant must

attack all independent bases or grounds supporting the challenged judgment. See

RSL Funding, 499 S.W.3d at 434; Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d

676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

If an independent ground fully supports the judgment, but the appellant does

not challenge it, “we must accept the validity of that unchallenged independent

ground,” and “any error in the grounds challenged on appeal is harmless because the

unchallenged independent ground fully supports the complained-of ruling or

judgment.” Britton, 95 S.W.3d at 681. As a result, when an appellant does not

challenge an independent ground supporting the judgment, we must affirm. See RSL

Funding, 499 S.W.3d at 434; Britton, 95 S.W.3d at 681.

This principle of law requires affirmance here. Among their objections, the

defendant doctors asserted as independent grounds for dismissal that the revised

6 expert report “[did] not identify the standard of care that was applicable to each of

the Defendants” and “fail[ed] to set forth the specific standard of care” as required

by the TMLA. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); Walker, 703

S.W.3d at 342. In its dismissal order, the trial court expressly granted the defendant

doctors’ “objections” to the revised expert report without limiting its ruling to any

specific objections or grounds. Thus, on appeal, Ticer was required to challenge all

independent grounds supporting the dismissal order, including the ground that the

revised report failed to identify the applicable standards of care. See RSL Funding,

499 S.W.3d at 434; Britton, 95 S.W.3d at 681.

On appeal, Ticer challenges the dismissal order on the bases that Dr. Ashok

Tholpady was qualified as an expert and that the revised report sufficiently addressed

causation. Ticer failed to address the defendant doctors’ objections, sustained by the

trial court, to the revised report’s failure to identify the applicable standard of care.

But this was an independent ground supporting dismissal. Because Ticer does not

challenge the trial court’s dismissal of her claims on that ground, we must affirm the

trial court’s judgment on that basis. See RSL Funding, 499 S.W.3d at 434 (appellate

court correctly affirmed trial court’s order because appellant failed to challenge on

appeal one ground supporting order); Britton, 95 S.W.3d at 681 (appellate court must

affirm trial court’s judgment when appellant fails to attack all independent bases or

grounds supporting judgment); see, e.g., Vo, 2020 WL 3698032, at *2 (affirming

7 dismissal under TMLA because appellant failed to challenge on appeal all grounds

supporting dismissal).

We overrule Ticer’s sole issue.

Conclusion

We affirm the judgment of the trial court.1

Jennifer Caughey Justice

Panel consists of Justices Guerra, Caughey, and Morgan.

1 In their brief, the defendant doctors ask that we affirm the trial court’s judgment but also remand the case “back to the trial court for consideration of appellate costs and fees.” The trial court’s judgment awarded the defendant doctors $35,000 for “attorney’s fees and costs” but did not separately include conditional appellate attorney’s fees or appellate costs. See TEX. CIV. PRAC. & REM. CODE § 74.351(b)(1) (permitting award of attorney’s fees and costs to health care provider in order dismissing claims for failure to timely file expert report). In their motion to dismiss, the defendant doctors asked for “their reasonable attorney’s fees and costs of court incurred,” but they did not request appellate attorney’s fees and appellate costs. Nor does the record reflect what evidence of attorney’s fees was presented in the trial court. By seeking remand for an award of appellate attorney’s fees and costs, the defendant doctors seek to alter the trial court’s judgment by pursuing a more favorable judgment than awarded. A request to alter the trial court’s judgment can only be considered when the party seeking the alteration has filed a notice of appeal or provides “just cause” for granting the party more favorable relief. See TEX. R. APP. P. 25.1(c); Reich & Binstock, LLP v. Scates, 455 S.W.3d 178, 185 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The defendant doctors have not filed a notice of appeal or provided a reason for this Court to find “just cause.” Accordingly, we deny the defendant doctors’ request for remand for consideration of appellate attorney’s fees and costs. See TEX. R. APP. P. 25.1(c); Scates, 455 S.W.3d at 185. 8