Valley Baptist Medical Center - Brownsville v. Rosalinda Battles, Gerald Battles, as Surviving Spouse of Rosalinda Battles, Amanda Giselle Battles, as Surviving Child of Rosalinda Battles, and Jeremy Blake Battles, as Surviving Child of Rosalinda Battles

• Court: Court of Appeals of Texas
• Decided: March 2, 2015
• Docket: 13-14-00756-CV
• Status: Published

Opinion

ACCEPTED 13-14-00756-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/2/2015 4:08:08 PM DORIAN RAMIREZ CLERK

CAUSE NO. 13-14-00756-CV

IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS SITTING AT CORPUS CHRISTI - EDINBURG, 3/2/2015TEXAS 4:08:08 PM DORIAN E. RAMIREZ Clerk

VALLEY BAPTIST MEDICAL CENTER APPELLANT

VS.

ROSALINDA BATTLES, GERALD BATTLES, AS SURVIVING SPOUSE OF ROSALINDA BATTLES, AMANDA GISELLE BATTLES, AS SURVIVING CHILD OF ROSALINDA BATTLES AND JEREMY BLAKE BATTLES, AS SURVIVING CHILD OF ROSALINDA BATTLES APPELLEES

APPELLANT’S BRIEF

ON APPEAL FROM CAUSE NO. 2013-DCL-04983 IN THE 444TH JUDICIAL DISTRICT COURT OF CAMERON COUNTY, TEXAS

SCOTT T. CLARK ROGER W. HUGHES WILL HUGHES ADAMS & GRAHAM, L.L.P. P.O. Drawer 1429 Harlingen, TX 78551-1429 Phone: (956) 428-7495 ORAL ARGUMENT IS Fax: (956) 428-2954 REQUESTED

Attorneys for Appellant VALLEY BAPTIST MEDICAL CENTER IDENTITY OF THE PARTIES AND COUNSEL

1. Appellant:

Defendant Attorney Valley Baptist Medical Center- Scott T. Clark Brownsville sclark@adamsgraham.com Roger W. Hughes rhughes@adamsgraham.com Will Hughes willhughes@adamsgraham.com ADAMS & GRAHAM, L.L.P. P. O. Drawer 1429 Harlingen, TX 78551-1429 Phone (956) 428-7495 Fax (956) 428-3954

2. Appellees

Plaintiffs Attorneys Rosalinda Battles, Gerald Battles, as Robert Garza Surviving Spouse of Rosalinda jrobert@rgarzalaw.com Battles, Amanda Giselle Battles, as Myles R. Garza Surviving Child of Rosalinda Battles myles@rgarzalaw.com and Jeremy Blake Battles, as Law Office of Robert Garza, P.C. Surviving Child of Rosalinda Battles 1200 E. Harrison St. Brownsville, TX 78520 Phone (956) 544-1111 Fax (956) 544-1108

ii TABLE OF CONTENTS

Page:

IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. When the purported report is “no report,” no extension is permitted and the trial court must dismiss. . . . . . . . . . . . . . . . . . . . 1

B. Nurse O’Malley’s first report stated no opinions and was “no report.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Caselaw demonstrates the trial court was obligated to grant VBMC’s first motion to dismiss. . . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii TABLE OF AUTHORITIES

Page: Cases: Avila v. Jimenez, No. 13-13-00101-CV, 2013 WL 1500328 (Tex. App.–Corpus Christi 2013, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 3

Badiga v. Lopez, 253 S.W.3d 204 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fung v. Fischer, 365 S.W.3d 507 (Tex. App.–Austin 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754 (Tex. App.–Houston [1st Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5-7

Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255 (Tex. App.–San Antonio 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9

Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 2

Reddy v. Hebner, 435 S.W.3d 323 (Tex. App.–Austin 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685 (Tex. App.–San Antonio 2011, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) . . . . . . . . . . . . . . . . . . 1, 2, 5, 9

Sinha v. Thurston, 373 S.W.3d 795 (Tex. App.–Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 3

Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston [14th Dist.] 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iv STATEMENT OF THE CASE

This is an expert report appeal in a healthcare liability claim. Appellees

asserted medical negligence claims against appellant Valley Baptist Medical Center

(VBMC) and provided an expert report from a nurse, Erin K. O’Malley. C.R. 5-15,

40-48; R.R. IV, X-1. App. 1. VBMC challenged the report and moved to dismiss.

C.R. 35-38. The trial court granted a thirty day extension, and Nurse O’Malley

provided a revised report. C.R. 51-52, 63-66; R.R. IV, X-2. App. 2. VBMC again

moved to dismiss, and that motion was denied. C.R. 53-59, 75. App. 3.

ISSUES PRESENTED

1. Was the first report from plaintiffs’ expert, Nurse Erin K. O’Malley, “no

report” because it:

a) failed to say anything about the standard of care for VBMC;

b) failed to say anything about how VBMC violated any standard of care;

c) failed to say anything about how any breach of a standard of care by

VBMC caused the death of Ms. Battles; and

d) failed to offer any opinion opinion that appellees’ claims have merit?

2. If the first report was “no report,” did the trial court have discretion to grant an

extension to cure deficiencies in the report, or was the trial court obligated to

grant VBMC’s motion to dismiss?

v STATEMENT OF FACTS

On July 24, 2013, appellees sued Valley Baptist Medical Center (VBMC),

alleging that insufficient post-surgery monitoring of Rosalinda Battles caused

Battles’s death. C.R. 5. On November 21, 2013, VBMC received appellees’

purported expert report and C.V. from Nurse Erin K. O’Malley. C.R. 40. App. 1.

Nurse O’Malley wrote that she had reviewed an autopsy report, lab reports, and

medical records “regarding Mr. Bradford” (sic). C.R. 42; R.R. IV, X-1.

The remainder of Nurse O’Malley’s report stated:

Summary:

On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center for a routine cholecystectomy and was admitted to a short stay unit. The procedure was done without incident. The patients (sic) vital signs remained stable throughout the procedure, and in post-operative care. That evening around 5:30 pm the patient started complaining of headaches, nausea, and vomiting. At 6:12 pm the patient exhibited seizure activity. The patient lost consciences (sic), and a code was called. The patient was intubated, given Lovenox, and transferred to the intensive care unit. The patient was taken to CT scan, which showed minimal edema, and no intracranial bleeding. The CT angiogram of the chest showed no pulmonary embolism. The CT scan of the abdomen showed no fluid collection. The patient developed a sub arachnoid and subdural hemorrhage. This caused cerebral edema, hemorrhage, necrosis, herniation at the brain stem area which eventually caused death. The family was aware of her condition and decided that Ms. Battles should be taken off life support. C.R. 42; R.R. IV, X-1; App. 1.

Nurse O’Malley’s report made no other comment about the care provided to Ms.

Battles. C.R. 42; R.R. IV, X-1; App. 1.

VBMC filed objections to Nurse O’Malley’s report and a motion to dismiss.

vi C.R. 35. Appellees filed no response to VBMC’s motion to dismiss. The trial court

found that the report was deficient and granted a thirty day extension to cure the

deficiencies. C.R. 51-52; App. 2.

On February 7, 2014, appellees provided another report from Nurse O’Malley.

C.R. 65; R.R. IV, X-2. This second report added a section titled “Findings,” but even

this second report conceded “I cannot fully say that the standard of care concerning

the care of Mrs. Battles was breached.” C.R. 65; R.R. IV, X-2.

On March 12, 2014, VBMC filed objections to this second report and again

urged a motion to dismiss. C.R. 53. Appellees responded by arguing that VBMC’s

objections to the second report were untimely. C.R. 67.

As of December 3, 2014, the trial court had not yet ruled, and a status hearing

was held on the motion to dismiss. R.R. III, 5. At that hearing, the court invited

further arguments on the motion to dismiss. R.R. III, 7. VBMC argued that Nurse

O’Malley’s first report was “no report,” and the case should be dismissed on that

basis. R.R. III, 8-11. On December 10, 2014, the trial court denied VBMC’s second

objections and motion to dismiss. C.R. 75; App. 3.

vii SUMMARY OF THE ARGUMENT

This appeal concerns the trial court’s abuse of discretion with regard to Nurse

O’Malley’s first report and VBMC’s first motion to dismiss. Because Nurse

O’Malley’s first report was “no report,” the trial court had no discretion to grant an

extension of time to cure the report, but rather was obligated to grant the first motion

to dismiss. The court’s erroneous extension does not cure this abuse of discretion, and

the timeliness of VBMC’s second motion to dismiss is a moot issue.

Texas law distinguishes between deficient expert reports and purported reports

that are really no report at all. A thirty day extension may be granted to cure a

deficient report, but when the purported report is “no report,” then no extension is

permitted and the trial court has no option but to grant a motion to dismiss. Because

Nurse O’Malley’s first report never asserted VBMC did anything wrong, did not

implicate the conduct of any agent of VBMC, and gave no indication that appellees’

claim had merit, it was “no report” and the trial court was required to grant the motion

to dismiss rather than allow a thirty day extension.

ARGUMENT

A. When the purported report is “no report,” no extension is permitted and the trial court must dismiss.

A document qualifies as an expert report only if it contains a statement of

opinion by an individual with expertise indicating that the claim asserted by the

plaintiff against the defendant has merit. Scoresby v. Santillan, 346 S.W.3d 546, 549

1 (Tex. 2011), App. 4. An extension to cure deficiencies in a report may only be

granted if the report contains the opinion of an individual with expertise that the claim

has merit, and if the defendant’s conduct is implicated. Id. at 557, App. 4. A

document that fails to address the statutorily mandated elements set forth in Chapter

74 constitutes no expert report at all. Ogletree v. Matthews, 262 S.W.3d 316, 323

(Tex. 2007) (Willett, J., concurring).

If no expert report is timely served, the denial of a motion to dismiss is

appealable, even if the court grants an extension. Scoresby, 346 S.W.3d at 555; citing

Badiga v. Lopez, 253 S.W.3d 204, 207-08 (Tex. 2008). The Medical Liability Act

does not authorize an extension if no report is timely served. Scoresby, 346 S.W.3d

at 555; Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 761

(Tex. App.–Houston [1st Dist.] 2012, no pet.). Granting an extension not authorized

by section 74.351 does not preclude an appeal. Scoresby, 346 S.W.3d at 555, App.

4.

If the document never asserts that anyone did anything wrong, it cannot receive

an extension. Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255, 258 (Tex.

App.–San Antonio 2012, no pet.) quoting Scoresby, 346 S.W.3d at 558 (Willet, J.,

concurring). If the trial court responds to a motion to dismiss by erroneously granting

an extension, the defendant may appeal after the denial of a second motion to dismiss.

See Laredo Tex. Hosp., 363 S.W.3d at 258-59 (erroneous extension was not

2 immediately appealable, but appellate court ordered dismissal on appeal after denial

of second motion to dismiss because initial report was “no report”); cf. Avila v.

Jimenez, No. 13-13-00101-CV, 2013 WL 1500328 at *2-3 (Tex. App.–Corpus Christi

2013, pet. denied) (extension was granted, second motion dismiss was denied and

appeal then taken; court considered contention that pre-extension report was “no

report”).

A report that does not implicate the conduct of a defendant does not constitute

an expert report as to that defendant. Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex.

App.–Austin 2014, pet. filed); Sinha v. Thurston, 373 S.W.3d 795, 800 (Tex.

App.–Houston [14th Dist.] 2012, no pet.). When the purported report does not

constitute an expert report as to a defendant, the trial court does not have any

discretion to deny the defendant’s motion to dismiss. Id.

The 21-day deadline for objecting to the sufficiency of an expert report is only

triggered if the report implicates the defendant. Reddy, 435 S.W.3d at 328. If what

the plaintiff provides is “no report,” then the defendant’s obligation to object to the

report is never triggered. Haskell, 363 S.W.3d at 761.

B. Nurse O’Malley’s first report stated no opinions and was “no report.”

Nurse O’Malley’s first report was the kind of document that is “no report.” The

report simply described events during Ms. Battles’s stay at VBMC, without comment

on what should or should not have been done during the course of her care. C.R. 42;

3 R.R. IV, X-1; App. 1.

The only portion of the report that addresses Ms. Battles’s care, the

“Summary,” begins by noting that a cholecystectomy was performed without incident,

and the patient’s vital signs remained stable throughout the procedure and in post-

operative care. C.R. 42; R.R. IV, X-1; App. 1.

It then notes that around 5:30 pm the patient started complaining of headaches,

nausea, and vomiting. C.R. 42; R.R. IV, X-1; App. 1. The report does not say that

any misconduct by VBMC was responsible for the headaches, nausea, and vomiting,

nor does it say what VBMC should have done, or should not have done, in response

to these symptoms. C.R. 42; R.R. IV, X-1; App. 1.

Next the report says at 6:12 pm the patient exhibited seizure activity, but,

again, the report does not say that any misconduct by VBMC was responsible for the

seizure activity, nor does it say what VBMC should have done, or should not have

done, in response to this seizure activity. C.R. 42; R.R. IV, X-1; App. 1.

Next the report says the patient was taken for CT scans, but the CT scans

showed no problems. C.R. 42; R.R. IV, X-1; App. 1. The report makes no comment

about whether it was appropriate to conduct the CT scans, or what, if anything, should

have been done in response to the results of the CT scans.

The report concludes by saying the patient developed a sub arachnoid and

subdural hemorrhage, which caused cerebral edema, hemorrhage, necrosis, herniation

4 at the brain stem and, eventually death. C.R. 42; R.R. IV, X-1; App. 1. Again the

report does not say any acts or omissions by VBMC were responsible for any of these

conditions, nor does it fault anything VBMC did or failed to do in response to these

conditions. C.R. 42; R.R. IV, X-1; App. 1.

At no point does the report offer any commentary or opinions about the

appropriateness of the care provided by VBMC. Indeed, the report does not even

identify any care that was (or should have been) provided by VBMC’s agents rather

than by others whom VBMC does not control and for whom VBMC does not have

vicarious liability, such as physicians. C.R. 42; R.R. IV, X-1; App. 1. Nowhere does

the report state, directly or indirectly, that appellees’ claims have merit.

C. Caselaw demonstrates the trial court was obligated to grant VBMC’s first motion to dismiss.

The Medical Liability Act does not suggest that a document utterly devoid of

substantive content will qualify as an expert report. Scoresby v. Santillan, 346 S.W.3d

at 549, App. 4. Nurse O’Malley’s first report is the kind of document that is “no

report” because it does not contain a statement of opinion indicating that the claim

asserted by the plaintiff against the defendant has merit. Id. If the purported report

is this kind of “no report,” then the trial court has no discretion to grant an extension

of time to cure deficiencies in the report, but rather, the trial court is obligated to grant

the initial motion to dismiss. Id. at 557; Haskell, 363 S.W.3d at 761.

Several cases have held that reports like Nurse O’Malley’s first report are “no

5 report,” and the trial court cannot grant an extension but must grant a motion to

dismiss such a report.

In Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston [14th Dist.]

2011, no pet.) the purported report failed to include any opinion that the claim had

merit. Id. at 678. Nor did the report offer the applicable standard of care or an

explanation of how the defendant failed to meet any standard of care. Id. at 678-79.

The report also failed to identify a causal relationship between any failure by the

defendant and the plaintiff’s injury, harm, or damages. Id. at 679. The court

concluded the purported report was not an expert report, and the trial court had abused

its discretion in denying the motion to dismiss. Id. In our case, Nurse O’Malley’s

report has the same problems - it does not describe the standard of care applicable to

VBMC, does not identify any breach of any such standard, does not explain how any

such breach caused the injuries complained of, and does not include an opinion that

the claim has merit. C.R. 42; R.R. IV, X-1.

Also instructive is Haskell v. Seven Acres Jewish Senior Care Services, Inc.,

363 S.W.3d 754, (Tex. App.–Houston [1st Dist.] 2012, no pet.). In that case, the

plaintiff provided letters from three doctors which “describe actions taken by Seven

Acres that form the basis of Haskell’s suit.” 363 S.W.3d at 760. However, “none

claims that those actions were malpractice that caused Haskell an injury.” Id.

Furthermore, while each doctor described harm suffered by Haskell, “none of them

6 ties this alleged injury to any wrongful action by Seven Acres.” Id. The court added

“[m]ost significantly, there is nothing in Haskell’s report regarding any failure by

Seven Acres to meet the applicable standard of care.” Id.

Similarly in our case, Nurse O’Malley’s report describes some actions taken at

VBMC, but does not claim those actions were malpractice that caused Battles an

injury. C.R. 42; R.R. IV, X-1. Although O’Malley’s report notes that Battles died,

the report does not in any way tie this injury to any wrongful action by VBMC. C.R.

42; R.R. IV, X-1. Also, as in Haskell, O’Malley’s report says nothing about VBMC

failing to meet the applicable standard of care. C.R. 42; R.R. IV, X-1.

In Laredo Tex. Hospital Co., L.P. v. Gonzalez, 363 S.W.3d 255 (Tex. App.–San

Antonio 2012, no pet.) the plaintiff obtained a report from a doctor stating that

insertion of an intravenous catheter led to the patient’s injuries, but the report does not

identify who performed this procedure. Id. at 258. Furthermore, the report “never

attempts to state the applicable standard of care, how any defendant failed to meet that

standard, or even if a failure in the standard of care occurred.” Id. at 258. The court

held this report was “no report” and therefore extension of time to cure deficiencies

was improper and dismissal was mandatory. Id. at 258-59.

In San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685, 690

(Tex. App.–San Antonio 2011, pet. denied) the purported report identified defendant

Med Mart as a party that was to deliver medical supplies but otherwise did not identify

7 the standard of care, and was silent on how Med Mart failed to meet the standard of

care or how that shortcoming caused Vasquez’s death. Id. at 690. Also, the purported

report did not provide an opinion regarding whether Vasquez’s claims had merit. Id.

The court concluded the purported report did not meet the standard for an “expert

report” and dismissal was mandatory. Id. at 691.

Finally, in Fung v. Fischer, 365 S.W.3d 507, 530, 536 (Tex. App.–Austin

2012, no pet.) the court noted that the purported report does provide information about

Fung’s standard of care as a primary care physician, does not allege any breach of the

standard of care by Fung, nor any causal link between an alleged breach by Fung and

plaintiff’s injury. Id. at 536. The court concluded the purported report “simply fails

to assert that Fung did anything wrong” and was “no report” as to Fung. Id.

Therefore, the report was ineligible for the statutory extension and Fung was entitled

to dismissal. Id.

Nurse O’Malley’s report contains the same glaring flaws - no statement of the

standard of care as to VBMC, no statement of how any such standard was breached,

no statement of how any such breach caused Ms. Battles’ death, and, fundamentally,

no statement that VBMC did anything wrong or that appellees’ claims against VBMC

have any merit. C.R. 42; R.R. IV, X-1.

CONCLUSION AND PRAYER

Because Nurse O’Malley’s report was “no report,” the trial court had no

8 discretion to take any action but dismissal. The trial court was not authorized to grant

the thirty day extension that it did, and the timeliness of VBMC’s second motion to

dismiss is irrelevant, because the trial court was obligated to grant the first motion to

dismiss, and VBMC is entitled to take an appeal from the trial court’s abuse of

discretion with regard to the first motion to dismiss. Scoresby, 346 S.W.3d at 555;

Laredo Tex. Hosp., 363 S.W.3d at 258-259.

WHEREFORE, appellant Valley Baptist Medical Center prays that this Court

render judgment dismissing appellees’ claims with prejudice, and for all other relief

to which it is entitled.

Respectfully submitted,

ADAMS & GRAHAM, L.L.P. P.O. Drawer 1429 Harlingen, Texas 78551-1429 Telephone: (956) 428-7495 Facsimile: (956) 428-2954

By: /s/ Scott T. Clark Scott T. Clark State Bar No. 00795896 sclark@adamsgraham.com Roger W. Hughes State Bar No. 10229500 rhughes@adamsgraham.com Will Hughes State Bar No. 10240100 willhughes@adamsgraham.com

COUNSEL FOR APPELLANT, VALLEY BAPTIST MEDICAL CENTER

9 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Appellant’s Brief complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D).

Exclusive of the exempted portions in Tex. R. App. P. 9(i)(1), Appellant’s Brief contains 2,191 words. Appellant’s Brief has been prepared in proportionally spaced typeface using:

Software Name and Version: WordPerfect X5 for Windows

in (Typeface Name and Font Size): New Times Roman 14 point .

ADAMS & GRAHAM, L.L.P. P. O. Drawer 1429 Harlingen, TX 78551-1429 956/428-7495; FAX: 956/428-2954 sclark@adamsgraham.com

By: /s/ Scott T. Clark SCOTT T. CLARK State Bar No. 00795896

Attorney for Appellant

10 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to the following counsel of record on this the 2nd day of March, 2015:

Attorneys of record for Appellees BATTLES, ET AL.:

Mr. Robert Garza Via e-service Myles R. Garza & e-mail LAW OFFICE OF ROBERT GARZA, P.C. 1200 E. Harrison Street Brownsville, Texas 78520

/s/ Scott T. Clark SCOTT T. CLARK

11 APPENDICES

1. Erin K. O’Malley, RN, BSN, MHSA, INC-CSp.’s report dated November 11, 2013.

2. Order Granting Defendant Valley Baptist Medical Center’s Objections to Plaintiffs’ Expert Report of Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and Granting Plaintiffs A CPRC§74.351(c) Extension to Furnish Compliant Report signed January 8, 2014.

3. Order on VBMC’s Objections to Plaintiff’s Second Deficient Expert Report of Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and Motion to Dismiss signed December 10, 2014.

4. Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011)

12 Cause No. 13-14-00756-CV

APPENDIX 1 TO APPELLANT’S BRIEF NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P.003

EKO Consulting Erin K.O'MaUeY,RN,BSN,MHSA, urc-cse. 2907 Ashwood St Houston, TX 77025

November 11Ib, .2013

Law Offices of Robert Garza. PC DEFENDANT'S EX~Jr~ Retired State District Judge 2320 Central Blvd ::::.... Brownsville, Texas 78520

Re: Battles vs, Valley BaptistMedical Center

Dear Mr. Garza:

You have asked me for my opinion on the standards of care, breaches of said standards, and the basis of same in the case of Batt;Ies vsValley BaptistMedica1 Ceolrr.

I am a registered nurse in the state of Texas since December 1991, and have over twenty-two years of clinical experience, which include: emergency medicine. critical care, wound care, hyperbaric medicine, outpatient clinical management. and hospitaladministration. 1 have over fifteen years experience in wound care practice and clinical management. I obtained a Bachelors Degree in Nursing from Texas Woman'a University in 1991, a Masters Degree in Health Services Administration from Southwest University in 2001. and a Masters in Business Administration from Texas Women's University in 2008. I have cared for numerous patients requiring intensive care treatment. My experience includes the following;

1991-1993 Staff Nurse Emergency Room at Memorial Hermann-TlvfC. Houston TX.

1993-1996 Relief Charge Nurse Shock Trauma leU at Memorial Hermann-TM'C. Houston TIC NOV/ZI/Z013/THU 05:36 PM Robert Garza p.e. FAX No. 956-544-1108 P. 004

1996-1999 Clinical Nurse Coordinator for Department of Hyperbarics, Wound Care and Lymphedema at Memorial Hermann Hospital, Houston, TX.

1999-2000 Clinical Manager of the University of Texas Outpatient Clinic at Memorial Hermann Hospital, Houston, TX

2000-2001 Curative Healthcare Services - contract wound care management and pharmaceutical company which manages wound care operations in acute care hospitals.

2001·2003 ChiefNursing Officer III of 110 bed long term acute care facility with Kindred Healthcare, Inc. in Houston, TX.

2003-2004 Associate Administrator at Cornerstone Hospitals of Austin, a long term acute care hospital in Austin, TX.

2005-2006 Director of Education for Spring Branch Medical Center responsible for all training, educational and orientation programs of acute medical and surgical patients.

2006·2008 Clinical Operations Manager of Hyperbaric, Wound Care and Lymphedema unit at Memorial Hermann Hospital in Houston. TX.

2008-2010 Director of Outpatient Services and Neurosciences at Memorial Hermann Hospital in Houston, TX

2010-2012 Chief Clinical Officer of Kindred Hospital North. long term acute care hospital including nursing, wound care, outpatient services.

2012- Present Clinical Practice Manger and Head Research Nurse, Baylor College of Medic me. NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P. 005

This report has been rendered in a professional.diligent manner, and is based on the facts obtained from the materials provided to me, as well as my education, training and clinical expertise in general nursing care. This report is intended to be a fair summary of my opinions.

I have reviewed the following records provided by your office regarding Mr. Bradford:

Autopsy Report

Lab Reports

• Medical Records from Valley Baptist Medical Center

On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center for a routine cholecystectomy and was admitted to a shortstay unit. The procedure was done without incidence. The patients vital signs remainedstable throughout the procedure, and in post-operative care, That evening around 5:30 pm the parlent started complaining of headaches, nausea, and vomiting. At 6:12 pm the patient exhibited seizure activity. The patient lost consciences, and a code was called. The patient was intubated, given Lovenox, and transferred to the intensive care unit. The patient was taken to cr scan, which showed minimal edema, and no intracranial bleeding. The cr angiogram. of the chest showed no pulmonary embolism. The CT scan of the abdomen showed no fluid collection, The patient developed a.sub arachnoid and subdural hemorrhage. This caused cerebral edema, hemorrhage, necrosis, herniation at the brain stem area which eventually caused death. The family was aware ofher condition and decided that Ms. Battles should be taken off life support. Cause No. 13-14-00756-CV

APPENDIX 2 TO APPELLANT’S BRIEF ... ' .;.....

CAUSE NO. 2013-DCL-04983-H

ROSALINDA BATILES. GERALD IN THE DISTRlcr COURT BATTLES, AS SURVIVING SPOUSE OF ROSALINDA BATILES, AMANDA GISELLE BATTLES, AS SURVIVING CHILD OF ROSAUNDA BATILES AND JEREMY BLAKE BATTLES.AS SURVIVING CHILD OF ROSALINDA BAITLES

VS. 444 fh JUDICIAL DISTRICT

VALLEY BAPTIST MEDICAL CENTER OF CAMERON COUNTY. TEXAS

ORDER GRANTING DEFENDANT VALLEY BAPTIST MEDICAL CENTER- BROWNSVILLE'S OBJECTIONS TO PLAINTIFFS' EXPERT REPORT OF ERIN K. O'MALLEY, RN, BSN, MHSA, INC-CSP AND GRANTING PLAINTIFFS A CPRC§74.351(c) EXTENSION TO FURNISH COMPLIANT REPORT

CAME ON FORCONSIDERATION, defendantValleyBaptistMedical Center-Brownsville's Objections to Plaintiffs'ExpertReportof Erin K. O'Malley, RN,BSN,MHSA, INC-CSpand the Court having heardtheevidencesubmitted inconnection with theObjections oftheopinionthatsaidObjections should be sustainedbecausetheCourtfindsthatelementsof the report aredeficient andthat the plaintiffs should have one 30-day extension to cure such deficiencies; and accordingly; IT ISTHEREFOREORDEREDthat defendant Valley Baptist Medical Center-Brownsville's Objections to Plaintiffs' Expert Reportof Erin K. O'Malley, RN, BSN,MHSA, INC-CSp are hereby sustained; and IT ISFURTHER ORDERED that plaintiffs aregranted a 3O-day extension tocure the deficiencies in their expert report.

:, >t. ,O"\FILESW -928\orCfef,\Granting.Q01 Pag" "

51 PDF created with odfFactorv Pro trial version www.odffactorv.com SIGNED FOR ENTRY thiS,+- day of---tr.r-_~~_

Rober! Garza. LAW OFFICE OF ROBERT GARZA, P.C., 2320 Central Blvd., Brownsville, TX 78520: Fax No. 956·544·1108; email:jroberl@rgarzalaw.com Will Hughes, ADAMS & GRAHAM, LLP.. P.O. Drawer 1429, Harlingen, TX 78551.1429; Fax No. 956-428-2954; e-mail:willhughes@adaltll;grllham.com

(12~ C:\FILE~W'928\orClerS\Granling'OOl Page 2

52 PDF created with odfFactorv Pro trial version www.odffactorv.com Cause No. 13-14-00756-CV

APPENDIX 3 TO APPELLANT’S BRIEF CAUSE NO. 2013-DCL-4983-H

ROSALINDA BATTLES, GERALD § IN THE DISTRICT COURT BATTLES, AS SURVIVING SPOUSE § OF ROSALINDA BATTLES, AMANDA § GISELLE BATTLES, AS SURVIVING § CHILD OF ROSALINDA BATILES § AND JEREMY BLAKE BATTLES, AS § SURVIVING CHILD OF ROSALINDA § BATTLES § Plaintiffs, § § V. § 444TH JUDICIAL DISTRICT § VALLEY BAPTIST MEDICAL § CENTER § Defendant. § OF CAMERON COUNTY, TEXAS

ORDER ON DEFENDANT VALLEY BAPTIST MEDICAL CENTER- BROWNSVILLE'S OBJECTIONS TO PLAINTIFF'S SECOND DEFICIENT EXPERT REPORT OF ERIN K. O'MALLEY, RN. BSN, MHSA. INC-CSP AND MOTION TO DISMISS

On , a hearing was held on the Defendant Valley Baptist Medical

Center - Brownsville's Objections to Plaintiff's Second Deficient Expert Report of Erin K.

O'Malley. RN, BSN, MHSA, lNC-CSP and Motion to Dismiss in the above-styled and

nwnbered cause. After considering the arguments of the parties, the court is of the opinion that

said.motion should be DENIED.

IT IS THEREFORE ORDERED that Defendant Valley Baptist Medical Center -

Brownsville's Objections to Plaintiffs Second Deficient Expert Report of Erin K. O'Malley,

RN, BSN, MHSA, INC-CSP and Motion to Dismiss is hereby DENIED.

SIGNED on thisULday of J t.Cet.~2014.

FILEDJl-0'CLOCKLM AURORA DE LAGARZA, CLERK ~-) -"j ----- { JUDGE PRESIDING IL\:::0=

75 PDF created with odfFactorv Pro trial version www.odffactorv.com Cause No. 13-14-00756-CV

APPENDIX 4 TO APPELLANT’S BRIEF 546 Tex. 3-16 SOUTH WESTERN REPORTER, 3d SERIES

We reverse the court of appeals' judgment with expertise indicating that claim as- and render judgment for BIC. serted by plaintiff has merit; (3) 30 day extension to cure deficiencies in Justice GREEN did not participate in expert report may be granted if report the decision. is served by statutory deadline and contains opinion of individual with ex- pertise that claim has merit; (4) doctor's expert report was deficient be- cause it did not state standard of care; and Tyler SCORESBY, M.D., Petitioner, (5) doctor's expert report, although defi- v. cient, was not the legal equivalent of Catarino SANTILLAN, Individually and "no report" at all under Act. As Next Friend of Samuel Santillan, Affirmed, A Minor, Respondent. Willett, J., filed concurring opinion. No. 09-0497. Johnson, J., dissented and filed opinion in Supreme Court of Texas. which Wainwright, J., joined. Argued Nov. 9, 2010. Decided July 1, 2011. 1. Health e=>804 Rehearing Denied Sept. 30, 2011. Medical Liability Act entitles a defen- Background: Patient brought action dant to dismissal of a health care liability against physicians under Medical Liability claim if, within 120 days of the date suit Act. The 96th District Court, Tarrant was filed, he is not served with an expert County, Jeff Walker, J., denied physicians' report showing that the claim against him motions to dismiss for failure to file com- has merit. V.T.CA, Civil Practice & pliant health care expert report, and Remedies Code §§ 74.001-74.507. granted patient 30-day extension to cure 2. Appeal and Error e=>70(3) deficiencies in report. Both physicians ap- pealed. On consolidated appeal, the Fort Trial court's refusal to dismiss health Worth Court of Appeals, Bill Meier, J., 287 care liability claim when defendant is not S.W.3d 319, dismissed the appeals. Physi- served with an expert report within 120 cians appealed. days of the date suit was filed is immedi- ately appealable. V.T.C.A., Civil Practice Holdings: The Supreme Court, Hecht, J., & Remedies Code §§ 74.001-74.507. held that: (1) trial court should err on side of grant- 3. Appeal and Error e=>70(3) ing plaintiff additional 30 days in which Health e=>804 to cure deficiency in expert report, and Medical Liability Act sets specific re- defendant cannot seek review of this quirements for an adequate expert report ruling or appeal court's concomitant and mandates that objective good faith refusal to dismiss claim before 30 day effort be made to comply with them, but it period has expired; also authorizes the trial court 'to give a (2) document qualifies as "expert report" plaintiff who meets the 12O-day deadline under Medical Liability Act if it con- for serving expert report an additional tains statement of opinion by individual thirty days in which to cure a "deficiency" SCORESBY v, SAl"ITILLAN Tex. 547 Cite as 346 S.W.3d 546 (Tex. 2011)

in the elements of the report, and trial care more available and less expensive by court should err on the side of granting reducing the cost of health care liability the additional time and must grant it if the claims, and eliciting an expert's opinions deficiencies are curable, and defendant early in the litigation is an obvious place to cannot seek review of this ruling or appeal start in attempting to reduce frivolous law- the court's concomitant refusal to dismiss suits and thereby reduce the costs of the claim before the thirty-day period has claims. V.T.CA, Civil Practice & Reme- expired. V.T.C.A., Civil Practice & Reme- dies Code §§ 74.001-74.507; Vernon's dies Code §§ 51.014(a)(9), 74.351(a-c, 1), Ann.Texas Civ.St. art. 4590i (Repealed). (1')(6). 4. Health lS='804 8. Health lS='804 While Medical Liability Act contem- Purpose of Medical Liability Act's ex- plates that a document can be considered pert report requirement is to deter frivo- an expert report despite its deficiencies, lous claims, not to dispose of claims re- the Act does not suggest that a document gardless of their merits. V.T.CA, Civil utterly devoid of substantive content will Practice & Remedies Code § 74.351(1')(6). qualify as an expert report. V.T.CA, Civ- il Practice & Remedies Code 9. Health lS='804 § 74.351(1')(6). Failing to timely file an expert report, 5. Health lS='804 or filing a report that does not evidence a Document qualifies as an "expert re- good-faith effort to comply with the defini- port" under Medical Liability Act if it con- tion of an expert report under Medical tains a statement of opinion by an individu- Liability Act, means that the claim is ei- al with expertise indicating that the claim ther frivolous, or at best has been brought asserted by the plaintiff against the defen- prematurely. V.T.CA, Civil Practice & dant has merit. V.T.CA, Civil Practice & Remedies Code § 74.35l(c), (1')(6). Remedies Code § 74.351(1')(6). See publication Words and Phrases for other judicial constructions and 10. Pretrial Procedure lS='46 definitions. There are constitutional limitations 6. Health lS='804 upon the power of courts to dismiss an Under Medical Liability Act, expert's action for discovery violations without af- lack of relevant qualifications and his opin- fording a party the opportunity for a hear- ion's inadequacies are deficiencies the ing on the merits of his cause, and those plaintiff should be given an opportunity to limitations constrain the legislature no less cure if it is possible to do so, and this in requiring dismissaL lenient standard avoids the expense and delay of multiple interlocutory appeals and 11. Health lS='804 assures plaintiff a fair opportunity to dem- No particular words or formality are onstrate that his claim is not frivolous. required in expert report under Medical V.T.e.A., Civil Practice & Remedies Code Liability Act, but bare conclusions will not § 74.351(1')(6). suffice, and the report must address all the 7. Health lS='603 elements set forth in Act, and omissions Goal of the Medical Liability and In- may not be supplied by inference. surance Improvement Act (MLIIA) and V.T.CA, Civil Practice & Remedies Code the Medical Liability Act is to make health § 74.351(1')(6). 548 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

12. Health e=>804 conduct. V.T.C.A., Civil Practice & Reme- Medical Liability Act allows a claim- dies Code § 74.35l(r)(6). ant a thirty-day period to cure deficiencies 18. Health e=>804 before the trial court finally determines Doctor's expert report, although defi- that the report is inadequate and the claim cient because it did not state the standard must be dismissed. V.T.CA, Civil Prac- of care, was not the legal equivalent of "no tice & Remedies Code § 74.35l(c), (r)(6). report" at all under Medical Liability Act, 13. Health e=>603 given that there was no question that, in Medical Liability Act's principal pur- doctor's expert opinion, patient's health pose is to reduce the expense of health care liability claim against defendant phy- care liability claims. V.T.CA, Civil Prac- sicians had merit, and since the report was tice & Remedies Code §§ 74.001-74.507. served within the statutory 120 day dead- 14. Health e=>804 line, trial court had authority under Act to Goal of the Medical Liability Act's grant patient an additional 30 days to cure expert report requirement is to deter friv- deficiencies in the expert report. olous claims, and inadequate expert report V.T.C.A., Civil Practice & Remedies Code does not indicate a frivolous claim if the § 74.351(a-c). report's deficiencies are readily curable. 19. Appeal and Error e=>70(3) V.T.C.A., Civil Practice & Remedies Code Health e=>804 § 74.35l(c), (r)(6). Although doctor's expert report was 15. Health e=>804 deficient, because it did not state the stan- Medical Liability Act's thirty-day ex- dard of care, it was possible to cure defi- tension to cure deficiencies in an expert ciencies in the expert report, and thus, report may be granted if the report is trial court granted patient an additional 30 served by the statutory deadline, if it con- days to cure deficiencies in the expert tains the opinion of an individual with ex- report, and trial court's decision granting pertise that the claim has merit, and if the patient an additional 30 days to cure defi- defendant's conduct is implicated. ciencies, and denying the defendant physi- V.T.C.A., Civil Practice & Remedies Code cians' motions to dismiss patient's health § 74.35l(c), (r)(6). care liability claim, were not appealable before the 30 day period had expired. 16. Appeal and Error e=>70(3) V.T.C.A., Civil Practice & Remedies Code Under Medical Liability Act, all defi- § 74.351(a-c), (r)(6). ciencies in expert report, whether in the expert's opinions or qualifications, are sub- 20. Health e=>804 ject to being cured before an appeal may Medical Liability Act requires that ex- be taken from the trial court's refusal to pert's knowledge, training or experience, dismiss the case. V.T.C.A., Civil Practice and practice be relevant to patient's claim. & Remedies Code § 74.35l(c), (r)(6). V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). 17. Health e=>804 Doctor's expert report was deficient, and thus did not satisfy standards for ex- pert report under Medical Liability Act, because it did not state the standard of Eric Rene Reyes, Jason C.N. Smith, Art care, but, rather, only implied that it was Brender, Fort Worth, for Catarino Santil- inconsistent with the defendant physicians' lan. SCORESBY v, SANTILLAN Tex. 549 Cite all 346 S.W.3d 546 (Tex. 2011)

Michael Alan Yanof, Philipa Remington, ruling 9 or appeal the court's concomitant Dallas, for Tyler Scoresby, M.D. refusal to dismiss the claim before the Randy J. Hall, David Leon Pratt II, thirty-day period has expired." Fort Worth, for Yadranko Ducic, M.D. [4-6) While the Act thus contemplates that a document can be considered an ex- Justice HECHT delivered the opinion of pert report despite its deficiencies, the Act the Court, in which Chief Justice does not suggest that a document utterly JEFFERSON, Justice MEDINA, Justice devoid of substantive content will qualify GREEN, Justice WILLETT, Justice as an expert report. Based on the Act's GUZMAN, and Justice LEHRMANN text and stated purposes, we hold that a joined. document qualifies as an expert report if it [1-3] The Medical Liability Act 1 enti- contains a statement of opinion by an indi- tles a defendant to dismissal of a health vidual with expertise indicating that the care liability claim if, within 120 days of claim asserted by the plaintiff against the the date suit was filed, he is not served defendant has merit. An individual's lack with an expert report showing that the of relevant qualifications and an opinion's claim against him has merit," The trial inadequacies are deficiencies the plaintiff court's refusal to dismiss is immediately should be given an opportunity to cure if it appealable." The Act sets specific require- is possible to do so. This lenient standard ments for an adequate report 4 and man- avoids the expense and delay of multiple dates that "an objective good faith effort interlocutory appeals and assures a claim- [be made) to comply" with them,' but it ant a fair opportunity to demonstrate that also authorizes the trial court to give a his claim is not frivolous. The expert re- plaintiff who meets the 12O-day deadline port before us meets this test, and there- an additional thirty days in which to cure a fore the trial court's order allowing thirty "deficiency" in the elements of the report," days to cure deficiencies and denying the The trial court should err on the side of defendants' motions to dismiss were not granting the additional time 7 and must appealable. Accordingly, we affirm the grant it if the deficiencies are curable." court of appeals' judgment dismissing the The defendant cannot seek review of this appeal for want of jurisdiction."

1. TEX. CIV PRAC. & REM. CODE §§ 74.001-.507. their claims.''' (quoting id. at 416 (Guzman. All references to the Act are to these provi- J.. joined by Lehrrnann.r J.. concurring in the sions. judgrnentll).

2. /d. § 74.35I(bl. 8. Id. at 411 (plurality op. of Medina, J., joined by Jefferson. C.J .. and Hecht, J.); id. at 416 3. Id. § 51.014(a)(9); Badiga v. Lopez, 274 (Guzman. J., joined by Lehrmann. J.. concur- S. W.3d 681, 685 (Tex.2009). ring in the judgment). 4. TEX. CIV. PRAC. & REM CODE § 74.35I(r)(6). 9. TEX. CIY PRAC. & REM. CODE § 51.014(a)(9) (no interlocutory appeal); /11 re Watkil1s. 279 5. /d. § 74.351(l). S.W.3d 633, 634 (Tex.2009l (orig.proceeding) 6. /d. § 74.35I(c). (no review by mandamus).

7. Samlowski v. Wootel1. 332 S.W.3d 404. 411 10. Ogletree v. Matthews. 262 S.W.3d 316, 321 (Tex.201\) (plurality op. of Medina, J., joined (Tex.2007). by Jefferson. C.J.. and Hecht. J.) (" '[Tjrial courts should err on the side of granting II. 287 S.W.3d 319

I on awakening he did not have a normal On behalf of Samuel Santillan, a minor, neurologic exam, in fact, had a right- Catarino Santillan sued Dr. Tyler Scores- sided hemiparesis, and due to the pro- by and Dr. Yadranko Ducic, two otolaryn- gression of his neurological deficit, in- gology (ENT) surgeons (collectively, "the creasing intercerebral hemorrhage was Physicians"), alleging that they negligently noted by CT scanning. performed a medial maxillectomy to re- He was taken back to the operating move growths from Samuel's sinus cavity. suite on 1/18/06 by Dr. Gregory Smith, Santillan asserts that an incision made too D.O., a neurosurgeon. Dr. Smith's pre- far into Samuel's brain lacerated a blood operative diagnosis was that of expand- vessel and required surgery to stop the ing inter-cerebral hematoma, status post bleeding, resulting in brain damage and split thickness skull harvesting, with partial paralysis. postoperative diagnosis of expanding in- To satisfy the Act's expert report re- tercerebral hematoma and intercerebral quirement, Santillan timely served the hematoma skull perforation. Procedure Physicians with a letter from Dr. Charles performed was that of a left parietal D. Marable to Santillan's attorney. The craniotomy with evacuation of intercere- letter did not attach Marable's curriculum bral hematoma, repair and hemostasis. vitae or describe his credentials or experi- Dr. Smith's operative report states there ence other than to state that he is "a was cortical laceration with active bleed- Board-Certified neurologist". From hav- ing from several medium-sized vessels in ing examined Samuel and reviewed his the left parietal area, which were then medical records, Marable explained his cauterized with bipolar cautery for he- condition as follows: mostatis. An underlying intercerebral The patient was initially seen on 8/3/07. hematoma was entered and eventually He is now a 17-year-old Latin-Ameri- evacuated successfully with suction. can male who was taken to John Peter * * * Smith on 1/17/06 for a preoperative diag- It appears he was in the hospital until nosis of maxillary sinus neoplasm under 2/11/06, and at that time was transferred the care of Dr. Yadro Ducic, M.D., an to HealthSouth Rehabilitation Hospital, ENT physician, and another surgeon, Cityview, admitted on 2/11/06, date of Dr. Tyler Scorsby [sic], with procedures discharge 2/21/06. He was discharged of left mediomaxillectomy [sic], excision with the diagnosis of left parietal hemor- of neoplasm of the maxilla, calvarial rhage, maxillary sinus tumor resection, bone growth and reconstruction of max- right hemiparesis, persistent pain, apra- illa and excision of tumor of pterygopa- xia, seizure prophylaxis, peptic ulcer latin [sic] structures. During the proce- prophylaxis and right hemisensory defi- dure, an incision was made in the right cit. During his stay at HealthSouth parietal region in a coronal fashion and Hospital he progressed in all areas of carried down the pericranium. As a mobilization and self-care. He was am- result of this, there was cortical lacera- bulating greater than 400', but still had tion with active bleeding from several significant right upper extremity weak- medium size vessels in the area. ness and spasticity. It was then deemed According to Dr. Scorsby's [sic] note, necessary to transfer him to an' outpa- the patient awoke in the operating room tient brain injury program and work on without complications and was taken to his strength, cognition and overall mobi- the post anesthesia care unit. However, lization.... SCORESBY v, SANTILLAN Tex. 551 Cite as 346 S.W.3d 546 (Tex. 2011)

He was seen on 8/3/07. He still has After the 12o-day deadline, Santillan weakness of his right arm and leg. served the Physicians with Marable's cur- Walking seems to still be a problem .... riculum vitae and his amended report, in He is still having headaches in the occi- which he added that "the applicable stan- pital region. dard of care would have been to perform Marable's letter concluded: the procedure of a calvaria bone transplant As a Board-Certified neurologist, my without nicking or lacerating the parietal cortex [and] to get the appropriate sur- opinion is that Dr. Ducic violated the geon, such as a neurosurgeon, instead of standards of care, as well as Dr. Scorsby an ENT physician to do a calvaria bone [sic], and as a result his damages are grafting procedure", and that "Dr. Ducic that of a light-sided hemiparesis with and Dr. Scorsby [sic] ... failed to perform possibility of seizure foci in the future. a careful and well-planned surgery, caus- Although he has not had any seizures, ing a laceration of the cortical hemisphere, he certainly does meet the criteria for a causing substantial bleeding". At the seizure disorder. Had it not been for hearing on the Physicians' objections and Dr. Ducic and Dr. Seorsby's [sic] negli- motions, the trial court refused to consider gent activity in causing cortical lacera- Marable's post-deadline amended report. tion of this patient's left parietal lobe, he The Physicians complained that Marable's would not have needed further hospital- original letter did not show that he had ization at John Peter Smith or the leU sufficient qualifications and experience to therapy, or going to HealthSouth Rehab, render an opinion regarding the surgery, and is now left with a right hemiparesis and did not define the standard of care, at a young age. state how it was breached, or explain how The Physicians each timely objected a breach resulted in Samuel's injuries. that the letter was inadequate as an expert The Physicians acknowledged that Samuel report, asserting that: (i) a neurologist is suffered a lacerated artery but argued that not qualified to testify regarding the stan- such things are inevitable in surgery, no dard of care for an ENT surgeon in per- matter how carefully it is performed, and forming the procedures the Physicians do not necessarily indicate a breach of the performed on Samuel; (ii) Marable's opin- standard of care. The trial court denied ions regarding the Physicians' standard of the motions to dismiss and granted Santil- care, breach, and causal relationship to lan a thirty-day extension to cure deficien- Samuel's injuries were conclusory and di- cies in the report. rected to Scoresby and Ducic collectively The Physicians appealed, persisting in rather than individually; and (iii) Mara- their contention that Marable's letter was ble's curriculum vitae was not included, as too inadequate to qualify as an expert re- the Act requires.'! The Physicians argued port; therefore, Santillan had not met the Marable's letter was so woefully deficient, 12o-day deadline; and consequently, the it did not even qualify as an expert report Act did not permit an additional thirty under the Act to meet the 12o-day dead- days to cure the deficiencies but instead line. They moved the court to dismiss the required that the case be dismissed.P The case with prejudice and award them their court of appeals construed our analysis in reasonable attorney fees and costs. Ogletree v. Mouheioe" to mean that defi-

12. TEX. CIV PRAC & REM. CODE § 74.351(a). 14. 262 S.W.3d 316.

13. 287 s.w.sa at 320. 552 Tex. ;346 SOUTH WESTERN REPORTER, 3d SERIES

ciencies in a document tendered as an Legislature's purpose in the MLIIA, ex- expert report will not preclude it from pressly stated, was to qualifying as SUCh. 15 The court concluded reduce excessive frequency and severity that an interlocutory appeal in these cir- of health care liability claimsl.] de- cumstances was not permitted." crease the cost of those claims[,] do We granted the Physicians' petitions for so in a manner that will not unduly review." restrict a claimant's rights any more than necessary to deal with the crisis], While this appeal has been pending, the and thereby] ... make affordable medi- Physicians have lodged essentially the cal and health care more accessible and same objections to Santillan's amended re- available to the citizens of Texas .... 22 port as they made to the original report. They have also moved again for dismissal, In 2003, the Legislature replaced the MLI- attorney fees, and costs. The trial court IA with the Medical Liability Act, repeat- has not ruled on those objections and mo- ing its 1977 findings and statements of purpose.f tions. [7] Fundamentally, the goal of the II MLIIA and the Medical Liability Act has The Legislature enacted the Medical Li- been to make health care in Texas more ability and Insurance Improvement Act available and less expensive by reducing ("MLIIA") in 1977 18 in response to "a the cost of health care liability claims. To medical malpractice insurance crisis in the that end, both statutes have sought to State of Texas" that was having "a materi- deter frivolous lawsuits by requiring a al adverse effect on the delivery of medical claimant early in litigation to produce the and health care in Texas, including signifi- opinion of a suitable expert that his claim cant reductions of availability of medical has merit. "[E]liciting an expert's opin- and health care services to the people of ions early in the litigation [is] an obvious Texas and a likelihood of further reduc- place to start in attempting to reduce friv- tions in the future"." The Legislature olous lawsuits" 24 and thereby reduce the found that the crisis had been created by costs of claims. an "inordinate] J" increase in the volume The Legislature first added an expert and expense of health care liability report requirement to the MLIIA in 1993, claims." Concerned that "the direct cost then strengthened it over the next ten of medical care to the patient and public of years, finally allowing interlocutory ap- Texas hard] materially increased"," the peals to ensure uniform enforcement. We

15. 287 S.W.3d at 324. 19. 1977 Act, § 1.02(a)(5H6).

16. Id.at325. 20. 1977 Act, § 1.02(a)(lH5).

17. 53 Tex.Sup.Ct.J. 1061 (Aug. 27. 2010). We 21. 1977 Act, § 1.02(a)(8). have jurisdiction to determine whether the court of appeals had jurisdiction. Tex. Dep't 22. 1977 Act, § 1.02(b)(lH3), (5). of Criminal Justice v. Simons, 140 S.W.3d 338, 343 (Tex.2004). 23. Act of June 2, 2003, 78th Leg., RS., ch. 204, §§ 10.01, 10.09, 10.11. 2003 tex. Gen. 18. Act of May 30, 1977, 65th Leg., R.S., ch. Laws 847, 864-882, 884-885. 817,1977 Tex. Gen. Laws 2039, formerly TEXREVCIV STAT. ANN. art. 4590i [hereinafter 24. Am. Transitional Care Ctrs. oiTex., Inc. v. 1977 Act]. Palacios, 46 S.W.3d 873,877 (Tex.2001). SCORESBY v. SANTILLAN Tex. 553 Cite as 346 S.W.3d 546 (Tex. 2011)

look first at the requirement, then the care provider failed to meet the standards, appeal, and finally at their proper opera- and the causal relationship between that tion together. failure and the injury, harm, or damages claimed." 31 The failure to make "a good A faith effort" to comply :l2 could result in The 1993 amendment to the MLIIA re- dismissal with prejudice and liability for quired a plaintiff, within ninety days of attorney fees as well as costs." But if the filing suit, either to file an affidavit that he failure-s-even missing the deadline com- had obtained a suitable expert's opinion pletely 34-was "not intentional or the re- that his claim had merit or to post a $2,000 sult of conscious indifference but was the bond or cash deposit," The trial court result of an accident or mistake," the trial could extend the deadline for up to ninety court was required to grant "a grace peri- days "for good cause shown"." A plaintiff od of 30 days to permit the claimant to who failed to comply risked dismissal with- comply"." out prejudice and liability for costs, again, except for "good cause ... shown".27 The Medical Liability Act, adopted in 2003 and now in effect, eliminates the In 1995, the Legislature required that bond/deposit alternative, shortens the the expert report itself be filed and raised deadline for the expert report and curricu- the amount of the bond or deposit posted lum vitae to 120 days (unless extended by in lieu of a report to $5,000. 28 The amend- agreement), and requires service rather ment retained the ninety-day initial dead- than filing." The Act retains the defini- line but added that even if a bond or tion of an expert report 37 but is more deposit were posted, an expert report and specific about an expert's qualifications." curriculum vitae must be filed within 180 days of initiating suit." The amendment The Act now distinguishes between specified the qualifications the expert was missing a deadline altogether and serving required to have 30 and defmed the report an inadequate report. Section 74.35l(b) as one "provid[ing] a fair summary of the provides that expert's opinions ... regarding applicable [i]f, as to a defendant ... , an expert standards of care, the manner in which the report has not been served [by the dead- care rendered by the physician or health line], the court, on the motion of the

25. Act of May 25, 1993. 73rd Leg .. RS., ch. 32. 1995 AC1, former art. 4590i, § 13.0W). 625, § 3. 1993 Tex. Gen. Laws 2347. 2347, formerly TEX.REV.CIV. STAT ANN. art. 4590i, 33. 1995 Act, former art. 4590i, § 13.0I(el. § 13.0HaHb) [hereinafter 1993 Act]. 34. Stockton v. Offenbach, 336 S.W.3d 610, 26. 1993 Act, former art. 4590i, § 13.01(d). 616 (Tex.201 J) ("Under article 4590i, a plain- 27. 1993 Act, former art. 4590i, § 13.0l(c). tiff could obtain an extension, even when no report was provided by the deadline, if the 28. Act of May 5, 1995, 74th Leg., RS., ch. plaintiff could show an 'accident or mistake' 140, § J. 1995 Tex. Gen. Laws 985, 986, in failing to furnish a timely report. "). formerly TEX.REV.CIV STAT ANN. art. 4590i, § 13.0l(a) [hereinafter 1995 Act]. 35. 1995 Act, former art. 4590i, § 13.0I(g).

29. 1995 Act, former art. 4590i, § 13.01(d). 36. TEX. CIV PRAC & REM. CODE § 74.35Ha). 30. 1995 Act, former art. 4590i, §§ 13.0l(r)(5l & 14.01. 37. Id. § 74.351(r)(6).

31. 1995 Act, former art. 4590i, § 13.01(r)(6l. 38. Id. §§ 74.35I(r)(5), 74.401-.403. 554 Tex. :H6 SOUTH WESTERN REPORTER, 3d SERIES

[defendant], shall, subject to Subsection purpose of the expert report requirement (c), enter an order that: is to deter frivolous claims," not to dispose (1) awards [the defendant] reasonable of claims regardless of their merits. "The attorney's fees and costs of court ... ; Legislature has determined that failing to and timely file' an expert report, or filing a (2) dismisses the claim with respect to report that does not evidence a good-faith the [defendant] with prejudice to the effort to comply with the definition of an refiling of the claim." expert report, means that the claim is Under section 74.351([), the same conse- either frivolous, or at best has been quences attend serving an inadequate re- brought prematurely." U But the Legisla- port that "does not represent an objective ture has likewise recognized that when an good faith effort" to comply with the Act's expert report can be cured in thirty days, requirements." But before those conse- the claim is not frivolous. It must be quences are imposed, the Act provides an remembered that "'[t]here are constitu- opportunity for deficiencies to be cured. tional limitations upon the power of courts Section 74.351(a) requires that any objec- . .. to dismiss an action without affording tion to the sufficiency of a report be lodged a party the opportunity for a hearing on within twenty-one days of service," and the merits of his cause' ",45 and those limi- section 74.351(c) provides: tations constrain the Legislature no less in If an expert report has not been served requiring dismissal. [by the deadline] because elements of For these reasons, we have held that the report are found deficient, the court trial courts should be lenient in granting may grant one 3O-day extension to the thirty-day extensions and must do so if claimant in order to cure the deficien- deficiencies in an expert report can be cy." ~2 cured within the thirty-day period. This [8-10] The Act's thirty-day extension "minimal delay before a report's sufficien- to cure deficiencies replaces the 1995 law's cy may again be challenged and the case thirty-day "grace period" for "accident or dismissed, if warranted" 46 does not impair mistake", shifting the focus from the claim- the purpose of the Act. ant's conduct to the report's contents. But the importance of an appropriate delay in B finally dismissing a claim for want of an Under the MLIIA, there was no inter- adequate report is undiminished. The locutory appeal from the denial of a motion

39. Id. § 74.35 l tb). 209-210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). citing Hammond Packing Co. v. Arkan- 40. Id. § 74.351(/). sas. 212 U.S. 322. 350-351. 29 S.Ct. 370. 53 41. Id.§ 74.351(a). L.Ed. 530 (1909), and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841. 42 L.Ed. 215 (1897); 42. TEX. CIV PRAC. &. REM. CODE § 74.351 (c). accord Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694. 705-706, 43. Am. Transitional Care Ctrs. of Tex., Inc. v. 102 S.Ct. 2099. 72 L.Ed.2d 492 (1982»; see Palacios, 46 S.W.3d 873, 878 (Tex.2001) also Walker v. Gutierrez, 111 S.W.3d 56. 66 C'And one purpose of the expert-report re- quirement is to deter frivolous claims. "). (Tex.2003).

44. Id. 46. Ogletree v. Matthews, 262 S.W.3d 316.321 (Tex.2007). 45. TransAmerican Natural Gas Corp. v. Pow- ell. 811 S.W.2d 913. 918 (Tex.1991) (quoting Societe lnternationale v. Rogers, 357 U.S. 197, SCORESBY v, SANTILLA.N" Tex. 555 Cite as 346 S.W.3d ~46 (Tex. 2011)

to dismiss a health care liability claim for If no expert report is timely served, we failure to comply with the expert report held in Badiga v. Lopez that the denial of requirement, and we did not make clear a motion to dismiss is appealable, even if until 2008 that review by mandamus was the court grants an extension.P The Med- available." In adopting the Medical Lia- ical Liability Act, unlike the MLIIA, does bility Act in 2003, the Legislature permit- not authorize an extension if no report is ted an interlocutory appeal from an order timely served. Granting an extension not denying "all or part of the relief sought by authorized by section 74.351 does not pre- a motion under Section 74.35l(b), except clude appeaL But because an appeal is that an appeal may not be taken from an available, we held in In re Watkins that order granting an extension under Section review by mandamus is not available." 74.351".48 In a series of cases, we have The present case requires us to deter- explained the limits of this review mecha- mine whether a document served on a nism. defendant can be so lacking in substance If an expert report is timely served, that it does not qualify as an expert report, even without a curriculum vitae, we held in and therefore an immediate appeal from Ogletree v. Matthews that the trial court's the denial of a motion to dismiss is avail- denial of a motion to dismiss, asserting the able under Badiga. report's inadequacy, cannot be appealed if the court also grants a thirty-day exten- C sion to cure deficiencies." "This prohibi- [11] The Act defines an expert report tion," we said, "is both logical and prac- to be tical." 50 Otherwise, a written report by an expert that pro- the court of appeals would address the report's sufficiency while its deficiencies vides a fair summary of the expert's were presumably being cured at the trial opinions as of the date of the report court level, an illogical and wasteful re- regarding applicable standards of care, sult. Moreover, because the Legislature the manner in which the care rendered authorized a single, thirty day extension by the physician or health care provider for deficient reports, health care provid- failed to meet the standards, and the ers face only a minimal delay before a causal relationship between that failure report's sufficiency may again be chal- and the injury, harm, or damages lenged and the case dismissed, if war- claimed." ranted." The qualifications and experience neces- If after an extension has been granted, the sary for an expert are prescribed in great defendant again moves to dismiss, we held detail.56 The adequacy of a report is de- in Lewis v. Funderincrk that a denial of termined by whether it "represent[s] an the motion is appealable." objective good faith effort to comply" with

47. In re McAllen Med. Ctr., Inc., 275 S.W.3d 52. 253 S.W.3d 204, 207-208 (Tex.2008). 458, 461-462 (Tex.2008). 53. 274 S.W.3d 681,685 (Tex.2009). 48. TEX. CIY. PRAC. & REM.CODE § 51.014(a)(9); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847,849. 54. 279 S.W.3d 633, 634 (Tex.2009).

49. 262 S.W-3d at 321. 55. TEX CIY PRAC & REM.CODE § 74.35I(r)(6).

50. u. 56. Id. §§ 74.35l(r)(5). 74.401-.403. 51. u. 556 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

the statutory definition." As we have ex- comings, it "implicated Dr. Ogletree's con- plained: duct", so that the trial court was author- In setting out the expert's opimons on ized to grant a thirty-day extension, and each of those elements, the report must an appeal was prohibited'" provide enough information to fulfill two [13,14] Ogletree's holding, though purposes if it is to constitute a good- sound, can be extended only so far. To faith effort. First, the report must in- stretch the meaning of deficient to include form the defendant of the specific con- a sheet of paper with the two words, "ex- duct the plaintiff has called into ques- pert report", written on it would mock the tion. Second, and equally important, Act's requirements. The expert report in the report must provide a basis for the Lewis was substantively no more than trial court to conclude that the claims that-one physician's thank-you letter to have merit." another for referring the patient," In de- No particular words 59 or formality 60 are termining where to draw the line, we are required, but bare conclusions will not suf- guided by two considerations. One is that fice." The report must address all the the Act's principal purpose is to reduce the elements," and omissions may not be sup- expense of health care liability claims. plied by inference." The Legislature could reasonably have de- [12] But as we have seen, the Act al- termined that that purpose is served by an lows a claimant a thirty-day period to cure interlocutory appeal from the denial of a deficiencies before the trial court finally motion to dismiss for want of an adequate determines that the report is inadequate expert report, but as we observed in Ogle- and the claim must be dismissed. In Ogle- tree, permitting two such appeals-one be- tree, we rejected the argument that a defi- fore the thirty-day cure period and one cient report is no report." There, the after-is simply wasteful. The other con- claimant provided the opinion of a radiolo- sideration is the goal of the Act's expert gist, without a curriculum vitae, on a urolo- report requirement: to deter frivolous gist's standard of care." Dr. Ogletree ar- claims. An inadequate expert report does gued that the report was really no report not indicate a frivolous claim if the report's at all, but we held that despite its short- deficiencies are readily curable.

57. Id. § 74.351(1). 62. Id. ("Nor can a report meet these purposes and thus constitute a good-faith effort if it 58. Am. Transitional Care Ctrs. of Tex., Inc. v. omits any of the statutory requirements."). Palacios, 46 S,W.3d 873.879 (Tex.200t).

59. Bowie Mem'l Hosp. v, Wright, 79 S.W.3d 63. See Bowie Mem'l Hosp., 79 S.W.3d at 53 48, 53 (Tex.2002) (per curiam) ("[A) report's ("[T]he report must include the required in- adequacy does not depend on whether the formation within its four corners."). expert uses any particular 'magical words.' "), 64. Ogletree v. Matthews, 262 S.W.3d 316, 60. Palacios, 46 S.W.3d at 879 ("The report 320-321 (Tex.2007). can be informal in that the information in the report does not have to meet the same re- 65. Id.at318. quirements as the evidence offered in a sum- mary-judgment proceeding or at trial."). 66. [d. at 321. 61. Id. ("A report that merely states the ex- pert's conclusions about the standard of care, 67. Lewis v. Funderburk, 191 S.W.3d 756,762- breach, and causation does not fulfill these 763 (Tex.App.-Waco 2006) (Gray, Ci.L, dis- two purposes."). senting). rev'd, 253 S.W.3d 204 (Tex.2008). SCORESBY v, SANTILLAJ."l Tex. 557 Clte as 346 S.W.3d 546 (Tex. 2011)

[15.16] We conclude that a thirty-day press no view on the adequacy of Dr. extension to cure deficiencies in an expert Marable's qualifications; the trial court did report may be granted if the report is not specifically address the matter, and it served by the statutory deadline, if it con- is premature for us to consider it. But the tains the opinion of an individual with ex- dissent's arguments, we believe, show the pertise that the claim has merit, and if the wisdom of our approach in determining defendant's conduct is implicated. We what qualifies as an expert report. recognize that this is a minimal standard, The dissent acknowledges that, as in but 'we think it is necessary if multiple Ogletree, a radiologist is qualified to opine interlocutory appeals are to be avoided, on "whether the urologist should have in- and appropriate to give a claimant the volved radiology-related devices and tech- opportunity provided by the Act's thirty- niques (the specialty in which the expert day extension to show that a claim has was qualified) in treating the patient and merit. All deficiencies, whether in the ex- whether the failure to do so resulted in pert's opinions or qualifications, are sub- injury." 69 In that instance, the dissent ject to being cured before an appeal may contends, there is an "apparent closely- be taken from the trial court's refusal to related connection" between radiology and dismiss the case. neurology." The dissent sees no such con- III nection between neurology and ENT sur- [17-19] Dr. Marable's letter in this gery that damages the brain." But surely case easily meets this standard. Claiming a neurologist's expertise is relevant in ex- expertise as a neurologist, he described plaining the connection between the Physi- the injury to Samuel's brain, ascribed it to cians' injury to blood vessels during sur- the Physicians' breach of the standards of gery and the hemiparesis and weakness care, and stated that their breach caused Simon suffered. What further relevance Samuel's partial paralysis and other linger- that expertise has to Santillan's claim ing debilities. As an expert report, Dr. should first be addressed by the trial Marable's letter was deficient. For exam- court. In no event, however, do we think ple, it did not state the standard of care a claimant's opportunity to cure and a but only implied that it was inconsistent defendant's immediate right to appeal with the Physicians' conduct. But there is should turn on such fine distinctions, ei- no question that in his opinion, Santillan's ther in an expert's qualifications or in his claim against the Physicians has merit. opinions. [20] The dissent argues that Dr. Mara- This case also demonstrates the difficul- ble was not qualified to give an opinion ty with any more stringent standard. The about the Physicians' conduct because he trial court denied the Physicians' motions is only a neurologist, not a surgeon, and to dismiss and ordered that Santillan have therefore his letter is so deficient it does a thirty-day extension to cure deficiencies not qualify as an expert report. The Act in Dr. Marable's report nearly three years requires that Dr. Marable's knowledge, ago. Santillan had already served an training or experience, and practice be amended report, in response to which the "relevant" to Santillan's claim." We ex- Physicians had filed renewed objections

68. See TEX CIV. PRAC. & REM. CODE 70. ld. § § 74.3SI(r)(S), 74.40\(a), (c). 71. Id. 69. Post at - . 558 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

and again moved to dismiss the case. ly it is squarely presented, and I am confi- Now that we have dismissed this appeal dent today's decision will brighten the line for want of jurisdiction, the trial court will between deficient-report cases (where an rule on the objections to the. amended re- extension is discretionary) and no-report port and the motions to dismiss. Whatev- cases (where dismissal is mandatory). er the ruling, another appeal will undoubt- * * * edly follow. Our holding today will all but In a trio of concurrences in 2007,2 2008.;) eliminate the first, wasteful appeal. Just and 2009,4 I focused on this nagging ques- as importantly, it will help assure that a tion: Is there a legal difference between claimant, after being apprised of a defen- filing nothing and filing something that dant's objections to an expert report, and amounts to nothing? That is, can a filing having had an opportunity to discuss those be so utterly lacking in the required statu- objections at a hearing before the trial tory elements as to be no report at all, court, will have a fair opportunity to cure thus requiring dismissal? I join today's any deficiencies and demonstrate that his decision, which I read to confirm my con- claim is not frivolous and should be deter- mined on the merits. sistently stated view: If a document bears zero resemblance to what the statute envi- * * * sions-more to the point, if it never as- Accordingly, the judgment of the court serts that anyone did anything wrong-it of appeals dismissing this appeal for want cannot receive an extension. of jurisdiction is In Ogletree v. Matthews, I described Affi:nned. what I naively hoped would be "a rare bird in Texas legal practice" 5_a plaintiff pass- Justice WILLETT filed a concurring opinion. ing off as a bona fide report a document so facially absurd that, "no matter how chari- Justice JOHNSON filed a dissenting tably viewed, it simply cannot be deemed opinion, in which Justice WAINWRIGHT an 'expert report' at all, even a deficient joined. one." 6 The deficient-or-no-report issue Justice WILLETT, concurring. was not present in Ogletree, but I noticed Since 2006 we have circled an issue both it in another then-pending case, Lewis v. recurring and elusive: whether any docu- Funderburk, filed one week before Ogle- ment, even one that never accuses anyone tree.1 of committing malpractice, suffices to war- In Funderburk, the Court confronted rant an unreviewable thirty-day extension "an actual sighting of this rare bird, a under Section 74.351(c).1 Until today, the species that in my view merits extinction, issue was procedurally (and frustratingly) not conservation." 8 The "report" in Fun- unreachable and thus unresolvable. Final- derburk was a thank-you letter from one

I. See TEX. CIV. PRAC & REM.CODE § 74.35I(c). 5. 262 S.W.3d at 324 (Willett, J., concurring),

2. Ogletree v, Matthews, 262 S.W.3d 316, 323 6. [d. at 323. (Tex.2007) (Willett, J., concurring).

3. Lewis v. Funderburk, 253 S.W.3d 204, 210 7. Funderburk, 253 S. W.3d at 2.09 (Willett, J., (Tex.200S) (Willett, J., concurring). concurring).

4. [11 re Watkins, 279 S.W.3d 633, 636 (Tex. 8. [d. 2009) (Willett, J.. concurring). SCORESBY v. S~"lTILLAN Tex. 559 Cite as 346 S.W.3d 546 (Tex. 2011)

doctor to another-a letter that never once ry-dismissal provision u-or alternatively, in any manner, way, shape, or form ac- this Court's express adoption of a grace- cused anYQtL8 of malpractice." This period test that is indeed gracious, allow- thpnks-for-your-referral letter was no ing extensions for most everything. more a medical-expert report "than a doc- Under the Court's admittedly "lenient tor-signed prescription or Christmas card standard," 15 the document must merely would be," I wrote, adding, "If a report is "[contain] a statement of opinion by an missed, not just amiss, courts are remiss if individual with expertise indicating that they do not dismiss." 111 Alas, the defen- the claim asserted by the plaintiff against dant did not ':"'aise the "no report" issue, the defendant has merit." 16 The line is thus foreclosing a merits-based challenge." forgiving but bright: The "report" must Finally came In re Watkins, where a actually allege someone committed mal- plaintiff merely filed a narrative of treat- practice. The genesis of this elemental ment, something that omitted every statu- requirement is found in Ogletree, where torily required element and had no appar- the Court first indicated that the purport- ent relationship to a medical-malpractice ed report must implicate a provider's con- case." Like Funderburk, this case also duct. 17 It merits emphasis, however, that had a procedural wrinkle that kept the today's standard, benevolent as it is, is not marquee "no report" vs. "deficient report" satisfied by any medical-related piece of issue out of reach. 13 But the rare-bird paper; the bar is low but not subterrane- sightings, I noticed, were becoming more an. For example, the "report" in Funder- commonplace. And they would proliferate burk would surely fail even today's lax on our docket, I predicted, absent appel- test. The thank-you letter in that case late enforcement of the statute's mandato- never mentioned malpractice by anyone,

9. The leiter is reproduced in its entirety in mus is unnecessary. If the report was merely Chief Justice Gray's dissent in the court of deficient, then an interlocutory appeal was appeals. See Lewis v. Funderburk, 191 prohibited, and granting mandamus to review S.W.3d 756, 762-63 (Tex.App.-Waco 2006) it would subvert the Legislature's limit on (Gray, c.r.. dissenting), rev'd, 253 S.W.3d 204 such review.") (citations omitted). (Tex.2008 ). 14. My sense is that such sightings have in- 10. Funderburk, 253 S.W.3d at 210-11 (Willett, deed grown more prevalent, making Chapter J., concurring). 74 defendants perhaps "identify with the sea- side residents of Bodega Bay, besieged by II. [d. at 208 (majority opinion) ("We do not avian attacks," In re Walkins, 279 S.W.3d at reach the question addressed in the concur- 637 n. 13 (Willett, J., concurring) (citing THE ring opinions here because it is not raised. BIRDS (Universal Pictures 1963»). or else As stated in his reply brief. '(Dr.] Lewis has those Arkansans who witnessed the so-called made it abundantly clear that he is not ap- Aflockalypse last New Year's Eve, when thou- pealing the trial court's [initial] order (no sands of blackbirds and starlings fell mvsteri- matter how vehemently he disagrees with it): ously from the skies. but instead is only appealing the order deny- ing his second motion to dismiss."). 15. 346 S.W.3d 546, 549. 12. 279 S.W.3d at 637 (Willett, J.. concurring). 16. [d. at 549. 13. [d. at 634 (majority opinion) ("The sepa- rate writings join issue again today on the 17. 262 S.W.3d at 321 ("Because a report I!WI question whether the item served was a defi- implicated Dr. Ogletree's conduct was served cient report or no report at all. But here it and the trial court granted an extension. the does not matter. If no report was served, court of appeals could not reach the merits of interlocutory appeal was available, so ruanda- the motion to dismiss.") (emphasis added). 560 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

even in the most implicit or glancing man- elements are absent as opposed to defi- .nero Again, it is not merely that the letter cient: omitted every required statutory element. (b) If, as to a defendant physician or Rather, it never even hinted at having any health care provider, an expert report relationship to a malpractice case at all- has not been served within the period no mention of a claim or a defendant, much specified by Subsection (a), the court, on less a claim that "an individual with exper- the motion of the affected physician or tise" indicates "has merit." 18 health care provider, shall, subject to * * * Subsection (c), enter an order that: Based on my understanding of the (l) awards to the affected physician Court's "minimal standard" 19_r equiring or health care provider reasonable at- that someone with expertise express an torney's fees and costs of court in- opinion that the plaintiff has a meritorious curred by the physician or health care malpractice claim against the defendant-I provider; and join the Court's decision. (2) dismisses the claim with respect to Justice JOHNSON, joined by Justice the physician or health care provider, WAINWRIGHT, dissenting. with prejudice to the refiling of the claim. The Court says that a plaintiff who time- ly files a defective expert report is eligible (c) If an expert report has not been for an extension of time to cure the report served within the period specified by if Subsection [the report] contains a statement of (a) because elements of the report are opinion by an individual with expertise found deficient, the court may grant one indicating that the claim asserted by the 3o-day extension to the claimant in or- plaintiff against the defendant has merit. der to cure the deficiency. An individual's lack of relevant qualifica- TEX. Crv. PRAC. & REM.CODE § 74.35l(b), tions and an opinion's inadequacies are (c); 1 see In re Watkins, 279 S.W.3d 633, deficiencies the plaintiff should be given 634-35 (Tex.2009) (Johnson, J., concurring) an opportunity to cure if it is possible to ("The definition [of expert report] requires do so. that for a document to qualify as a statuto- :346 S.W.3d 546, 549. In my view the ry expert report, it must demonstrate Court's standard does not conform to re- three things: (1) someone with relevant quirements the Legislature imposed in au- expertise (' "[ejxpert report" means a writ- thorizing an extension to cure a deficient ten report by an expert'), (2) has an opin- report. I respectfully dissent. ion ('that provides a fair summary of the A trial court is statutorily authorized to expert's opinions'), and (3) that the defen- grant an extension to cure elements of an dant was at fault for failing to meet appli- expert report that are found deficient, not cable standards of care and thereby to cure a report that substantively is not a harmed the plaintiff.... "), Absent an ex- report, nor to cure a report from which pert with relevant expertise, I do not see

18. 346 S.W.3d at 549. The narrative in In re 19. Id. at 557. Watkins might also fail today's test, as it lacked every required statutory element. 1. Further references to the Civil Practice and though unlike the referral letter in Fumier- Remedies Code will be by referring to section burk, it at least mentions (twice) the defen- numbers unless otherwise indicated. dant physician's name. SCORESBY v, SANTILLAN Tex. 561 CUe as 346 S.W.3d 546 (Tex. 2011)

how there can be an expert report under (Tex.2ooS)). The Court has recognized the statute, because the foundation of an that not every doctor is qualified to render expert report is the requirement that the an opinion about every aspect of medicine report be by a qualified expert: "Expert" or medical science. In re McAllen Med. for purposes of a report means: Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2ooS); [Wlith respect to a person giving opinion Broden, v. Heise, 924 S.W.2d 14S, 152 testimony regarding whether a physi- (Tex.1996) ("[G]iven the increasingly spe- cian departed from accepted standards cialized and technical nature of medicine, of 'medical care, an expert qualified to there is no validity, if there ever was, to testify under the requirements of Sec- the notion that every licensed medical doc- tion 74.401. . . . . tor should be automatically qualified to TEX. Crv. PRAC. & REM.CODE testify as an expert on every medical ques- § 74.35l(r)(5)(A). Section 74.401 provides tion."). specific requirements for an expert to be The Court's new test apparently allows qualified to provide the section 74.351 re- a report to qualify as a deficient report port: even if the report demonstrates none of (a) In a suit involving a health care lia- the three requirements of section bility claim against a physician for injury 74.401(a). The test requires only that the to or death of a patient, a person may person rendering the opinion have some qualify as an expert witness on the issue type of undefined level of expertise. It of whether the physician departed from abandons the requirements that the report accepted standards of medical care only show the expert (1) has knowledge of ac- if the person is a physician who: cepted standards of care for the diagnosis, (1) is practicing medicine at the time care, or treatment of the illness, injury, or such testimony is given or was prac- condition involved in the claim; and (2) ticing medicine at the time the claim qualifies on the basis of training or experi- arose; ence to offer an expert opinion regarding (2) has knowledge of accepted stan- those accepted standards of medical care. dards of medical care for the diagno- See TEX. CIV. PRAC. & REM.CODE sis, care, or treatment of the illness, § 74.401(a)(2), (3). Nor does the test re- injury, or condition involved in the claim; and quire a showing that the expert is practic- ing medicine or was doing so when the (3) is qualified on the basis of training claim arose. See id. § 74.401(a)(1). or experience to offer an expert opin- ion regarding those accepted stan- Dr. Marable's report says nothing about dards of medical care. his surgical qualifications. The report Id. § 74.401(a). The Court has said that does not give any facts or information "[a] report by an unqualified expert will which would qualify him to opine on the sometimes (though not always) reflect a standards of care for the type of surgery good-faith effort sufficient to justify a 30- performed in this case, and he did not day extension." In re Busier, 275 S.W.3d attach a CV to the report," The report 475, 477 (Tex.2ooS) (per curiam) (citing was written on a letterhead showing that Leland v. Brandel; 257 S.W.3d 204, 208 he maintains board certification in neurolo-

2. An amended report by Dr. Marable with a it did not show that Dr. Marable had any CV attached was filed on the day the defen- training or expertise in the type of surgery dants' motions to dismiss were heard. The involved here. CV was not considered bv the trial court, but 562 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES

gy and psychiatry. In his report he makes . expert report had been filed because the it clear that he is basing his jipinion on his report was by a radiologist who was not expertise in neurology, not surgery: "AR a qualified to express an opinion on the stan- board certified neurologist, my opinion is dard of care for a urologist. 262 S.W.3d that Dr. Ducic violated the standards" 'Of 316, 319 (Tex.2007). The urologist defen- care, as well as Dr. Scoresby, and as' a dant had performed a urethral catheteriza- result [Santillan's] damages are that of a tion during which the patient suffered right-sided hemiparesis with possibility of bruising and bladder perforation. Id. at seizure foci in the future." The neurologi- 317. We held that the radiologist's report cal expertise on which Dr. Marable. relies was deficient, not absent. Id. at 320. But does not involve surgery. See WILSON in Ogletree the radiologist was opining STEGEMAN. MEDICAL TERMS SIMPLIFIED 106 about whether the urologist should have (1976) (noting that neurologists do not per- performed the catheterization under flou- form surgery); American Academy of roscopic guidance in order to avoid or Neurology, Working unih. Your Doctor, more timely diagnose the perforation. Id. https://patients.aan.comlgoiworkingwith at 318. In that instance, the radiologist yourdoctor (last visited Apr. 18, 2011) was opining about whether the urologist ("Neurologists do not perform surgery."). should have involved radiology-related de- Dr. Marable's report does not claim that vices and techniques (the specialty in he now performs or has in the past per- which the expert was qualified) in treating formed surgery, much less this particular the patient and whether the failure to do type of surgery. The report neither so resulted in injury. The matter before claims that he has knowledge of the stan- us is different from Ogletree because there dard of care for performing the surgery is no apparent closely related connection nor that he is qualified on the basis of between the expertise involved in the spe- training or experience to offer an expert cialty of neurology and the expertise in- opinion on those standards of care. See volved in knowing how to perform, and TEX. CIV. PRAC. & REM.CODE 74.40l(a)(2), (3). performing, the surgery performed by The report does not say that he has partic- ipated in, observed, or even read about Drs. Scoresby and Ducic. how to do "procedures of left mediomaxil- In McAllen Medical Center, 275 S.W.3d lectomy, excision of neoplasm of the maxil- 458, we considered the validity of a doc- la, calvarial bone growth and reconstruc- tor's expert reports in negligent creden- tion of maxilla and excision of tumor of tialing suits against the medical center. pterygopalatin structures," which were the McAllen challenged the adequacy of the surgical procedures performed by Drs. reports on the basis that the doctor was Scoresby and Ducic.' In short, nothing in not qualified to express opinions as to the Dr. Marable's report raises an inference credentialing process. Id. at 462. We that he is a qualified expert as to this type agreed with McAllen and held that the of surgery, as prescribed by statute, and reports were inadequate: the report is all that was before the trial On this record, the plaintiffs have not court in regard to his qualifications. established Dr. Brown's qualifications. In Ogletree v. Matthews, we considered "The standard of care for a hospital is a defendant's contention that no statutory what an ordinarily prudent hospital

3. Santillan's attorney represented during oral Marable that he had seen surgery of this type argument that he believed Dr. Marable's because he had treated patients after they had amended report contained statements by Dr. the surgery. SCORESBY v, SANTILLAN Tex. 563 Cite as 346 S.W.3d 546 (Tex. 2011)

would do under the same or similar cir- care and those negligent activities having cumstances." Nothing in the record caused damages were sufficient to support here shows how Dr. Brown is qualified an extension of time. But the report sets to address this standard. Nor can we out his opinion as a neurologist, not a infer that she may have some knowledge physician with surgical expertise. The or expertise that is not included in the Legislature did not intend that an expert record. report could be bya doctor with no dem- Moreover. "a negligent credentialing onstrated or inferable experience and claim involves a specialized standard of training in-a practice area who reads medi- care" and "the health care industry has cal records and writes a report containing developed various guidelines to govern a the simplistic indictments in the report hospital's credentialing process." Dr. here: the defendants negligently lacerated Brown's reports contain no reference to the brain and further surgery was re- any of those guidelines, or any indication quired. See TEX. CIV PRAC. & REM.CODE that she has special knowledge, training, § 74.40l(a). or experience regarding this process. Nor was Dr. Brown qualified merely The Court says that "'there are consti- because she is a physician; "given the tutional limitations upon the power of increasingly specialized and technical courts ... to dismiss an action without nature of medicine, there is no validity, affording a party the opportunity for a if there ever was, to the notion that hearing on the merits of his cause.''' 346 every licensed medical doctor should be SW.3d at 554 (quoting TransAmerican automatically qualified to testify as an Natural Gos Corp. v. Powell, 811 S.W.2d expert on every medical question." 913, 918 (Tex.l991). I agree. But the Id. at 463 (citations omitted). statement does not fit here. First of all, the constitutionality of the statute is not The substance of the issue before us is challenged. Second, even if it were, the similar to the issue we decided in McAllen Medical Center. Dr. Marable's report in- statutory requirement of a timely report dicates that the defendants violated stan- by a qualified expert did not spring upon dards of care for the surgery and their Santillan without warning. The require- negligent activity caused damages to San- ment was in place before the surgery took tillan. But Dr. Marable's report does not place in January 2006, while suit was not show he was qualified under the statute to filed against the defendant doctors and give such an expert opinion, nor did his Tarrant County Hospital until January opinion about the surgeons' decisions and 2008. Santillan had time to find a quali- actions during surgery involve his special- fied expert to provide the report required ty except to the extent a physician with his to show his claim had merit, if he could specialty would have been involved in post- find such an expert. surgical care and possibly a decision to I would hold that failure to timely serve reoperate. a report by an expert qualified under the If Dr. Marable's report had in some statute is not merely a deficiency in an manner demonstrated that he was quali- element of the report, it is a deficiency fied to render an opinion about the stan- going to the question of whether the re- dard of care for the surgery involved, then port is competent and is entitled to be I might agree that his conclusory state- given any weight. And I would hold that ments about the defendants having negli- it is not an expert report and the tiling of gently violated applicable standards of such a report supports inferences that a 564 Tex. ;~46 SOUTH WESTERN REPORTER, 3d SERIES

proper report by a qualified expert was :3. Habeas Corpus e::>463.1 ~ not available, the claim lacks merit, and Defendant may challenge an indict- the claim should be dismissed. ment .that, on its face, is barred by the I would reverse the judgment of the statute of timitations by way of a pretrial court of appeals and dismiss the case. See application for writ of habeas corpus. Badiga v. Lopez, 274 S.W.3d 681. .684-85 4. Habeas Corpus e=>463.1 ", (Tex.2009). If an indictment alleges that the stat- ute of limitations is tolled, the sufficiency of that tolling allegation may not be chal- lenged by a pretrial writ of habeas corpus. 5. Habeas Corpus e=>463.1, 474 Ex parte Tenika BROOKS. Facially barred indictments that can- No. 12-06--00378-CR. not be repaired have a defect that is incur- able, and the statute of limitations is an Court of Appeals of Texas, absolute bar to prosecution, but a repara- Tyler. ble indictment or tolling provision may be June 20, 2007. amended and any defect repaired; thus, Discretionary Review Granted the first is the proper subject of a pretrial Oct. 10, 2007. application for habeas corpus, the second Background: Defendant charged by in- is not. dictment with aggregate theft applied for 6. Habeas Corpus e=>814 pretrial writ of habeas corpus. The 145th Appellate court lacked jurisdiction to Judicial District Court, Nacogdoches address merits of theft defendant's inter- County, Campbell Cox II, J., denied appli- locutory appeal from denial of her pretrial cation, and defendant took interlocutory application for writ of habeas corpus, appeal. where defendant's complaint as to suffi- Holding: The Court of Appeals, Brian ciency of state's anticipated argument as to Hoyle, J., held that it lacked jurisdiction to tolling of statute of limitations was not address merits of defendant's appeal. proper subject of pretrial application for Appeal dismissed. writ of habeas corpus, and both imputed tolling allegation and indictment itself 1. Criminal Law e=>147, 157 were reparable. Prosecutions for theft as a felony 7. Habeas Corpus e=>275.1 must be initiated within five years of the Trial court's decision to dismiss first theft; however, that period of limitations is indictment against defendant charged in tolled for the time that an indictment is second indictment with aggregate theft pending. Vernon's Ann.Texas C.C.P. arts. could not be raised by pretrial application 12.0l(4)(A), 12.05(b). for writ of habeas corpus, where defendant 2. Criminal Law e=>157 had remedies at law and potential injury Prior indictment tolls the statute of resulting from delaying consideration of limitations when the subsequent indict- issue until after conviction and' appeal was ment alleges the same conduct, same act, neither proximate nor serious; defendant or same transaction. Vernon's Ann.Texas had adequate remedies on appeal, or could C.C.P. art. 12.05(b). tile motion to dismiss or quash second