Vivek Goswami, M.D. and Austin Heart, PLLC v. Nancy Jo Rodriguez

• Court: Court of Appeals of Texas
• Decided: January 7, 2015
• Docket: 03-14-00717-CV
• Status: Published

Opinion

ACCEPTED 03-14-00717-CV 3677007 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/7/2015 10:35:57 AM JEFFREY D. KYLE CLERK NO. 03-14-00717-CV

FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 1/7/2015 10:35:57 AM JEFFREY D. KYLE Clerk VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC

Appellants

v.

NANCY JO RODRIGUEZ

Appellee

ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS

BRIEF FOR APPELLANTS

Chris Knudsen Texas Bar No. 24041268 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Email: cknudsen@serpejones.com

Counsel for Appellants Vivek Goswami, M.D. and Austin Heart, PLLC

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellants provide the following complete list of all parties and counsel to the trial

court’s Order that forms the basis of this appeal.

Trial and Appellate Counsel for Appellants Vivek Goswami, M.D. and Austin Heart, PLLC:

Chris Knudsen Texas Bar No. 24041268 Nicole Andrews Texas Bar No. 00792335 SERPE JONES ANDREWS CALLENDER & BELL, PLLC 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499 Emails: cknudsen@serpejones.com nandrews@serpejones.com

Trial Counsel for Appellee Nancy Jo Rodriguez:

L. Todd Kelly Texas Bar No. 24035049 The Carlson Law Firm 11606 N. IH-35 Austin, Texas 78753 Telephone: (512) 346-5688 Facsimile: (512) 719-4362 Email: TKelly@carlsonattorneys.com

ii Trial Counsel for Defendants The Walgreen’s Co. and Sarah Elizabeth McGuire (not parties to this appeal):

Cynthia Day Grimes State Bar No. 11436600 STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215-1157 Telephone: (210) 250-6000 Facsimile: (210) 250-6100 Email: Cynthia.Grimes@strasburger.com

Trial Counsel for Defendant St. David’s Health Care Partnership (not a party to this appeal):

Missy Atwood State Bar No. 01428020 GERMER BEAMAN & BROWN PLLC 301 Congress Avenue, Suite 1700 Austin, Texas 78701 Telephone: (512) 472-0288 Facsimile: (512) 472-0721 Email: matwood@germer-austin.com

iii TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS ..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE .................................................................................. 2

ISSUES PRESENTED............................................................................................... 2

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 6

ARGUMENT & AUTHORITY ................................................................................ 7

I. STANDARD OF REVIEW .......................................................................... 7

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN FINDING DR. BREALL’S REPORT SATISFIED THE REQUIREMENTS OF CHAPTER 74 AND DENYING APPELLANTS’ MOTION TO DISMISS. ....................................................... 8

A. Legislative Intent Of Chapter 74................................................. 8

B. Chapter 74’s Expert Report Requirements ................................. 9

C. Dr. Breall’s Report Does Not Constitute A Good Faith Effort to Comply With Section 74.351 .................. 11

1. Dr. Breall’s report provides no facts to support his conclusions and thus does not constitute an expert report under Chapter 74 ................. 12

2. Dr. Breall fails to identify the standard of care applicable to Appellants .......................................... 16

iv 3. Dr. Breall fails to explain how Dr. Goswami and Austin Heart breached the applicable standard of care ............................................................... 19

4. Dr. Breall’s report fails to explain how an alleged breach in the standard of care by Dr. Goswami or Austin Heart caused Appellee’s injuries .......................................................... 22

D. By Serving A Report Like Dr. Breall’s, Appellee Effectively Negates The Purpose Of Chapter 74’s Expert Report Requirement ...................................................... 26

CONCLUSION & PRAYER ................................................................................... 26

CERTIFICATE OF COMPLIANCE ....................................................................... 28

CERTIFICATE OF SERVICE ................................................................................ 29

APPENDIX

Trial Court Orders........................................................................................... A

Cases ............................................................................................................... B

v TABLE OF AUTHORITIES

Cases: American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) ........................................................................... passim Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex. App.—Austin 2007, no pet.) ............................................10 Bogar v. Esparza, 257 S.W.3d 354 (Tex. App.—Austin 2008, no pet.) ..............................................8 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) ........................................................................ 10, 13, 17 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ........................18 Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) .................................................................................10 Fung v. Fischer, 365 S.W.3d 507(Tex. App.—Austin 2012, no pet.), ............................................24 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........................10 Harris County Hospital District. v. Garrett, 232 S.W.3d 170 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ....................7, 16 Hebert v. Hopkins, 395 S.W.3d 884 (Tex. App.—Austin 2013, no pet.) .................................... passim Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ......................................................................... passim Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) .....................................................................................9 Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454 –5 (Tex. App.—Austin Aug. 22, 2014, no pet.) ........................................................23

vi Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068 (Tex. App.—Eastland Mar. 23, 2006, pet. denied) ...............................................14 Regent Care Center of San Antonio II, Limited Partnership v. Hargrave, 300 S.W.3d 343 (Tex. App.—San Antonio 2009, pet. denied) ............................25 Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL 6938538 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, ..................................................13 Smith v. Wilson, 368 S.W.3d 574 (Tex. App.—Austin 2012, no pet.) .................................... passim Strom v. Memorial Hermann Hospital System, 110 S.W.3d 216 .............................................................................................. 16, 18 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (Tex. App.—Corpus Christi 2004, no pet.) ........................ 18, 19 Taylor v. Fossett, 320 S.W.3d 570 (Tex. App.—Dallas 2010, no pet.)...................................... 13, 21 Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (Tex. App.—El Paso 2011, no pet.) ...........................................18 W.B.M. Management Co. v. Flores, No. 07-14-00008-CV, 2014 WL 1691362 –6 (Tex. App.—Amarillo Apr. 25, 2014, no pet.) .............................................. 13, 21 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ...................................................................................7 Wood v. Tice, 988 S.W.2d 829 (Tex. App.—San Antonio 1999, pet. denied) ..............................8

Statutes:

TEX. CIV. PRAC. & REM. CODE § 74.351.......................................................... passim TEX. CIV. PRAC. & REM. CODE § 74.351(a) .........................................................9, 19

vii TEX. CIV. PRAC. & REM. CODE § 74.351(b) ...................................................... 1, 7, 9 TEX. CIV. PRAC. & REM. CODE § 74.351(l) ................................................................9 TEX. CIV. PRAC. & REM. CODE § 74.351(r)................................................................9 TEX. REV. CIV. STAT. ANN. art. 4590i ..................................................................8, 26

viii NO. 03-14-00717-CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC

ON APPEAL FROM THE 419TH JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellant Vivek Goswami, M.D. and Austin Heart, PLLC (“Appellants”)

file this appeal from an order denying their motion to dismiss pursuant to section

74.351(b) of the Texas Civil Practices and Remedies Code in Cause No. D-1-GN-

14-000903; Nancy Jo Rodriguez v. The Walgreen Co., et al., in the 419th Judicial

District Court of Travis County, Texas, before the Honorable Visiting Judge Gus J.

Strauss. STATEMENT OF THE CASE

Appellee Nancy Jo Rodriguez (“Appellee”) filed a health care liability claim

against several defendants, including Appellants, based on Appellee’s taking of a

medication known as Pradaxa. (CR 4–12). With her petition, Appellee served a

report authored by Jeffrey A. Breall, M.D., Ph.D. (“Dr. Breall”). (CR 43–44).

Appellants objected to Dr. Breall’s report shortly thereafter. (CR 119–52). Over

the next three months, Appellee did not serve any new or amended reports. After

the expiration of the statutory deadline to serve expert reports under Chapter 74,

Appellants moved to dismiss Appellee’s claim. (CR 189–95). However, the trial

court entered an order finding that Dr. Breall’s report was adequate and denying

Appellants’ motion to dismiss. (CR 344–45, 365–66). Appellants subsequently

filed this interlocutory appeal from that order. (CR 346–50).

ISSUES PRESENTED

1. Whether the trial court abused its discretion when holding Dr. Breall’s

report was adequate under Chapter 74 despite Dr. Breall only offering conclusory

opinions that did not link the facts to his conclusions.

2. Whether the trial court abused its discretion in denying Appellants’

motion to dismiss pursuant to section 74.351 of the Texas Civil Practices and

Remedies Code.

2 STATEMENT OF FACTS

In 2012, Appellee was a patient of Austin Heart, PLLC (“Austin Heart”)

where she received treatment for an abnormal sinus rhythm in her heart. (CR 6).

As a patient of Austin Heart, Appellee was treated by David Kessler, M.D. (“Dr.

Kessler”) and Vivek Goswami, M.D. (“Dr. Goswami”), both of whom are

cardiologists. (Id.). In her petition, Appellee states that, on March 27, 2012, Dr.

Kessler “orders that [Appellee] stop her use of the drug Pradaxa because she is

maintaining her sinus rhythm without it.” (Id.). However, Appellee alleges “this

order to stop the medication was not followed by Dr. Goswami.” (Id.). Appellee

nonetheless admits she continued to refill her prescription for Pradaxa despite Dr.

Kessler’s order to stop. (Id.). Appellee claims her continued use of Pradaxa caused

her hospitalization on July 2, 2012. (Id.).

On March 26, 2014, Appellee filed suit against The Walgreen Company,

Sara E. McGuire, St. David’s Health Care Partnership, Austin Heart, Dr. Kessler,

and Dr. Goswami (collectively “Defendants”). (CR 4–5). With her petition,

Appellee served Defendants with a curriculum vitae and report from Jeffrey Chad

Hardy, Pharm.D., M.S. dated February 21, 2014 (“Hardy’s report”) and a

curriculum vitae and report from Jeffrey A. Breall, M.D., Ph.D. dated March 18,

2014 (“Dr. Breall’s report”). (CR 13–44). There is no dispute that Hardy’s report

3 does not apply to Appellants. Rather, only Dr. Breall’s report references

Appellants.

As addressed more fully below, Dr. Breall’s report fails to provide any facts

surrounding the care and treatment provided by Dr. Goswami or Austin Heart. (CR

43–44). In fact, Dr. Breall’s report fails to even identify which medical records he

reviewed to support the opinions in his report. (Id.). If Dr. Breall provided the facts

from the relevant records, Dr. Breall’s report would have informed the trial court

that, prior to Dr. Kessler’s order to stop taking Pradaxa on March 27, 2012,

Appellee already had a prescription for Pradaxa allowing for five refills. (CR 330–

31). Specifically, Appellee was prescribed Pradaxa on February 10, 2012, and she

filled the prescription on February 14, 2012. (CR 330). On March 16, 2012,

Walgreen’s requested five refills of Pradaxa. (CR 331). On March 27, 2012, Dr.

Kessler ordered Appellee to stop taking the Pradaxa. (CR 6). Yet, on May 4, 2012,

Appellee refilled her prescription using the authority provided to Walgreen’s on

March 16, 2012. (CR 332).1 On June 16, 2012, Appellee again refilled her

prescription using the authority provided to Walgreen’s on March 16, 2012. (CR

333).

A review of these records would have also informed the trial court that

Appellee used this prescription that pre-dated Dr. Kessler’s order to obtain refills

1 This Audit / Board of Pharmacy Inspection Report shows the “Original Date” for the prescription was 3/16/2012 16:04. (Id.).

4 after Dr. Kessler’s March 27, 2012 order without any communication with Dr.

Goswami or Austin Heart. (CR 332–33). Rather than provide these facts from the

records, Dr. Breall chose not to provide any facts.

On May 12, 2014, Appellants objected to Dr. Breall’s report. (CR 119–27).

In their objections, Appellants specified that Dr. Breall failed to identify the

standard of care applicable to each Appellant, failed to identify the alleged acts or

omissions by each Appellant that amounted to a breach in the standard of care, and

failed to explain the causal relationship between each alleged breach and the

injuries alleged. (Id.). Despite having knowledge of these objections since May 12,

2014, Appellee failed to amend or supplement Dr. Breall’s report over the next

three months.

After the deadline for serving expert reports expired on August 19, 2014,

Appellants filed their motion to dismiss. (CR 189–99).2 On October 20, 2014,

Appellee filed her response to Appellants’ motion to dismiss arguing that Dr.

Breall’s report was sufficient and even moved for sanctions. (CR 297–306). On

October 29, 2014, the trial court held a hearing on Appellants’ motion to dismiss.

(RR 1–48).

2 Since Dr. Breall’s report offered no criticisms of Dr. Kessler, Dr. Kessler also filed a motion to dismiss. (CR 171–80). Rather than face a hearing on Dr. Kessler’s motion to dismiss and motion for attorneys’ fees, Appellee non-suited Dr. Kessler. (CR 200–02).

5 On October 30, 2014, the Honorable Visiting Judge Gus J. Strauss issued a

letter opinion finding “that the report of Dr. Breall pertaining to Dr. Goswami and

Austin Heart is adequate under [Chapter] 74 and the plaintiff’s claims will proceed.

No sanctions [or] attorney’s fees will be ordered.” (Appx. A; CR 344–45). In this

same order, the trial court granted Walgreen’s and Sarah E. McGuire’s motion to

dismiss. (Id.). On December 4, 2014, the trial court signed a more formal order

denying Appellants’ motion to dismiss under section 74.351 of the Texas Civil

Practices and Remedies Code. (Appx. A; CR 365–66). On November 17, 2014,

Appellants timed filed their notice of appeal and this interlocutory appeal ensued.

(CR 346–52).

SUMMARY OF THE ARGUMENT

The trial court abused its discretion in holding that Dr. Breall’s report was

adequate under Chapter 74 and in denying Appellants’ motion to dismiss under

Chapter 74. In his report, Dr. Breall fails to provide any of the facts surrounding

Appellee’s care and treatment in this case, and Dr. Breall makes no attempt to link

the facts to his conclusions on the elements of a Chapter 74 expert report. The

Texas Supreme Court holds that, when a report lacks any explanation linking the

expert’s conclusion to the relevant facts, a trial court abuses its discretion if it

denies the defendant’s motion to dismiss. Additionally, Dr. Breall failed to identify

the standard of care applicable to each Appellant, failed to explain how each

6 Appellant breached the standard of care, and failed to explain the causal link

between each Appellant’s alleged breach and the injuries alleged. Accordingly, Dr.

Breall’s report did not constitute a good faith effort to comply with the

requirements of section 74.351, and the trial court erred in denying Appellants’

motion to dismiss.

ARGUMENT & AUTHORITY

I. STANDARD OF REVIEW

A trial court’s ruling on a motion to dismiss for failure to comply with

section 74.351(b) of the Texas Civil Practice and Remedies Code is subject to

review for abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). However, if an expert report contains

only conclusions about the statutory elements in section 74.351, the trial court has

“no discretion but to conclude ... that the report does not represent a good-faith

effort” to satisfy the statute. Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. App.—

Austin 2012, no pet.) (citing Palacios, 46 S.W.3d at 877, 880). Also, an incorrect

construction of the law or a misapplication of the law to undisputed facts is an

abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992);

Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston

[1st Dist.] 2007, no pet.).

7 II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN FINDING DR. BREALL’S REPORT SATISFIED THE REQUIREMENTS OF CHAPTER 74 AND DENYING APPELLANTS’ MOTION TO DISMISS.

A. Legislative Intent Of Chapter 74.

The Legislature enacted Article 4590i (now codified in Chapter 74),

including its expert reporting requirement, for the purpose of deterring frivolous

lawsuits against health care providers. TEX. REV. CIV. STAT. ANN. art. 4590i;

Palacios, 46 S.W.3d at 879 (citing Wood v. Tice, 988 S.W.2d 829, 830 (Tex.

App.—San Antonio 1999, pet. denied)). “The Legislature has determined that

failing to timely file an expert report, or filing a report that does not evidence a

good-faith effort to comply with the definition of an expert report, means that the

claim is either frivolous, or at best has been brought prematurely. This is exactly

the type of conduct for which sanctions are appropriate.” Bogar v. Esparza, 257

S.W.3d 354, 371 (Tex. App.—Austin 2008, no pet.).

As evidenced by this case, the purpose of deterring frivolous lawsuits is

effectively negated when a claimant serves an expert report that conceals the facts

surrounding the care in question and only provides vague conclusions on certain

elements of a Chapter 74 expert report. Appellee should not be entitled to pursue a

frivolous (or at best premature) claim by serving such a report.

8 B. Chapter 74’s Expert Report Requirements.

Chapter 74 requires that, when a plaintiff asserts a health care liability claim,

she must serve each defendant physician and health care provider with an expert

report along with the expert’s curriculum vitae within 120 days of filing suit. See

TEX. CIV. PRAC. & REM. CODE § 74.351(a)-(c). Chapter 74 further provides that a

failure to serve a report within 120 days mandates that the trial court dismiss the

case and award attorneys’ fees and costs. Id at § 74.351(b).

In order to comply with Chapter 74, an expert report must represent an

objective good faith effort to comply with the definition of an expert report under

Chapter 74. TEX. CIV. PRAC. REM. CODE § 74.351(l). The good faith effort standard

requires the report to provide an adequate analysis for each of the following

elements of a health care liability claim: (1) the applicable standard of care; (2) the

manner in which the care rendered by the physician or health care provider failed

to meet the standard; and (3) the causal relationship between that failure and the

injury, harm or damages claimed. Id. at § 74.351(r)(6); Palacios, 46 S.W.3d at 879.

The Texas Supreme Court holds that a report will not constitute a good faith effort

if it omits any of these statutory requirements. Jernigan v. Langley, 195 S.W.3d 91,

94 (Tex. 2006). Further, in order to constitute a good faith effort, the report must,

at a minimum: (1) inform the defendant of the specific conduct called into

9 question; and (2) provide a basis for the trial court to conclude the claims have

merit. Palacios, 46 S.W.3d at 879.

The Texas Supreme Court also holds that, while a report need not marshal

all of the plaintiff’s proof, it must include the expert’s opinion on each of the

elements identified in section 74.351. Palacios, 46 S.W.3d at 878. A report cannot

merely state the expert’s conclusions about the statutory elements. Id. at 879.

“Rather, the expert must explain the basis of his statements to link his conclusions

to the facts.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting

Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). It is not enough that the expert

report provides “insight” about the plaintiff’s claims. Id. “A report that merely

states the expert’s conclusions about the standard or care, breach, and causation

does not fulfill the two purposes of a good-faith effort.” Hebert v. Hopkins, 395

S.W.3d 884, 890 (Tex. App.—Austin 2013, no pet.) (quoting Jelinek, 328 S.W.3d

at 539).

Importantly, the only information relevant to determining whether a report

complies with the statute is “within the four corners of the document.” Palacios, 46

S.W.3d at 878. “This requirement precludes a court from filling gaps in a report by

drawing inferences or guessing as to what the expert likely meant or intended.”

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no

pet.) (citing Bowie Mem’l, 79 S.W.3d at 53; Gray v. CHCA Bayshore L.P., 189

10 S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). As this Court

recognized, “neither the trial court nor this Court may infer additional opinions or

underlying facts to fill in gaps that the report itself leaves open.” Hebert, 395

S.W.3d at 890.

C. Dr. Breall’s Report Does Not Constitute A Good Faith Effort to Comply With Section 74.351.

For ease of reference, Appellants provide below the paragraphs from Dr.

Breall’s report containing his opinions in this case. These paragraphs are the only

ones from Dr. Breall’s report addressing Appellants:

In my opinion the care and treatment provided to Nancy Jo Rodriguez by Austin Heart fell below the accepted standards of care in the following particulars:

Despite Dr. David Kessler, one of her cardiologists from Austin Heart, requesting that the Pradaxa be discontinued (in this patient who, at best, has bipolar disorder and at times was confused, this was a reasonable request), Pradaxa therapy nevertheless was continued after her acute hospitalization. This request to stop the medication was not appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same group as Dr. Kessler). Furthermore, Ms. Rodriguez appeared to be obtaining refills for this medication authorized by nurses and staff of this same heart group who recommended discontinuing this medication (Austin Heart). The standard of care would have been to follow the orders of Dr. Kessler to stop the administration of Pradaxa.

Failure to discontinue the use of Pradaxa was a direct cause of her subsequent acute admission to the hospital with hypotension, acute kidney injury and apparent gastrointestinal bleeding – known side effects of the over-use of Pradaxa. Ms. Rodriquez’s entire hospitalization was attributable to the failure to stop Pradaxa therapy as ordered by Dr. Kessler. More likely than not, had the Pradaxa

11 medication been discontinued as requested, Ms. Rodriguez’s hospitalization would never have needed to take place.

I hold these opinions to a reasonable degree of medical certainty. They are based upon my education, training and experience as well as the records which I have reviewed.

(CR 43–44). As explained herein, the report fails to satisfy any of the elements of a

Chapter 74 expert report as to Dr. Goswami or Austin Heart and does not

constitute an expert report under Chapter 74.

1. Dr. Breall’s report provides no facts to support his conclusions and thus does not constitute an expert report under Chapter 74.

Before addressing Dr. Breall’s specific failures to satisfy the statutory

elements of a Chapter 74 expert report, it is important to note that Dr. Breall’s

report provides absolutely no factual background regarding the care and treatment

in question. (CR 43–44). In fact, Dr. Breall’s report fails to even identify which

records he reviewed to support the opinions in his report. (Id.). It is well

established that an expert must link his conclusions to the facts in order satisfy

Chapter 74’s expert report requirement. Most recently, the Texas Supreme Court

held in Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010), when the report in question

lacked any explanation linking the expert’s conclusion to the relevant facts, the

trial court abused its discretion in denying the defendant’s motion to dismiss and

the court of appeals erred by affirming that ruling. Id. at 540 (citing Bowie Mem’l,

79 S.W.3d at 52).

12 Several Texas appellate courts have reached the same conclusion. The

appellate courts recognize that an expert’s failure to provide any facts to support

his or her conclusions on standard of care, breach, and causation prevents the trial

court from concluding the plaintiff’s claims have merit. See Taylor v. Fossett, 320

S.W.3d 570, 578 (Tex. App.—Dallas 2010, no pet.) (finding trial court abused its

discretion in denying physician’s motion to dismiss since expert report provided

only conclusory opinions without supporting facts); W.B.M. Mgmt. Co. v. Flores,

No. 07-14-00008-CV, 2014 WL 1691362, *5–6 (Tex. App.—Amarillo Apr. 25,

2014, no pet.) (holding that expert report was not a good faith effort to provide a

fair summary of his opinions and warranted dismissal since expert failed to provide

facts to support his conclusion); Shenoy v. Jean, No. 01-10-01116-CV, 2011 WL

6938538, *6 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (holding

that “an expert report that merely asserts that a defendant physician’s breach

caused the plaintiff’s injury without providing a factual basis does not provide the

trial court with the information necessary to evaluate the merits of the plaintiff’s

claim.”).

The failure to set forth facts supporting an expert’s opinions on the standard

of care, breach, and causation is not an argument based on “semantics.”

Kuykendall v. Dragun, No. 11-05-00230-CV, 2006 WL 728068, *3 (Tex. App.—

13 Eastland Mar. 23, 2006, pet. denied). Rather, the facts are “vital” in determining

whether the plaintiff’s claims have merit. Id.

For instance, in Kuykendall v. Dragun, the expert’s report stated that the

plaintiff suffered peripheral nerve damage in a surgery performed by several

physicians and indicated that the literature provided this type of injury was

typically caused by failure to properly pad self-retaining retractors, improperly

positioning the patient, or leaning on the patient. Id. The expert then opined that

these were the most likely causes of the plaintiff’s injuries. However, the report

failed to identify any facts supporting the conclusion. The report did not state the

defendant physician used a self-retaining retractor during the procedure, and the

report did not even identify the types of procedures carried out by the defendant

physician. The court of appeals held that the expert’s failure to link these facts to

his conclusions justified the trial court’s dismissal under Chapter 74. Id. In

reaching this conclusion, the trial court found the need for this specific information

in the report is not mere “semantics.” Id. Rather, this information is “vital” when

assessing whether the defendant breached the standard of care. Id.

Similarly, Dr. Breall leaves out key facts supporting his conclusions. In fact,

Dr. Breall leaves out any facts concerning Appellee’s care and treatment.

Appellee’s malpractice action is based on her continued use of Pradaxa after her

treating cardiologist, Dr. Kessler, ordered her to stop taking this medication (CR

14 6). Yet, Dr. Breall’s report provides absolutely no facts about Dr. Kessler’s order

to stop Pradaxa; the date of the order; to whom the order was communicated;

whether Dr. Goswami or Austin Heart treated, or even had contact with, Appellee

after Dr. Kessler’s order; the prescription used by Appellee after Dr. Kessler’s

order to stop; the circumstances in which Appellee continued to refill her

prescription and continued to use Pradaxa; and many other relevant facts. Rather,

Dr. Breall simply offers conclusory opinions about the standard of care, breach,

and causation.

It is evident Dr. Breall chose not to include relevant facts since they

obviously did not support the opinions in his report. After all, the medical records

reflect there was no interaction between Appellants and Appellee after Dr.

Kessler’s order to stop taking Pradaxa, and Appellee continued to use a

prescription with five remaining refills that pre-dated Dr. Kessler’s order to stop

taking Pradaxa. Dr. Breall’s report is silent on these facts (or any facts for that

matter) because they do not support his conclusions.3 Since Dr. Breall failed to

provide any facts to support his conclusions, his report did not constitute a good

faith effort to comply with section 74.351 of the Texas Civil Practices and

Remedies Code. Given the lack of facts to support Dr. Breall’s conclusion, the trial

3 Appellants include these facts not for purposes of determining the sufficiency of Dr. Breall’s report but to illustrate why an expert is required to provide factual support so the trial court may assess whether the plaintiff’s claims have merit.

15 court abused its discretion in finding the report was sufficient. See Smith, 368

S.W.3d at 577.4 As a result, Appellants request that the Court reverse the trial

court’s order.

2. Dr. Breall fails to identify the standard of care applicable to Appellants.

In addition to Dr. Breall’s general failure to provide any facts supporting his

conclusions, Dr. Breall also failed to make a good faith effort to comply with

section 74.351’s requirements. In his report, Dr. Breall fails to identify the standard

of care applicable to Appellants. The standard of care for a health care provider or

a physician is what an ordinarily prudent health care provider or physician would

do under the same or similar circumstances. See Strom v. Mem’l Hermann Hosp.

Sys., 110 S.W.3d 216, 222 (Tex. App—Houston [1st Dist.] 2003, pet. denied).

Identifying the standard of care is “critical” because “[w]hether a defendant

breached his or her duty to a patient cannot be determined absent specific

information about what the defendant should have done differently.” Palacios, 46

S.W.3d at 880. From Dr. Breall’s report, Appellants cannot determine what,

specifically, they should have done differently in their care and treatment of

Appellee.

4 Also, without the relevant facts, the trial court either misapplied the law regarding the sufficiency of expert reports or inferred additional underlying facts to fill in gaps that the report itself left open. This amounts to an abuse of discretion. See Garrett, 232 S.W.3d at 176; Hebert, 395 S.W.3d at 890.

16 As explained above, a good faith report must, at a very minimum: (1) inform

the defendant of the specific conduct called into question; and (2) provide a basis

for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879. A

report cannot merely state the expert’s conclusions about the statutory elements. Id.

at 879. “Rather, the expert must explain the basis of his statements to link his

conclusions to the facts.” Bowie Mem’l, 79 S.W.3d at 52. As this Court recognizes,

“[a] report that merely states the expert’s conclusions about the standard or care,

breach, and causation does not fulfill the two purposes of a good-faith effort.”

Hebert, 395 S.W.3d at 890.

In his report, Dr. Breall’s provides only a single, conclusory statement

setting forth his opinion on the standard of care: “The standard of care would have

been to follow the orders of Dr. Kessler to stop the administration of Pradaxa.”

(CR 44). However, Dr. Breall fails to identify the standard of care applicable to

Appellants given the factual circumstances of this case. As provided above, Dr.

Breall fails to set forth any facts indicating that Dr. Kessler’s order was

communicated to anyone except Appellee. (Recall, Appellee admits that Dr.

Kessler “orders that Nancy stop her use of the drug Pradaxa”). (CR 6). In fact, Dr.

Breall’s own report suggests Dr. Kessler did not communicate his order to Dr.

Goswami by stating Dr. Goswami failed to appreciate the order. (CR 44). Dr.

17 Breall’s report fails to explain the standard of care when an order to stop a

medication is not communicated to other physicians and health care providers.

Moreover, since Dr. Breall failed to describe the factual circumstances

surrounding the prescription and administration of Pradaxa, he could not have

identified the applicable standard of care in this case. After all, the standard of care

for a health care provider or physician is what an ordinarily prudent health care

provider or physician “would have done under the same or similar circumstances.”

See Strom, 110 S.W.3d at 222. Since Dr. Breall did not contemplate the

circumstances surrounding this case, he could not have identified the standard of

care applicable to Dr. Goswami or Austin Heart.

Also, Dr. Breall’s report fails to attribute his standard of care opinion to any

particular defendant. “When a plaintiff sues more than one defendant, the expert

report must set forth the standard of care applicable to each defendant and explain

the causal relationship between each defendant’s individual acts and the injury.”

Tenet Hosps. Ltd. v. De La Riva, 351 S.W.3d 398, 404 (Tex. App.—El Paso 2011,

no pet.); see also CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 227 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). An expert report may not assert that

multiple defendants are all negligent for failing to meet the standard of care

without providing an explanation of how each defendant breached the standard of

care and how that breach caused or contributed to the cause of injury. Taylor v.

18 Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus

Christi 2004, no pet.). “Collective assertions of negligence against various

defendants are inadequate.” Id.

In this case, Appellee filed suit against multiple defendants. Dr. Breall’s

report mentions three defendants, Dr. Kessler, Dr. Goswami, and Austin Heart.

However, Dr. Breall made no attempt to explain the standard of care applicable to

each defendant. Rather, Dr. Breall only provides one standard of care opinion and

fails to explain to whom it applies. Dr. Breall’s collective statement is prohibited

by Chapter 74 and Texas case law. See TEX. CIV. PRAC. & REM. CODE § 74.351(a);

Taylor, 169 S.W.3d at 244. Dr. Breall’s report effectively provides no standard of

care opinion with regard to Dr. Goswami or Austin Heart, and therefore, the trial

court abused its discretion in denying Appellants’ motion to dismiss.

3. Dr. Breall fails to explain how Dr. Goswami and Austin Heart breached the applicable standard of care.

Dr. Breall’s report also fails to explain how Dr. Goswami and Austin Heart

allegedly breached their respective standards of care. Dr. Breall’s only stated

criticism against Dr. Goswami was that the order to stop Pradaxa “was not

appreciated by her primary cardiologist, Dr. Vivek Goswami (who was in the same

group as Dr. Kessler).” (CR 44). However, Dr. Breall does not define this alleged

“failure to appreciate” as a breach of the applicable standard of care. In fact, Dr.

Breall does not identify the standard of care for appreciating another physician’s

19 order. Hence, Dr. Breall effectively provides no opinion that Dr. Breall breached

the standard of care.

Also, Dr. Breall does not explain how Dr. Goswami could have

“appreciated” Dr. Kessler’s order. Once again, Dr. Breall leaves out necessary and

vital facts to support this opinion. At no point does Dr. Breall’s report state that Dr.

Kessler communicated his March 27, 2012 order to Dr. Goswami. Rather,

Appellee admits this order to stop taking Pradaxa was communicated to her. (CR

6). Dr. Breall’s report again fails to link his conclusions to the facts in the case.

Moreover, Dr. Breall fails to explain what Dr. Goswami should have done

differently had he been apprised of the order by another treating cardiologist.

Specifically, Dr. Breall fails to explain what else Dr. Goswami should have done

other than what Appellee admits Dr. Kessler did, which is to tell Appellee to stop

taking the Pradaxa. Dr. Breall’s report certainly does not state that Dr. Goswami

continued to prescribe Pradaxa after Dr. Kessler’s order.

Again, Dr. Breall’s decision not to include supporting facts is not surprising

given that the facts reveal that Appellee continued to refill a Pradaxa prescription

that predated Dr. Kessler’s March 27, 2012 order without any notice to Dr.

Goswami. The report certainly does not explain how the facts establish Dr.

Goswami breached the standard of care. As explained in Section II(C)(1) above,

Dr. Breall’s failure to provide facts to support his opinion mandates dismissal.

20 Jelinek, 328 S.W.3d at 540; Taylor, 320 S.W.3d at 578; Flores, 2014 WL 1691362,

*5–6. Dr. Breall’s report fails to provide any statement that Dr. Goswami breached

the applicable standard of care.

In regard to Austin Heart, Dr. Breall states Appellee “appeared to be

obtaining refills for this medication authorized by nurses and staff of this same

heart group who recommended discontinuing this medication (Austin Heart).” (CR

44). However, this conclusory statement is a careful and calculated attempt to

mischaracterize the facts by excluding vital information. In this statement, Dr.

Breall noticeably fails to indicate the date in which Pradaxa refills were

“authorized by nurses and staff” of Austin Heart. If Austin Heart’s nurses and staff

authorized the refills before Dr. Kessler ordered Appellee to stop taking the

medication, there could not have been a breach. Dr. Breall noticeably omits the

date in which Austin Heart employees allegedly authorized refills of Pradaxa.5

Without this vital information, the trial court could not have determined

whether Appellee’s claims have merit. Rather, in order to conclude the report was

sufficient as to Austin Heart, the trial court needed to draw an inference that Austin

Heart employees authorized refills of Pradaxa after Dr. Kessler’s March 27, 2012

5 Per Appellee’s Original Petition, Dr. Kessler ordered Appellee to stop taking Pradaxa on March 27, 2012. (CR 6). The pharmacy records show that Appellee’s refill request was completed on March 16, 2012, eleven days before Dr. Kessler’s order. (CR 331). Appellee then used the prescription and refill requests, which predated Dr. Kessler’s order, to refill her Pradaxa on two separate occasions. (CR 332–33). Again, Appellants include this information not for purposes of determining the sufficiency of the report but to illustrate why the underlying facts are important when analyzing an expert’s opinions.

21 order. Yet, those facts are not provided in Dr. Breall’s report (most likely because

they are not the facts supported by the records or the witnesses in this case), and

the trial court abused its discretion in inferring these facts to find the report was

sufficient.

Also, Dr. Breall’s supposed breach opinion again does not match a

corresponding standard of care opinion. Nowhere in Dr. Breall’s report does he

provide the standard of care for nurses and staff members who receive a request to

authorize prescription refills. (CR 43–44). Therefore, Dr. Breall’s breach statement

is wholly insufficient to satisfy Chapter 74. In sum, Dr. Breall does not provide any

statement showing that Austin Heart’s nurses or staff breached the standard of

care, and the trial court abused its discretion in finding that Dr. Breall’s report was

sufficient as to Austin Heart.

4. Dr. Breall’s report fails to explain how an alleged breach in the standard of care by Dr. Goswami or Austin Heart caused Appellee’s injuries.

Dr. Breall’s report completely fails to explain how an alleged breach in the

standard of care by Dr. Goswami or Austin Heart caused Appellee’s injuries. As

the Supreme Court has recognized, “[a]n expert cannot simply opine that the

breach caused the injury. … Instead, the expert must go further and explain, to a

reasonable degree, how and why the breach caused the injury based on the facts

presented.” Jelinek, 328 S.W.3d at 539–40. Without this explanation, the trial court

22 cannot conclude the claims have merit. Id.; see also Smith, 368 S.W.3d at 578

(Austin Court reversing trial court’s denial of motion to dismiss after finding report

failed to provide facts explaining the causal link between alleged breach and the

occurrence or injury); Kocurek v. Colby, No. 03-13-00057-CV, 2014 WL 4179454,

*4–5 (Tex. App.—Austin Aug. 22, 2014, no pet.). Here, Dr. Breall’s report fails to

establish a causal link between an alleged breach in the standard of care by

Appellants and Appellee’s alleged injuries.

In regard to Dr. Goswami, Dr. Breall’s report only complains that Dr.

Kessler’s order to stop the medication was not “appreciated” by Dr. Goswami.

However, as explained above, Dr. Breall fails to explain how Dr. Goswami’s lack

of knowledge of Dr. Kessler’s order to stop taking Pradaxa caused Appellee to

continue to take Pradaxa. Dr. Breall’s report does not provide any facts indicating

that Dr. Goswami knew of Dr. Kessler’s order or that, after Dr. Kessler ordered

Appellee to stop taking Pradaxa, Dr. Goswami had any further contact with

Appellee before her alleged injuries. Moreover, one would expect Appellee to

follow the order of her treating cardiologist (Dr. Kessler) without needing a second

cardiologist (Dr. Goswami) to repeat the order. In short, Dr. Breall fails to explain

how any act or omission by Dr. Goswami led Appellee to continue to take Pradaxa.

In regard to Austin Heart, Dr. Breall’s only breach statement was that

Appellee “appeared to be obtaining refills for this medication authorized by nurses

23 and staff of this same heart group who recommended discontinuing this medication

(Austin Heart).” But again, Dr. Breall fails to allege that Austin Heart’s employees

authorized refills of Pradaxa after Dr. Kessler’s order to stop. To make a causal

connection, Dr. Breall would need to establish that Austin Heart employees

authorized Appellee to obtain refills of Pradaxa after Dr. Kessler’s order on March

27, 2012. Without this information, the trial court could not have concluded from

Dr. Breall’s report that an act or omission by Austin Heart employees caused

Appellee to continue to take Pradaxa after March 27, 2012.6

As this Court recently noted in Smith v. Wilson, an expert must explain, with

supporting facts, how each defendant’s alleged breach in the standard of care

caused the injury in question. 368 S.W.3d at 577–78. A conclusory statement on

causation is wholly insufficient. Id. Dr. Breall’s report offers no explanation or

facts explaining the causal link between alleged breaches in the standard of care by

Appellants and Appellee’s continued use of Pradaxa. Hence, Dr. Breall’s report

fails to satisfy the requirements of section 74.351.

Furthermore, Dr. Breall fails to explain how Appellee’s ingestion of Pradaxa

between March 27, 2012 and her hospitalization in July of 2012 caused the injuries

6 Further, Dr. Breall cannot satisfy the causation element by offering mere possibilities. See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex. App.—Austin 2012, no pet.), overruled on other grounds, Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013). “Reports providing a ‘description of only a possibility of causation do[ ] not constitute a good-faith effort to comply with the statute.’” Id. Dr. Breall states Appellee “appeared to be obtaining refills for [Pradaxa] authorized by” Austin Heart employees. (CR 44) (emphasis added). This language indicates Dr. Breall is simply guessing that Austin Heart employees authorized refills for Appellee.

24 alleged in his report -- hypertension, acute kidney injury, and apparent

gastrointestinal bleeding. Rather, Dr. Breall simply states, without any explanation,

“[f]ailure to discontinue the use of Pradaxa was a direct cause of her subsequent

admission to the hospital with hypotension, acute kidney injury and apparent

gastrointestinal bleeding.” (CR 44). Dr. Breall provides no explanation or factual

support for this conclusion as to how Appellee’s ingestion of Pradaxa over a two

month period caused these physical injuries. Conclusory statements on causation

will not satisfy Chapter 74’s expert report requirements. See Palacios, 46 S.W.3d

at 875; Regent Care Ctr. of San Antonio II, Ltd. P'ship v. Hargrave, 300 S.W.3d

343, 346 (Tex. App.—San Antonio 2009, pet. denied).

Since Dr. Breall only offered conclusions about the statutory elements of an

expert report, the trial court had “no discretion but to conclude ... that the report

does not represent a good-faith effort” to satisfy the statute. Smith, 368 S.W.3d at

577. Nonetheless, the trial court in this case found that Dr. Breall’s report was

“adequate under Chapter 74” and denied Appellants’ objections and motion to

dismiss. (CR 344, 365–66). The trial court’s ruling amounted to an abuse of

discretion. Smith, 368 S.W.3d at 577. Appellants request that this Court reverse

and the trial court’s ruling and remand with an order to grant Appellants’ motion to

dismiss.

25 D. By Serving A Report Like Dr. Breall’s, Appellee Effectively Negates The Purpose Of Chapter 74’s Expert Report Requirement.

As stated above, the purpose of section 74.351 is to prevent the filing of

frivolous lawsuits against physicians and health care providers in Texas. One of the

central purposes of the expert report is to provide a basis for the trial court to

conclude the claims have merit. Palacios, 46 S.W.3d at 879. Stated otherwise, the

report should let the trial court know the claims are not frivolous. When an expert

report conceals the relevant facts and provides only baseless conclusions on the

three elements of a health care liability claim, a plaintiff effectively negates the

purpose of the expert report requirement and circumvents section 74.351.

This is precisely what Appellee has done in this case. Dr. Breall’s report

conceals the relevant facts in hopes that his vague conclusions would hide the

frivolous nature of Appellee’s claims. If the trial court’s decision is upheld, the

purposes behind Chapter 74 will effectively be nullified and claimants would likely

use this Court’s decision to file frivolous claims against physicians and health care

providers by simply ignoring the facts. This is certainly not what the Legislature

intended when enacting Chapter 74 (formerly article 4590i).

CONCLUSION & PRAYER

In conclusion, Dr. Breall’s report suffers from a number of fatal flaws. Dr.

Breall provides absolutely no facts to support his conclusions on the applicable

26 standard of care, breach, and causation. Dr. Breall also fails to apprise Appellants

of the specific conduct called into question so as to notify the trial court of what

Appellants should have done differently in their care for Appellee. Moreover, Dr.

Breall’s report fails to identify the standard of care applicable to each Appellant,

fails to describe any act or omission by the Appellants that amounted to a breach in

that standard of care, and fails to show how any alleged breaches by Appellants

caused Appellee’s injuries. To the extent Dr. Breall does offer a limited opinion on

any of these elements, he only offers baseless conclusions that do not even connect

the applicable standard of care with an alleged breach of that standard of care

along with a causal link. Accordingly, the trial court abused its discretion when

holding that Dr. Breall’s report was “adequate” under Chapter 74 and denying

Appellants’ motion to dismiss.

WHEREFORE, PREMISES CONSIDERED, Appellants respectfully

request that this Court reverse the trial court’s order denying Appellants’ Chapter

74 Motion to Dismiss and remand to the trial court with an order that all claims

and causes of action asserted by Appellee against Appellants be dismissed with

prejudice and that Appellants be awarded their reasonably attorneys’ fees and costs

as allowed by Chapter 74 of the Texas Civil Practices and Remedies Code.

Appellants further pray for such other relief that they may be justly entitled.

27 Respectfully submitted,

SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC

By: /s/ Chris Knudsen Chris Knudsen Texas Bar No. 24041268 cknudsen@serpejones.com America Tower 2929 Allen Parkway, Suite 1600 Houston, Texas 77019 Telephone: (713) 452-4400 Facsimile: (713) 452-4499

Attorneys for Appellants Vivek Goswami, M.D. and Austin Heart, PLLC

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Brief for Appellants is computer generated, has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes, contains 6,322 words according to word count function of the computer program used to prepare this Brief, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1), and otherwise complies with Texas Rule of Appellate Procedure 9.4.

/s/ Chris Knudsen Chris Knudsen

28 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to all known counsel of record in accordance with the Texas Rules of Appellate Procedure on this the 5th day of January, 2015.

L. Todd Kelly THE CARLSON LAW FIRM, P.C. 11606 N IH-35 Austin, Texas 78753 Counsel for Plaintiff/Appellee

Cynthia Day Grimes STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215-1157 Counsel for Defendants Walgreen Co. and Sara Elizabeth McGuire

Missy Atwood GERMER BEAMAN & BROWN, PLLC 301 Congress Avenue, Suite 1700 Austin, Texas 78701 Counsel for Defendant St. David’s Health Care Partnership

29 APPENDIX A

TRIAL COURT ORDERS

30 Filed in The District Coun of Travis County, Texas

NOV 05 ZOl~ ~

OFFICE OF THE DISTRICT JUDGES Travis County Court House P.O. Box 1748 Austin, Texas 78767 (512) 854-9300

October 30, 2014

Mr. L. Todd Kelly Ms. Cynthia Day Grimes The Carlson Law Firm, P.C. Strasburger & Price, LLP n6o6 N. IH 35 2301 Broadway Austin, Texas 78753 San Antonio, Texas 78215-1157 Via Facsimile: (512) 719-4362 Via Facsimile: (210) 250-6003 Mr. Christopher Knudsen Ms. Missy Atwood Serpe, Jones, Andrews, Germer Beaman & Brown, PLLC Callender & Bell, PLLC 301 Congress Avenue, Suite 1700 American Tower Austin, Texas 78701 2929 Allen Parkway, Suite 1600 Via Facsimile: (512) 472-0721 Houston, Texas 77019 Via Facsimile: (713) 452-4499

Re: Cause No. D-1-GN-14-000903; Nancy Jo Rodriguez vs. The Walgreen Company, Sara Elizabeth McGuire, Austin Heart PLLC, St. David's Health Care Partnership, David Kessler, MD, and Vivek Goswami, MD; in the 419th Judicial District Court of Travis County, Texas

Dear Counsel:

Having reviewed the above said matter the Court will find that purported expert reports regarding alleged negligence against Walgreens and Sara Elizabeth McGuire are inadequate to satisfy the requirements of Chapter 74, Tex.Civ. Prac. & Rem Code and such claim should be dismissed.

The Court will find that expert report of Dr. Breall pertaining to Dr. Goswami and Austin Heart is adequate under Chapt. 74 and the plaintiffs claim will proceed. No sanctions on attorney's fee will be ordered.

344 Cause No. D-1-GN-14-000903 Filed in The District Court of Travis County, Texas October 30, 2014 Page 2 of2 NOV 0 5 2014 ctJ At \ I~ 5't aiM. Amalia Rodriguez-Mendoza, Clerk I ask that Mr. Kelly and Ms. Grimes prepare appropriate orders reflecting the Court's Rulings and forward the same to Lorraine Elzia, Office of the District Judges, Rm, 327, P.O. Box 1748, Austin, Texas 78767.

Thank you.

Sincerely Yours,

Gus J. Strauss Presiding Judge

cc: Travis County District Clerk

345 DC BK14342 PG666

~=~;~ in !he District Court . . . ravJs County, Texas

,:~~£~~~2014 1 CAUSE NO. D~l~GN-14~000903 ''maua Rodriguez-Mendoza, ~erk NANCY JO RODRIGUEZ § IN THE DISTRICT COURT OF § Plaintiff, § § vs. § TRAVIS COUNTY, TEXAS § THE WALGREEN COMPANY, § SARA ELIZABETH MCGUIRE, § AUSTIN HEART PLLC, ST. DAVID'S § HEALTHCARE PARTNERSHIP, § AND VIVEK GOSWAMI, M.D. § § Defendants. § 4191h JUDICIAL DISTRICT

ORDER DENYING DEFENDANTS VIVEK GOSWAMI, M.D. AND AUSTIN HEART, PLLC'S CH. 74 MOTION TO DISMISS AND MOTION FOR A WARD OF ATTORNEYS' FEES

Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss

Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion for Award

of Attorneys' Fees came to be heard and considered in the above-entitled and numbered cause on

October 29, 2014. The Court, after hearing argument of counsel and considering the written

motion, objections to the report of Dr. Jeffrey A. Breall, response and reply, is of the opinion that

the Defendants' motion should be DENIED and that the report of Dr. Jeffiey A. Breall

adequately complies with §74.351 of the Texas Civil Practice and Remedies Code. Accordingly,

it is hereby,

ORDERED, ADJUDGED AND DECREED as follows:

I. Defendants, Vivek Goswami, M.D. and Austin Heart, PLLC's Motion to Dismiss

Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code and Motion

for Award of Attorneys' Fees are DENIED;

365 DC BK14342 PG667

2. Dr. Jeffrey A. Breal1's expert report complies with §74.351 of the Texas Civil

Practice and Remedies Code; and

3. Plaintiffs Counter-Motion for Sanctions is DENIED.

SIGNED this f

AGREED-AS- -·

·' icole Andrews ChrisM. Knudsen Margaret Garib SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC 2929 Allen Pkwy, Suite 1600 Houston, TX 77019

366 APPENDIX B

CASES

31 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

medical-malpractice claims against American Transitional Care Centers, Inc., d/b/a American Transitional Hospital, 46 S.W.3d 873 Supreme Court of Texas. because it determined that the Palacioses’ expert report did not show a good-faith effort to provide a fair summary AMERICAN TRANSITIONAL CARE CENTERS of the expert’s opinions about the standard of care, OF TEXAS, INC. d/b/a American Transitional breach, and causation, as required by section 13.01. See Hospital, Petitioner, id. § 13.01(d), (e), (l), (r)(6). The court of appeals, after v. evaluating the trial court’s decision as it would a Teofilo PALACIOS and Maria Palacios, summary-judgment decision, reversed, holding that the individually and a/n/f of Gloria Janeth Palacios report did meet the statutory requirements. 4 S.W.3d 857, and Rocio Daniela Palacios, minors, Maria 860. Angelica Palacios, and Sentry Insurance, a mutual company, Respondents. We hold that a trial court’s decision to dismiss a case under section 13.01(e) is reviewed for abuse of discretion. No. 99–1311. | Argued Dec. 6, 2000. | Decided May We further hold that to constitute a good-faith effort to 10, 2001. | Rehearing Overruled June 28, 2001. provide a fair summary of an expert’s opinions under section 13.01(l ), an expert report must discuss the Medical malpractice action was brought against hospital standard of care, breach, and causation with sufficient to recover for injuries patient allegedly suffered in fall at specificity to inform the defendant of the conduct the hospital. The 280th District Court, Harris County, Tony plaintiff has called into question and to provide a basis for Lindsay, J., dismissed case for failure to file expert report, the trial court to conclude that the claims have merit. In as required by Medical Liability and Insurance this case, the trial court did not abuse its discretion in Improvement Act. Patient appealed. The Houston Court concluding that the challenged report does not meet the of Appeals, First District, reversed and remanded, 4 statutory requirements and in dismissing with prejudice S.W.3d 857. On petition for review, the Supreme Court, the claims against American Transitional. Accordingly, Hankinson, J., held that: (1) trial court’s determination we reverse the court of appeals’ judgment and dismiss about adequacy of expert report under Act is reviewed with prejudice the Palacioses’ claims. under abuse-of-discretion standard, and (2) expert’s report did not provide fair summary of standard of care and how Teofilo Palacios suffered brain damage and other severe it was breached. injuries following a two-story fall at work. After almost a year in an intensive rehabilitation program, he was Court of Appeals’ judgment reversed. transferred to American Transitional Hospital for further rehabilitation. Although Palacios at that time was able to *876 communicate with others and respond to simple Attorneys and Law Firms commands, he required assistance with most daily tasks. In addition, due to the severity of his brain damage, *875 Matthew T. McCracken, John C. Marshall, James C. Palacios’ physicians prescribed bed restraints for him. Marrow, Dee L. Dawson, Marshall & McCraken, Nevertheless, while a patient at American Transitional, Houston, for Petitioner. Palacios fell from his bed and required additional medical care for his injuries. His family claims that this fall caused D. John Leger, Leger & Coplen, Levon G. Hovnatanian, him to sustain further brain injury, which impaired his Martin Disiere & Jefferson, Houston, Mickey C. Shyrock, ability to communicate with others and to assist them in Law Office of Mickey C. Shyrock, Athens, for his care. Respondents.

Opinion Palacios and his family sued American Transitional and the treating doctors, respectively, for negligently failing to Justice HANKINSON delivered the opinion of the Court. prevent the fall and negligently treating him after the fall. After ninety days passed from the date the Palacioses filed suit, American Transitional, along with the other In this medical-malpractice case we determine the defendants, moved to require the Palacioses to file a standards for reviewing an expert report under section $7,500 cost bond, as required by section 13.01(b) of the 13.01 of the Medical Liability and Insurance Medical Liability and Insurance Improvement Act. See Improvement Act. TEX.REV.CIV. STAT. ANN.. art. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(b) 4590i, § 13.01. The trial court dismissed the Palacioses’ (authorizing a trial court to order a plaintiff to file a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

$7,500 cost bond for each defendant physician or health- opinions early in the litigation an obvious place to start in care provider if the plaintiff has not complied with the attempting to reduce frivolous lawsuits. See HOUSE expert-report or $5,000 cost-bond requirement in section COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 13.01(a)); id. § 13.01(a) (requiring the plaintiff to file 971, 74th Leg., R.S. (1995). either an expert report or a $5,000 cost bond for each defendant physician or health-care provider within ninety Accordingly, in section 13.01, the Legislature requires days of filing suit). The trial court granted the motion, and medical-malpractice plaintiffs, within 180 days of filing the Palacioses filed a cost bond for each defendant. suit, either to provide each defendant physician and health-care provider with an expert report and the expert’s After 180 days passed from the date the Palacioses filed curriculum vitae, or to nonsuit the claims. TEX.REV.CIV. suit, American Transitional moved to dismiss the case STAT. ANN.. art. 4590i, § 13.01(d). If the plaintiff fails against it because the Palacioses did not file an expert within the time allowed either to provide the expert report and curriculum vitae, or nonsuit the claims against reports and curriculum vitae, or to nonsuit the case, the American Transitional, as section 13.01(d) of the Act trial court must sanction the plaintiff by dismissing the requires. Id. § 13.01(d), (e). The Palacioses moved for an case with prejudice, awarding costs and attorney’s fees to extension of time to file the report, which the trial court the defendant, and ordering the forfeiture of any granted. See id. § 13.01(f), (g). The Palacioses then filed a applicable cost bond necessary to pay that award. Id. § report prepared by Dr. Catherine F. Bontke, who treated 13.01(e). If the plaintiff does timely file a report, the Palacios at the first rehabilitation hospital. American defendant may move to challenge the adequacy of the Transitional again moved to dismiss under section report, and the trial court must grant the motion if “it 13.01(e), claiming that the report did not satisfy the appears to the court ... that the report does not represent a statutory requirements. See id. § 13.01(l), (r)(6). The trial good faith effort to comply with the definition of an court granted the motion, dismissed with prejudice the expert report.” Id. § 13.01(l). The statute defines an expert claims against American Transitional, and severed those report as “a written report by an expert that provides a fair claims to make the judgment against American summary of the expert’s opinions ... regarding applicable Transitional final. See id. § 13.01(e). standards of care, the manner in which the care rendered ... failed to meet the standards, and the causal relationship The Palacioses appealed, and with one justice dissenting, between that failure and the injury, harm, or damages the court of appeals reversed and remanded after using claimed.” Id. § 13.01(r)(6). If a trial court determines that summary-judgment review standards to evaluate the an expert report does not meet these statutory sufficiency of the expert report. 4 S.W.3d at 860. After requirements and the time for filing a report has passed, it indulging every reasonable inference in the Palacioses’ must then dismiss with prejudice the claims against the favor and eliminating any deference to the trial court’s defendant who has challenged the report. Id. § 13.01(e). decision, the court of appeals concluded that the trial court erred in dismissing the case because the Palacioses American Transitional contends that a trial court’s made a good-faith effort to provide a report that met the determination about the adequacy of an expert report requirements of section 13.01(r)(6). Id. at 862–63. should be reviewed under an abuse-of-discretion standard. American Transitional petitioned for review challenging The Palacioses respond that whether a report meets the both the standard of review applied by the court of requirements of subsections 13.01(l) and (r)(6) is a appeals and the sufficiency of the Palacioses’ report. question of law. They suggest that a trial court’s decision on the adequacy of a report should be reviewed as a court [1] Texas courts have long recognized the necessity of would review a summary-judgment decision: that is, by expert testimony in medical-malpractice cases. E.g., Hart indulging every reasonable inference and resolving any v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. doubts in the nonmovant’s favor, and eliminating any Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). deference to the trial court’s decision. We agree with “There can be no other guide [than expert testimony], and American Transitional. where want of skill and attention is not thus shown by [2] [3] expert evidence applied to the facts, there is no evidence The plain language of section 13.01 leads to the of it proper to be submitted to the jury.” Hart, 399 S.W.2d conclusion that abuse of discretion is the proper standard. at 792. Because expert testimony is crucial to a medical- First, the statute directs the trial court to grant a motion malpractice case, *877 knowing what specific conduct the challenging the adequacy of an expert report if it “appears plaintiff’s experts have called into question is critical to to the court” that the plaintiffs did not make a good-faith both the defendant’s ability to prepare for trial and the effort to meet the statutory requirements. Id. § 13.01(l). trial court’s ability to evaluate the viability of the This language plainly vests the trial court with discretion. plaintiff’s claims. This makes eliciting an expert’s See TEX. GOV’T CODE § 312.002. (“[W]ords shall be

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given their ordinary meaning.”). Second, the statute states then look outside the report at the plaintiff’s conduct to that dismissal under section 13.01(e) is a sanction: If the determine whether the plaintiff made a good-faith effort requirements of section 13.01(d) are not met, the court to meet the statutory requirements, id. § 13.01(l ). The must “enter an order as sanctions” dismissing the case and Palacioses, on the other hand, argue that the statute granting the defendant its costs and attorneys’ fees. requires only one inquiry—whether the report evidences a TEX.REV.CIV. STAT. ANN .. art. 4590i, § 13.01(e). good-faith effort to provide a fair summary of the expert’s Sanctions are generally reviewed under an abuse-of- opinions. According to the Palacioses, the trial court does discretion standard. Koslow’s v. Mackie, 796 S.W.2d 700, not have to make any factual determinations because the 704 (Tex.1990). And we presume the Legislature was only relevant information is in the report itself. We agree aware of the standard of review ordinarily applied in with the Palacioses that a trial court should look no sanctions cases when it explicitly identified a court’s further than the report in conducting a section 13.01(l ) dismissal under section 13.01(e) as a sanction. *878 See inquiry. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1943) ( “All statutes are presumed to be enacted by the The issue for the trial court is whether “the report” legislature with full knowledge of the existing condition represents a good-faith effort to comply with the statutory of the law and with reference to it.”). definition of an expert report. Id. § 13.01(l ). That definition requires, as to each defendant, a fair summary Nevertheless, the court of appeals concluded that the of the expert’s opinions about the applicable standard of usual standard of review for sanctions should not apply care, the manner in which the care failed to meet that here. The court reasoned that the provisions of article standard, and the causal relationship between that failure 4590i at issue here were intended to discourage frivolous and the claimed injury. Id. § 13.01(r)(6). Because the lawsuits, while sanctions, in contrast, are a response to statute focuses on what the report discusses, the only litigation misconduct. We disagree with this distinction. information relevant to the inquiry is within the four corners of the document. Filing a frivolous lawsuit can be litigation misconduct [5] [6] subject to sanction. See TEX.R. CIV. P. 13 (imposing Under subsections 13.01(l ) and (r)(6), the expert sanctions for filing groundless motions, pleadings, or report must represent only a good-faith effort to provide a other papers in bad faith or for the purposes of fair summary of the expert’s opinions. A report need not harassment). And one purpose of the expert-report marshal all the plaintiff’s proof, but it must include the requirement is to deter frivolous claims. HOUSE COMM. expert’s opinion on each of the elements identified in the ON CIV. PRAC., BILL ANALYSIS, Tex. H.B. 971, 74th statute. See *879 Hart v. Wright, 16 S.W.3d 872, 877 Leg., R.S. (1995). The Legislature has determined that (Tex.App.—Fort Worth 2000, pet. denied). In setting out failing to timely file an expert report, or filing a report the expert’s opinions on each of those elements, the report that does not evidence a good-faith effort to comply with must provide enough information to fulfill two purposes if the definition of an expert report, means that the claim is it is to constitute a good-faith effort. First, the report must either frivolous, or at best has been brought prematurely. inform the defendant of the specific conduct the plaintiff See id. This is exactly the type of conduct for which has called into question. Second, and equally important, sanctions are appropriate. See TransAmerican Natural the report must provide a basis for the trial court to Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) conclude that the claims have merit. See 4 S.W.3d at 865 (holding that “death-penalty” sanctions are appropriate (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d 829, 830 when a party’s discovery abuse justifies a presumption (Tex.App.—San Antonio 1999, pet. denied) (noting that that its claims lack merit). For these reasons, we hold that one of the purposes of article 4590i is to deter frivolous an abuse-of-discretion standard of review applies to a trial claims). court’s decision to dismiss a case under section 13.01(e). [7] [8] [9] [10] A report that merely states the expert’s [4] We next consider whether the trial court abused its conclusions about the standard of care, breach, and discretion in dismissing the Palacioses’ claims against causation does not fulfill these two purposes. Nor can a American Transitional. The parties disagree about how to report meet these purposes and thus constitute a good- determine a report’s adequacy under section 13.01(l ). faith effort if it omits any of the statutory requirements. American Transitional argues that the trial court must See, e.g., Hart, 16 S.W.3d at 877 (holding that a report engage in a two-step process: (1) the trial court must was inadequate because it stated that the patient had a determine whether the report constitutes a fair summary heart attack and the doctor breached the standard of care, of the expert’s opinions, TEX.REV.CIV. STAT. ANN.. without describing the standard of care); Wood, 988 art. 4590i, § 13.01(r)(6); and (2) if the trial court S.W.2d at 831–32 (holding that an expert report did not concludes that the report is not a fair summary, it must meet the statutory requirements because it did not name

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the defendants, state how the defendants breached the minutes,” that Dr. Bontke believes American standard of care, demonstrate causation and damages, or Transitional’s staff should have tied the restraints to the include a curriculum vitae). However, to avoid dismissal, bed more securely. a plaintiff need not present evidence in the report as if it [12] were actually litigating the merits. The report can be The standard of care for a hospital is what an informal in that the information in the report does not ordinarily prudent hospital would do under the same or have to meet the same requirements as the evidence similar circumstances. See Birchfield v. Texarkana Mem’l offered in a summary-judgment proceeding or at trial. Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the See, e.g., TEX.R. CIV. P. 166(f) (setting out the standard of care is critical: Whether a defendant breached requirements for the form and content of affidavits his or her duty to a patient cannot be determined absent offered as summary-judgment proof); TEX.R. EVID. 802 specific information about what the defendant should (stating that most hearsay is inadmissible). have done differently. “While a ‘fair summary’ is something less than a full statement of the applicable [11] American Transitional contends that Dr. Bontke’s standard of care and how it was breached, even a fair report does not meet the statutory requirements because it summary must set out what care was expected, but not does not represent a good-faith effort to provide a fair given.” 4 S.W.3d at 865 (Taft, J. dissenting). The summary of her opinion on the standard of care and how statement the Palacioses rely upon—that precautions to American Transitional breached that standard. The prevent Palacios’ fall were not properly used—is not a Palacioses respond that the following parts of Dr. statement of a standard of care. Neither the trial court nor Bontke’s report establish these elements: American Transitional would be able to determine from this conclusory statement if Dr. Bontke believes that the Based on the available documentation I was able to standard of care required American Transitional to have conclude that: Mr. Palacios fell from his bed on 5/14/94 monitored Palacios more closely, restrained him more while trying to get out of it on his own. The nursing securely, or done something else entirely. “It is not notes document that he was observed by nursing on the sufficient for an expert to simply state that he or she hour for two hours prior to the fall. In addition, ten knows the standard of care and concludes it was [or was minutes before the fall, the nursing notes documents not] met.” See Chopra v. Hawryluk, 892 S.W.2d 229, 233 [sic] the his wrist/vest restraints were on. Yet, at the (Tex.App.—El Paso 1995, writ denied). Knowing only time of his fall he was found on the floor with his that the expert believes that American Transitional did not vest/wrist restraints on but not tied to the bed. It is take precautions to prevent the fall might be useful if unclear how he could untie all four of the restraints American Transitional had an absolute duty to prevent from the bedframe in under ten minutes. Obviously, falls from its hospital beds. But as a general rule, res ipsa Mr. Palacios had a habit of trying to undo his restraints loquitur does not apply in medical-malpractice cases. and precautions to prevent his fall were not properly TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting utilized. res ipsa loquitur in medical malpractice to the limited classes of cases to which it applied as of August 29, .... 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990). All in all, Mr. Palacios sustained a second brain injury with a left subdural hematoma while he was an When the expert report’s conclusory statements do not put inpatient at [the Hospital].... [I]n my opinion, the the defendant or the trial court on notice of the conduct medical care rendered to Mr. Palacios at the time of his complained of, section 13.01(l ) affords the trial court no second brain injury was below the accepted and discretion but to conclude, as the trial court did here, that expected standard of care which he could expect to the report does not represent a good-faith effort to provide receive. Moreover, this [sic] below the accepted a fair summary of the standard of care and how it was standard of care extends to both the cause of the second breached, as section 13.01(r)(6) requires. And because the injury as well as the subsequent treatment.... statutory 180 day time period had passed when the trial court here made that determination, section 13.01(e) The Palacioses rely mostly on one sentence in the report required the court to dismiss with prejudice the to establish the standard of care: “Mr. Palacios had a habit Palacioses’ claims against American Transitional. See of *880 trying to undo his restraints and precautions to TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e). prevent his fall were not properly utilized.” They argue Accordingly, we reverse the court of appeals’ judgment that the inference can be made from that sentence, along and dismiss with prejudice the Palacioses’ claims. with the statement that “[i]t is unclear how he could untie all four of the restraints from the bed frame in under ten

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Parallel Citations 44 Tex. Sup. Ct. J. 720

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

Before Justices PATTERSON, PEMBERTON and 228 S.W.3d 276 WALDROP. Court of Appeals of Texas, Austin.

AUSTIN HEART, P.A. and David J. Kessler, M.D., Appellants, v. OPINION Christian L. WEBB and Marilou Webb, Appellees. G. ALAN WALDROP, Justice. No. 03–06–00607–CV. | May 9, 2007. Austin Heart, P.A. and David J. Kessler, M.D. appeal the district court’s order denying their motion to dismiss Synopsis Christian and Marilou Webb’s medical malpractice Background: Patient brought medical malpractice action claims. Austin Heart and Dr. Kessler contend that the against physician and physician’s professional association expert report served on them pursuant to civil practice and alleging that physician failed to diagnose and treat the remedies code section 74.351 did not comply with the medical condition which caused patient’s severe heart statute because it did not sufficiently identify either palpitations and other health conditions. Physician and Austin Heart or Dr. Kessler as the parties responsible for professional association moved to dismiss on the basis the alleged breach of the standard of care or the cause of that patient’s expert report did not identify them as the the alleged injury to Mr. Webb. See Tex. Civ. Prac. & parties responsible for breaching the standard of care or Rem.Code Ann. § 74.351 (West 2005 & Supp.2006). We causing injury to patient. The District Court, 98th Judicial agree that the plaintiffs’ expert report was deficient and District, Travis County, Paul Davis, P.J., initially granted that the district court erred in denying the motion to the motion to dismiss, but, on patient’s motion for a dismiss. However, we are of the view that the cure rehearing, reversed its ruling to deny the motion to provisions of section 74.351(c) are designed to allow the dismiss. Physician and professional association appealed. plaintiffs an opportunity to address and correct the defect. Consequently, we reverse the district court’s order denying the motion to dismiss and remand this cause to Holdings: The Court of Appeals, G. Alan Waldrop, J., the district court to consider whether a 30–day extension held that: of the deadline for serving the report to allow the plaintiffs to address the deficiency is appropriate. [1] patient’s expert report was deficient as it did not specifically state that the defendant physician was the The Webbs sued Austin Heart and Dr. Kessler in January physician that breached the relevant standard of care and of 2006 alleging that Dr. Kessler failed to “diagnose and caused alleged injury to patient, but treat the medical condition which caused [Mr. Webb’s] severe palpitations and resulting associated health [2] patient was entitled to a 30-day extension to cure such conditions.” The palpitations and other symptoms deficiencies. described by the Webbs were related to Mr. Webb’s pacemaker. On May 31, 2006, the Webbs filed and served the expert report and curriculum vitae of Dr. Alan E. Reversed and remanded. Cororve pursuant to the requirements of section 74.351 of the civil practice and remedies code setting forth Dr. Jan J. Patterson, J., filed a dissenting opinion. Cororve’s opinions regarding Mr. Webb’s treatment for his problems with his pacemaker. Austin Heart and Dr. Kessler filed a motion to dismiss on June 21, 2006, Attorneys and Law Firms claiming that Dr. Cororve’s report did not identify either Dr. Kessler or Austin Heart as the parties responsible for *278 Robert L. Hargett, Emily J. Davenport, Davis & breaching the standard of care or causing Mr. Webb Wilkerson, P.C., Austin, for appellant. injury and, therefore, the report was not a timely report as to them. In response, the Webbs claimed that the report James L. Wright, Watts Law Firm, L.L.P., Austin, for was sufficient as written and, in the alternative, filed a appellee. motion for a 30–day *279 extension to cure in the event the court found the report deficient. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

required information within its four corners.”); see also The district court initially granted the motion to dismiss Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 on August 22, 2006, and did not grant a 30–day extension (Tex.App.-Houston [1st Dist.] 2006, no pet.). to allow the plaintiffs to attempt to cure the deficiency. [4] The Webbs filed a motion for rehearing and a motion for We review a district court’s ruling on a motion to new trial on September 15, 2006, arguing that the court dismiss under section 74.351 for an abuse of discretion. had misinterpreted case law relating to what constitutes a Palacios, 46 S.W.3d at 877–78. A trial court abuses its sufficient report under section 74.351 and that Dr. discretion when it acts in an arbitrary or unreasonable Cororve’s report was sufficient. They also re-urged their manner or without reference to any guiding rules or request for a 30–day extension to cure in the event the principles. Downer v. Aquamarine Operators, Inc., 701 court denied their motion for rehearing. The district court S.W.2d 238, 241–42 (Tex.1985). A trial court does not then reversed its original ruling, granted the motion for abuse its discretion simply because it may decide a matter rehearing, and entered an order denying the motion to within its discretion differently than an appellate court. Id. dismiss. This appeal followed. at 242. However, a trial court has no discretion in determining *280 what the law is or applying the law to [1] Section 74.351 requires a claimant pursuing a health the facts. Walker v. Packer, 827 S.W.2d 833, 840 care liability claim to serve one or more expert reports on (Tex.1992). A clear failure by the trial court to analyze or each party no later than the 120th day after the filing of apply the law correctly will constitute an abuse of the original petition. Id. § 74.351(a). The expert report discretion. Id. must provide “a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of In a single issue, Austin Heart and Dr. Kessler argue that care, the manner in which the care rendered by the section 74.351(b) mandates dismissal of the Webbs’ physician or health care provider failed to meet the lawsuit. Their argument is straightforward: Read literally, standards, and the causal relationship between that failure without any inferences or reliance on information outside and the injury, harm, or damages claimed.” Id. § of its four corners, Dr. Cororve’s report does not identify 74.351(r)(6). A court shall grant a motion challenging the either Dr. Kessler or Austin Heart as having breached the adequacy of a report only if the report “does not represent standard of care or having caused Mr. Webb injury. The an objective good faith effort to comply” with the Webbs respond that, while the sections of Dr. Cororve’s definition of “expert report” in the statute. Id. § 74.351(l ). report relating to the breach of the standard of care and To constitute a good faith effort, the report must provide causation do not identify any specific physicians, the enough information to fulfill two purposes: (1) it must meaning of the report read as a whole is apparent and inform the defendant of the specific conduct the plaintiff reveals that Dr. Cororve is referring to Mr. Webb’s has called into question, and (2) it must provide a basis treatment by Dr. Kessler. for the trial court to conclude that the claims have merit. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 Dr. Cororve’s two and one-half page report is divided into (Tex.2002) (citing American Transitional Care Ctrs., Inc. five sections—“Qualifications,” “Materials Reviewed and v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). Background,” “Standard of Care,” “Standard of care not met,” and “Causation.” In the section titled Materials [2] [3] The Texas Supreme Court has also stated that a Reviewed and Background, Dr. Cororve lists the various report need not marshal all of the plaintiff’s proof, but it medical records he reviewed. 1 He then sets out selected must include the expert’s opinion on each of the elements portions of these records detailing the relevant aspects of identified in section 74.351. Palacios, 46 S.W.3d at 878. Mr. Webb’s history of treatment for a trial fibrillation and A report cannot merely state the expert’s conclusions palpitations over a period of nearly four years beginning about the statutory elements. Id. at 879. “Rather, the with the placement of his pacemaker in November 2001. expert must explain the basis of his statements to link his This review of Mr. Webb’s treatment history includes a conclusions to the facts.” Bowie Memorial, 79 S.W.3d at number of references to Dr. Kessler’s office notes, 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 comments by Dr. Kessler in those notes, complaints by (Tex.1999)). In addition, since the statute focuses on what Mr. Webb contained in the notes, a reference to the office is required in the report, the only information relevant to notes of a Dr. George Rodgers, an email from Mr. Webb determining whether a report complies with the statute is to Dr. Kessler, a response email from Dr. Rodgers, 2 and a “within the four corners of the document.” Palacios, 46 general statement that “[Mr. Webb] was seen by various S.W.3d at 878. This requirement precludes a court from physicians, including several electrophysiological filling gaps in a report by drawing inferences or guessing consultations.” The background section concludes with as to what the expert likely meant or intended. See Bowie the observation that “[f]urther evaluation eventually Memorial, 79 S.W.3d at 53 (“The report must include the documented diaphragmatic stimulation and a new right

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ventricular lead was placed on September 7, 2005. The Cororve is identifying Dr. Kessler as the physician who patient was subsequently discharged in excellent breached the standard of care and caused injury. Had Dr. condition.”3 The background section of the report offers Cororve referenced only actions by Dr. Kessler in the no opinions regarding the appropriateness of the treatment background section of his report, the link between Dr. or the responses of the physicians to Mr. Webb’s Cororve’s opinions and the responsible physician might complaints. It is strictly a recitation of historical material be more apparent. However, Dr. Cororve also refers to contained in the medical records reviewed by Dr. actions taken by Dr. Rodgers and makes a vague Cororve. reference to Mr. Webb having been “seen by various physicians, including several electrophysiological The report then concludes with the following three consultations” after he was treated by Dr. Kessler but sections: before his condition improved.6 There is nothing in the report that links Dr. Kessler to Dr. Cororve’s opinions regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other “various Standard of Care physicians” referenced.

The standard of care in a patient such as this requires The Webbs point out that (1) Dr. Kessler is the only more intensive investigation as to the source of a defendant physician and (2) the essence of Dr. Cororve’s patient’s symptoms and subsequent corrective actions opinions is that the breach of the standard of care was the to ameliorate the problem. Attempts at adjusting the failure of the treating physicians, implicitly including Dr. ventricular pacing outputs should routinely be Kessler, to properly adjust the ventricular pacing outputs. attempted and would most likely have pinpointed the *282 However, that Dr. Kessler is the only defendant problem much earlier. This standard of care was not physician is not relevant to an analysis of whether an met. expert report complies with section 74.351. The fact that he is the only defendant physician and, therefore, very likely to be the subject of the report is outside the four Standard of care not met corners of the report. See Palacios, 46 S.W.3d at 878. It also does nothing to clarify to whom the opinions of the The diagnostic and corrective action eventually taken, expert supplying the report apply. The expert’s opinions specifically the increase *281 in the ventricular pacing are, of course, confined to the report and must tell the output, should have been implemented much sooner. reader not only what conduct breached the standard of care, but whose conduct breached the standard of care. Causation The plaintiffs’ allegation that a particular physician was at fault does not substitute for the requirement that they Had the corrective action described occurred, Mr. supply an expert report demonstrating that the expert is of Webb would not have undergone the physical and the same opinion. mental problem(s) he had and could have continued his normal lifestyle much earlier than he did. We also do not agree that the substance of Dr. Cororve’s [5] Dr. Kessler and Austin Heart point to these sections opinions could only be associated with the conduct of Dr. and argue that, while they may articulate an opinion on Kessler. The essence of Dr. Cororve’s opinion is that the the breach of the standard of care and on causation, the physicians who treated Mr. Webb should have adjusted sections do not identify Dr. Kessler as breaching the his ventricular pacing outputs sooner and the failure to do standard of care or causing injury.4 The Webbs concede so was a breach of the standard of care. This opinion that these sections do not expressly mention Dr. Kessler. could apply or not apply equally to Dr. Kessler, Dr. They argue, however, that the background section of the Rodgers, or the various unnamed physicians. The report report makes it clear Dr. Cororve’s opinions relate to Dr. must state, in some manner, who breached the standard of Kessler because it is primarily Dr. Kessler’s actions that care and who caused the alleged injury, and whether that are noted in the relevant history.5 Thus, they argue the includes Dr. Kessler. In the words of the supreme court in report should be read to mean that the opinions in the Palacios, “the report must inform the defendant of the standard of care and causation sections refer to the actions specific conduct the plaintiff has called into question.” and conduct of Dr. Kessler set out in the background Palacios, 46 S.W.3d at 879. This includes informing the section of the report. defendant of the specific conduct in question of that defendant. See Palacios, 46 S.W.3d at 878 (The statute The problem with this argument is that it requires the requires, as to each defendant, a fair summary of the reader to infer or make an educated guess that Dr. expert’s opinions about the applicable standard of care,

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the manner in which the care failed to meet that standard, Kessler, the court has no discretion but to dismiss the and the causal relationship between the failure and the plaintiffs’ claims with prejudice. See Jernigan v. Langley, claimed injury). 195 S.W.3d 91, 94 (Tex.2006); Marichalar, 185 S.W.3d at 73–74. This overstates the holding in Garcia. The We are mindful that a report’s adequacy under section physician in Garcia was not mentioned in the report at all. 74.351 does not depend on whether the expert uses any There was literally nothing in the report that related to the particular magic words such as “the standard of care was physician in any way. Thus, the report was no report as to breached by Dr. Kessler.” See Bowie Memorial, 79 him. The Garcia court then held that this was a situation S.W.3d at 53. However, the report must communicate in where no expert report was timely filed with respect to the some fashion—within its four corners—how the care physician in question, precluding the trial court from rendered by the physician failed to meet the applicable considering an extension to cure because there was no standard of care and the causal relationship between that timely report to cure. 185 S.W.3d at 74 (trial court had no failure and the injury suffered by the claimant. Tex. Civ. authority to allow a cure period for a nonexistent report). Prac. & Rem.Code Ann. § 74.351(r)(6). We recognize that this information could be communicated in a number A closer case is Jernigan v. Langley, 195 S.W.3d 91 of ways and it could be communicated in sections of a (Tex.2006). In Jernigan, the supreme court noted that a report other than sections titled “Standard of Care” or mere “passing reference” to a physician in a report, “Causation.” The form of the report and the location of without explanation of how the physician breached the the information in the report are not dispositive. However, standard of care or caused the injury, would not constitute in this case, Dr. Cororve’s report is silent as to whether a a sufficient report. 195 S.W.3d at 94. The only reference single physician, multiple physicians, or all physicians to Dr. Jernigan in the report was “[a]t 4:30 p.m. [John mentioned in the report failed to meet the standard of care Langley’s] case was discussed with Dr. Jernigan and at and caused injury to Mr. Webb. It simply does not state 4:50 p.m. a lactulose enema was ordered.” The expert’s that the care rendered by Dr. Kessler failed to meet opinion on breach of the standard of care had to do with applicable standards and caused injury. the failure to examine certain x-rays. The report did not link Dr. Jernigan or the referenced discussion with Dr. [6] While we are of the view that Dr. Cororve’s report is Jernigan to a breach of the standard of care or to the deficient under section 74.351 because it requires the failure to examine x-rays in any way. It made no other reader to make an educated guess regarding an essential mention of him or what he did at all. The supreme court element, we are also aware that the defect might well be noted that the single reference to Dr. Jernigan in the curable. The tenor of Dr. Cororve’s report, coupled with report was so oblique that there was no connection at all the fact that there is only one physician defendant, makes between the reference to him and the expert’s opinions it quite likely that Dr. Cororve intended to opine that Dr. regarding the standard of care and causation. It affirmed Kessler breached the standard of care and caused injury the trial court’s dismissal of the lawsuit based on the even though the report did not contain that opinion. The insufficiency of the report, stating that “the trial court had report’s failure on this point is the kind of defect that the no discretion but to conclude, as it did here, that cure provisions of section 74.351(c) were designed *283 Langley’s claims against Dr. Jernigan must be to address. Since the district court ultimately found the dismissed.” Id. report to be sufficient, the court did not consider whether a 30–day extension of the report deadline to allow the The report in Jernigan, as in Garcia, amounted to no Webbs to attempt to cure a defect would be appropriate. report at all as to Dr. Jernigan and warranted dismissal for In light of our ruling that the report does contain a defect, failure to serve a timely report. There was no discretion we believe consideration by the trial court of the Webbs’ for the court to grant an extension to cure because there request for an extension to attempt to cure the defect is was no timely report—with respect to Dr. Jernigan—to warranted. cure.7 Any attempt by the plaintiffs *284 to “cure” the reports in Jernigan and Garcia would, in effect, have Austin Heart and Dr. Kessler argue that Garcia v. been to create and serve new reports—that did not exist at Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, all within the time period for serving reports—with no pet.), supports the proposition that an expert report that respect to the physicians in question in each case. This is references multiple health care providers but fails to conceptually no different from the situation where a delineate the standard of care, breach and causal plaintiff simply missed the deadline for serving a report. connection as to specific, individual defendants is tantamount to no report at all with respect to those Jernigan and Garcia differ from this case in crucial defendants. They then posit that since Dr. Cororve’s respects. Here, a timely report plainly discusses the report should be considered no report at all as to Dr. conduct of the physician in question and the report

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discusses opinions on the standard of care and causation JAN P. PATTERSON, Justice, dissenting. that could be linked to the conduct of the physician set out in the report, but simply are not. The report is not While the expert report requirement in medical deficient because it does not relate to Dr. Kessler at all. It malpractice cases is designed to weed out frivolous is deficient because the link between Dr. Kessler’s claims, it is not meant to be an insurmountable hurdle. conduct and the expert’s conclusions is not expressly The majority *286 raises the bar, however, by requiring a stated. The report in this case is, therefore, some report as fastidious reading of the report. The expert report to Dr. Kessler (among others), but it is not sufficient to proffered by the Webbs may not be a perfect report, but it meet all of the requirements of section 74.531. It is an is clear when viewed as a whole whose conduct is at example of what section 74.351(c) refers to as a report issue—Dr. Kessler’s. I therefore cannot agree that the trial that “has not been served within the [120–day period for court abused its discretion in finding the report adequate. I serving reports] because elements of the report are found would affirm the order of the trial court. deficient.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). In such a circumstance, section 74.351(c) grants the trial Even assuming the report is merely “some report as to Dr. court discretion to allow a 30–day extension of the Kessler (among others),” the remand fashioned by the deadline “in order to cure the deficiency.” Id. Jernigan majority is not appropriate in this case and alters the and Garcia cannot be read to mean that any deficiency in statutory scheme crafted by the legislature. Austin Heart a report requires dismissal without the possibility of an and Dr. Kessler moved to dismiss the Webbs’ lawsuit extension to cure because that would mean section solely on the ground that the expert report was “no report” 74.351(c) has no possible application and is superfluous. and, thus, the trial court had no discretion to consider an Section 74.351(c) contemplates that there are extension to cure deficiencies. Having found that the circumstances where a timely report will be deficient, but report is indeed some report for which the trial court the deficiency can be cured. To be consistent with the could have granted an extension, the majority has rejected statute, Jernigan and Garcia must be read to allow for at Austin Heart’s and Dr. Kessler’s sole ground for least some situations where a timely report is deficient, dismissal. The appropriate remedy would be a remand to but the trial court should consider whether the deficiency the trial court for the cause to proceed without the need is such that it warrants allowing a cure period.8 Id. for an extension. For these reasons, I respectfully dissent.

*285 We are of the opinion that the report in this case falls into that category. It was served timely, it makes more than a passing reference to Dr. Kessler, and it notes conduct by Dr. Kessler that could be linked to the expert’s FACTUAL AND PROCEDURAL BACKGROUND conclusions regarding the breach of the standard of care and causation. It is deficient only because it does not On January 31, 2006, the Webbs filed suit against Austin expressly make the link between the expert’s conclusions Heart and Dr. Kessler, alleging that Dr. Kessler, and the referenced conduct by Dr. Kessler. If the expert is individually, and Austin Heart, through the actions of Dr. of the opinion that Dr. Kessler’s conduct breached the Kessler, negligently failed to diagnose and treat Christian standard of care and caused injury, he will not have to Webb for a medical condition related to his pacemaker generate a new, previously nonexistent report. He will that caused him to experience “severe palpitations” and simply have to add the link between his already stated other associated health conditions. On May 31, 2006, the conclusions and the already referenced conduct of Dr. Webbs filed the expert report and curriculum vitae of Dr. Kessler. Therefore, the circumstances here are not similar Alan Cororve pursuant to section 74.351 of the civil to the situation where a plaintiff simply has missed the practice and remedies code. See Tex. Civ. Prac. & deadline for serving a report with respect to the conduct Rem.Code Ann. § 74.351(a) (West Supp.2006). Austin of a physician. Heart and Dr. Kessler filed a motion to dismiss under section 74.351(b), asserting that the Webbs had failed to We reverse the district court’s order denying the motion file an expert report specifically addressing the standard to dismiss filed by Austin Heart, P.A. and Dr. Kessler and of care, breach of the standard of care, or causation as to remand this cause for further proceedings. either Austin Heart or Dr. Kessler. See id. § 74.351(b). The district court initially granted the motion to dismiss. The Webbs filed a motion for rehearing and motion for new trial, and the district court granted the motions. The district court then denied Austin Heart’s and Dr. Kessler’s Dissenting Opinion by Justice PATTERSON. motion to dismiss, and this interlocutory appeal followed.

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question and provide a basis for the trial court to determine that the claims have merit. Id. at 879.

ANALYSIS The supreme court has stated that “to avoid dismissal, a plaintiff need not present evidence in the report as if it In their single issue on appeal, Austin Heart and Dr. were actually litigating the merits. The report can be Kessler argue that dismissal was mandated by section informal in that the information in the report does not 74.351(b). have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Id. Because the statute focuses on what the report should discuss, the only information relevant to the inquiry is that Abuse of discretion standard which appears within the four corners of the document. We review a trial court’s ruling on a motion to dismiss Id. at 878. When examined in its entirety, an expert report under section 74.351(b) for an abuse of discretion. may be so deficient as to a particular defendant that it American Transitional Care Ctrs. of Tex., Inc. v. constitutes no report as to that defendant. See, e.g., Garcia Palacios, 46 S.W.3d 873, 877–78 (Tex.2001). A trial v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San court abuses its discretion if it acts in an arbitrary or Antonio 2006, no pet.) (Garcia II); Garcia v. Marichalar, unreasonable manner or without reference to any guiding 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.) rules and principles. Downer v. Aquamarine Operators, (Garcia I ). Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for Dr. Cororve’s report that of the trial court. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003). To satisfy the expert report requirement, the Webbs served Austin Heart and Dr. Kessler with a two-and-one- half-page report from Dr. Cororve. The report begins by stating that “[a]ny reference in this report to Dr. David J. The expert report requirement Kessler, M.D. refers to Dr. Kessler individually, and his In a health-care liability claim, the claimant must provide employer, Austin Heart, P.A.”1 In a section titled each defendant with one or more expert reports, including “Materials Reviewed and Background,” the first a curriculum vitae for each expert, within 120 days of paragraph begins, “My opinions are based upon my filing the original petition. Tex. Civ. Prac. & Rem.Code review of ...,” then lists specific medical records and Ann. § 74.351(a). An “expert report” is: office notes from four medical facilities and five doctors, and states that “[i]n addition, my opinions are based upon my experience, training, knowledge, and qualifications as a written report by an expert that a physician.” The report next discusses Mr. Webb’s provides a fair summary of the treatment history following the implantation of his expert’s *287 opinions as of the date of the report regarding pacemaker on November 30, 2001: applicable standards of care, the manner in which the care rendered Subsequent to that procedure, Mr. Webb complained by the physician or health care on various occasions concerning his sensing the provider failed to meet the pacemaker pacing or being aware of forceful standards, and the causal heartbeats. To that extent, Dr. Kessler noted on relationship between the failure and 01/18/02 “possibly diaphragmatic stimulation the injury, harm, or damages intermittently.” With the office visit of 03/19/03, Dr. claimed. Kessler notes this was the second complaint of abdominal twitching. The pacemaker was reduced to Id. § 74.351(r)(6). Failure to serve an adequate expert see if abdominal symptoms could be relieved with less report mandates dismissal with prejudice. Id. § 74.351(b). frequent pacing. On 04/25/03, Dr. Kessler states the A report need not marshal all of the plaintiff’s proof, but patient was aware of pacing intermittently and was it must include the expert’s opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at suspicious of diaphragmatic stimulation. 878. To constitute a good faith effort, the report must inform the defendant of the specific conduct called into © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

*288 Dr. Kessler states he had previously assessed The diagnostic and corrective action eventually taken, this and had not found it to be present. On that day, specifically the increase in the ventricular pacing he tested the pacemaker with various outputs, the output, should have been implemented much sooner. patient was aware of pacing at higher outputs, but the doctor did not believe the patient had true diaphragmatic stimulation. Causation

During a pacemaker check performed on 06/08/03, Had the corrective action described occurred, Mr. the patient stated he still had “hiccup” feelings in his Webb would not have undergone the physical and abdomen, and Dr. Rodgers’ office note of 05/06/04 mental problem(s) he had and could have continued his stated the patient had some feelings of hiccup-like normal lifestyle much earlier than he did. discomfort. Austin Heart and Dr. Kessler do not challenge the adequacy of the report’s description of these three On 12/16/04, Dr. Kessler references the patient’s elements; rather, they assert that it is not clear to which ongoing anxiety, use of Xanax and his request for the doctor they apply because the report mentions five PCP’s assistance managing the anxiety. Mr. Webb’s doctors and four health care institutions, but fails to email to Dr. Kessler on 04/27/05 states how the reference any of the providers in the analysis of patient’s “been suffering two years.” The patient’s standard of care, breach and causation. They urge, *289 email of 05/04/05 asks if the pacemaker lead might therefore, that Dr. Cororve’s report is essentially “no be in the wrong place, and Dr. Rodgers responded report” as to Austin Heart and Dr. Kessler. “no.”2 Dr. Kessler’s note of 05/27/05 states the Because Austin Heart and Dr. Kessler do not contest the patient was complaining of palpitations but “I am adequacy of the report’s descriptions of the statutorily reluctant to place a new lead at this time.” required elements, the only question before this Court is whether the trial court abused its discretion in determining Subsequent to these events, Mr. Webb continued to that the report sufficiently ties Dr. Kessler to the analysis have palpitations and problems with diaphragmatic of the statutory elements. From the context and structure stimulations. He was seen by various physicians, of the report, it is clear that Dr. Cororve’s listing of the including several electrophysiological consultations. notes and records of the doctors and health care The persistence of his symptoms significantly impaired institutions in the “Materials Reviewed” paragraph of the his quality of life and ability to concentrate at work. report was not intended to make the doctors or health care Because of this, he was presecribed an anti-depressant institutions themselves the focus of Dr. Cororve’s and anti-anxiety medication. Further evaluation analysis. Thus, the focus is on the section of the report eventually documented diaphragmatic stimulation and discussing Mr. Webb’s medical treatment and the sections a new right ventricular lead was placed on September setting out the statutorily required elements. In the 7, 2005. The patient was subsequently discharged in medical-treatment discussion, only two doctors are excellent condition. named—Dr. Kessler and Dr. Rodgers—and there is one The report has three final sections setting out the three reference to unnamed “various physicians.” No doctor is statutorily required elements: expressly mentioned in the sections addressing the statutorily required elements.

Standard of Care Austin Heart and Dr. Kessler contend that Dr. Cororve’s report did not adequately tie Dr. Kessler to the statutory The standard of care in a patient such as this requires elements, citing this Court to Jernigan, 195 S.W.3d 91, more intensive investigation as to the source of a Garcia II, 198 S.W.3d 250, Garcia I, 185 S.W.3d 70, and patient’s symptoms and subsequent corrective actions Longino v. Crosswhite ex rel. Crosswhite, 183 S.W.3d to ameliorate the problem. Attempts at adjusting the 913 (Tex.App.-Texarkana 2006, no pet.). These cases are ventricular pacing outputs should routinely be distinguishable. attempted and would most likely have pinpointed the problem much earlier. This standard of care was not In Jernigan, the plaintiff filed suit against a hospital and met. several physicians including Dr. Jernigan. 195 S.W.3d at 92. The plaintiff served two expert reports; however, the first failed to mention Dr. Jernigan at all, and the second Standard of care not met mentioned him in only one sentence: “At 4:30 p.m. [the plaintiff’s] case was discussed with Dr. Jernigan....” Id. at 93. The supreme court concluded that the report was

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inadequate as to Dr. Jernigan, stating that “[t]his passing concluded that Dr. Garcia had not been served with a reference does not identify with specificity any action or report and, thus, the trial court did not have authority to inaction by Dr. Jernigan that breached the applicable grant the extension. Id. at 74. In Garcia II, the appellate standard of care. This perfunctory mention alleges no court addressed Dr. Garcia’s motion to dismiss. 198 misconduct whatsoever, much less discusses the required S.W.3d 250. The court concluded that “neither report elements with ‘sufficient specificity’ to inform Dr. informed Dr. Garcia of the specific conduct he allegedly Jernigan of ‘the conduct the plaintiff has called into performed that [the plaintiff] had called into question,” question.’ ” Id. (quoting Palacios, 46 S.W.3d at 875). and, thus, the expert reports did not constitute a good- faith effort to comply with the statutory requirements. Id. In Longino, the plaintiffs sued two doctors and a hospital at 255. The court therefore held that the trial court abused for failing to diagnose their child’s bacterial meningitis its discretion in denying Dr. Garcia’s motion to dismiss, sooner. 183 S.W.3d at 915. The plaintiffs served a single and the cause was remanded with instructions to the trial expert report that did not distinguish between the actions court to render judgment dismissing the claims against of the two doctors. Id. at 917. The report stated that, “[i]n Dr. Garcia with prejudice and to award him his reasonable consultation with Dr. James Longino,” Dr. Cameron attorney’s fees and costs of court. Id. at 256 (citing Tex. ordered tests and admitted the plaintiffs’ child to the Civ. Prac. & Rem.Code Ann. § 74.351(b)). hospital, and in the discussion of the standard of care, the report stated that Unlike Jernigan, Longino, and Garcia, in this case, the Webbs have filed a lawsuit complaining of the actions of Dr. Cameron[’s] and Dr. Longino’s only one doctor, Dr. Kessler, and their expert report is not care of [the plaintiffs’ child] fell one in which they mentioned him only in passing, in below the standard of care.... Their connection only with another doctor, or not at all. Instead, failure to either recognize or he is the subject of the majority of the report and is named acknowledge the obvious eleven times.3 The first paragraph, which states that any symptoms of fever, altered mental reference to Dr. Kessler refers to him individually and to status, and neck pain; to perform a his employer, Austin Heart, may be fairly read as timely diagnostic lumbar puncture; signaling that the report is about Dr. Kessler. In addition, and to aggressively treat [the Dr. Cororve’s description of Mr. Webb’s medical history child’s] bacterial meningitis with covers five visits with and one e-mail to Dr. Kessler an appropriate combination of spanning two and one half years in which Dr. Kessler antibiotics led to an unnecessary noted the following: “possibly diaphragmatic stimulation exacerbation of his symptoms. intermittently,” a second complaint about abdominal twitching, Mr. Webb’s awareness of pacing intermittently Id. The court concluded that the report contained “no and suspicion of diaphragmatic stimulation, Mr. Webb’s specific information concerning how Longino breached awareness of pacing at higher outputs, disbelief that the the standard of care apart from Cameron’s conduct,” and patient had true diaphragmatic stimulation, Mr. Webb’s therefore did not demonstrate a good-faith effort as to ongoing anxiety and request for assistance managing the Longino. Id. anxiety, and Mr. Webb’s complaining of palpitations, but “I am reluctant to place a new lead at this time.” The In the Garcia cases, the plaintiff filed suit against three report’s two references to comments from Dr. Rodgers—a doctors, two nurses, and a hospital. Garcia II, 198 S.W.3d notation that the patient had some feelings of hiccup-like at 252. The plaintiff served two expert reports, but neither discomfort and a response of “no” to Mr. Webb’s e-mail report mentioned Dr. Garcia at *290 all. Id. Dr. Garcia asking if the lead might be in the wrong place—as well as filed a motion to dismiss the claims against him asserting the single reference to unnamed “various physicians,” do that he had not been “served” with a report. Id. The trial not obscure the report’s focus on the actions of Dr. court initially granted the motion, but later dissolved its Kessler. In addition, unlike Longino, the actions of the order and granted the plaintiff a 30–day extension to cure two doctors named are distinguishable. any deficiencies in the report. Id. In Garcia I, the appellate court addressed the extension, distinguishing Dr. Cororve’s analysis of the statutory elements states that situations in which a deficient report is filed from those in the standard of care required “more intensive which no report is filed—a trial court has discretion to investigation,” “[a]ttempts at adjusting the ventricular grant a 30–day extension in the former situation, but not pacing outputs should routinely be attempted,” and “[t]he the latter. 185 S.W.3d at 73. Because the reports served diagnostic and corrective *291 action eventually taken, by the plaintiff focused on the acts of other defendants specifically the increase in the ventricular pacing output, and failed to mention Dr. Garcia at all, the court should have been implemented much sooner.” In the

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discussion of Mr. Webb’s medical history earlier in the prejudice and has no discretion to grant a 30–day report, it appears that both Dr. Kessler and Dr. Rodgers extension. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)- investigated Mr. Webb’s symptoms; however, only Dr. (c); Garcia I, 185 S.W.3d at 73. Yet, if the report is Kessler is named in connection with testing and making merely “deficient” (and timely filed, as here), the trial adjustments to the pacemaker. In addition, Dr. Kessler’s court is not required to immediately dismiss and has notations contradict what Dr. Cororve states is the discretion to grant a 30–day extension to cure the standard of care. According to Dr. Cororve’s report, Dr. deficiencies. Tex. Civ. Prac. & Rem.Code Ann. § Kessler “did not believe the patient had true 74.351(c). diaphragmatic stimulation” however, “[f]urther evaluation eventually documented diaphragmatic stimulation and a Austin Heart and Dr. Kessler elected to move for new right ventricular lead was placed.” Under “Standard dismissal solely on the ground that the report was “no of Care,” Dr. Cororve states that “[a]ttempts at adjusting report.”5 Having concluded that the report is “some report the ventricular pacing outputs should routinely be as to Dr. Kessler (among others),” the majority has attempted and would most likely have pinpointed the rejected the sole ground for dismissal. As such, the problem much earlier.” After reviewing the report in its appropriate remedy would be a remand to the trial court entirety, I cannot conclude that the trial court abused its for the cause to proceed without the need for an discretion in determining that the report represents a extension. good-faith effort to address the actions of Dr. Kessler.

The Remand CONCLUSION

The majority concludes that Dr. Cororve’s report is In summary, I disagree with the majority’s holding that deficient and remands this cause to the district court to the trial court abused its *292 discretion in finding that consider whether a 30–day extension is appropriate to the expert report proffered by the Webbs adequately links address the deficiency. This remedy is inappropriate Dr. Kessler to the elements of standard of care, breach of because it provides relief to Austin Heart and Dr. Kessler the standard, and causation. I would affirm the order of on a ground not raised in the trial court or on appeal. See the trial court. I further disagree with the remedy Tex.R.App. P. 33.1. fashioned by the majority because it grants relief to Austin Heart and Dr. Kessler on a ground that they did Austin Heart and Dr. Kessler challenged Dr. Cororve’s not raise in the trial court or on appeal. For these reasons, report solely on the ground that it was “no report,” not I respectfully dissent. that it was a “deficient report.”4 The difference between the two is strategically significant. If the report is “no report,” then the trial court must dismiss the case with

Footnotes 1 These included records of five physicians, three hospitals, and a clinic.

2 In their brief, the Webbs state that the email response was actually by Dr. Kessler rather than Dr. Rodgers and the reference in the report is a typographical error. However, there is no evidence in the record on this point other than Dr. Cororve’s report. 3 The report does not mention who was responsible for the diagnosis of diaphragmatic stimulation or placing a new right ventricular lead. 4 Austin Heart, P.A. is alleged to be vicariously liable for the conduct of Dr. Kessler. Dr. Cororve’s report notes at the outset that “[a]ny reference in this report to David J. Kessler, M.D. refers to Dr. Kessler individually, and his employer, Austin Heart, P.A.” Consequently, for the purposes of this appeal, the report must link Dr. Cororve’s opinions to the actions of Dr. Kessler. 5 The Webbs suggest that a tally of the number of times a physician is mentioned in a report is significant. They note that Dr. Kessler’s name appears eleven times in Dr. Cororve’s report (as opposed to three times for Dr. Rodgers and once for “various physicians”). They argue that this could lead to a reasonable conclusion that the report must be about Dr. Kessler and his actions. However, we are not persuaded that such a tally is relevant to the analysis. A physician may be named in a report any number of times simply because he was intimately involved in the treatment of a patient, yet the complaint may be with the conduct of a physician who saw the patient only once and is mentioned in the report only once. The number of times a physician © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (2007)

is mentioned in a report, by itself, has little bearing on whether the opinions expressed in the report concern that physician. What matters, of course, is how the physician is mentioned and what the report communicates about that physician. 6 It is not clear what the reference to “various physicians” and “electrophysiological consultations” in the report means or is intended to communicate. 7 Jernigan interpreted a prior version of the statute that had a different standard for granting an extension to cure. Under the previous iteration of the statute, the trial court could grant an extension only if it found that the failure to comply with the statute was “not intentional or the result of conscious indifference but was the result of an accident or mistake.” See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) repealed by Acts 2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003. The Jernigan opinion does not discuss the application of this standard, the trial court’s failure to grant an extension under this standard, or whether the trial court could have considered such an extension if it had made such findings. Thus, the Jernigan opinion is distinguishable from this case on this basis alone. However, even if the trial court’s discretion to dismiss claims under either version of the statute is viewed as the same, the expert report in Jernigan would still constitute “no report” for the purposes of dismissal under either version of the statute. 8 The dissent argues that by remanding to allow the trial court to consider whether a section 74.351(c) extension is appropriate we are granting Dr. Kessler and Austin Heart more relief than they requested or are entitled to. The dissent’s theory is that there is a distinction under section 74.351 between (1) seeking dismissal on the basis that no report was served and (2) seeking dismissal on the basis that a report was served, but it does not meet the requirements of the statute and is deficient. According to the dissent, if a defendant seeks dismissal only on the basis that no report was served, then dismissal is not appropriate if the court finds that a report, no matter how deficient, was served. There are two problems with this theory. First, the dismissal mechanism of section 74.351 does not work the way the dissent suggests. Under section 74.351, a claimant must serve an “expert report,” as defined in the statute, or be subject to dismissal. If a claimant does not serve a report that complies with the statutory requirements, then the claimant has not served an “expert report” as defined in the statute. Whether a claimant actually fails to serve a report at all or serves a deficient report the effect under section 74.351(b) is the same—the claimant has failed to serve the required “expert report” and dismissal is the remedy. However, section 74.351(c) provides a potential cure period for situations where the claimant has served a report, but the report does not constitute the required “expert report” because “elements of the report are found deficient.” The claimant then has an opportunity to fix the defect in the report that was served. If there is a failure to cure the defect by the extended deadline, then dismissal is mandatory because the claimant has failed to serve an “expert report” as defined in the statute. While section 74.351(b) does not distinguish between a complete failure to serve a report and the failure to serve a complying report, there is a distinction between the two for the purposes of 74.351(c). When a claimant fails to serve a report at all, section 74.351(c) does not provide a basis for the trial court to grant any extension of the deadline for serving a report. Consequently, dismissal is mandatory without any cure period. When a claimant serves a report, but it is deficient, section 74.351(c) gives the trial court the discretion to grant an extension to cure. Regardless of whether a claimant has failed to serve a report at all or has served a deficient report, the statutory basis of the motion to dismiss by a defendant is the same—the claimant has failed to serve an “expert report” as required by section 74.351(b). The fact that the claimant who files a deficient report may request and receive an extension of time to cure the deficiencies does not alter the nature of the defendant’s motion to dismiss. The motion to dismiss is on the ground that the plaintiff has failed to serve an “expert report.” Second, the defendants in this case did request dismissal on the basis that, while the Webbs had served a report that mentioned Dr. Kessler, the report “fails to address the standard of care applicable to Dr. Kessler, the breach of the standard or any alleged causal link.” This is an allegation that the report served was deficient. The defendants acknowledge that a report was served and that the report addresses conduct of Dr. Kessler, but they claim it is deficient in failing to address the statutorily required elements. They are aware that section 74.351(c) grants the trial court some discretion in allowing an extension to cure certain deficient reports. But, they argue that the report in this case is so deficient that it should be viewed as “no report,” requiring dismissal rather than remand for consideration of an extension period. By alleging that the deficiency is severe enough to constitute “no report” the defendants are trying to avoid the possibility of a cure period. They are not altering their claim that the report they received is deficient and will require dismissal if not corrected. We have concluded that the report is deficient, but not so deficient as to constitute “no report.” Therefore, our options are (1) reverse the trial court order denying the motion to dismiss and render judgment of dismissal or (2) reverse the trial court order and remand for consideration of whether an extension should be granted to give the plaintiffs an opportunity to attempt to cure. Remanding for the case to proceed on its merits, even though we agree with the appellants that the report is deficient, is not an option. 1 While Dr. Cororve’s report explicitly mentions Austin Heart, the Dallas court of appeals has held that when a defendant is only alleged to be vicariously liable for the negligence of another defendant, the expert report need not specifically name or address the negligence of the defendant to whom liability will be imputed. University of Tex. Southwestern Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.). What is relevant is that the report specifically identify the person whose conduct the plaintiff is calling into question and show how that person’s conduct constituted negligence. Id.

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2 Earlier in the report, under the materials reviewed section, Dr. Cororve refers to an e-mail from Mr. Webb to Dr. Kessler dated 05/04/05. In their brief on appeal, the Webbs assert that the report erroneously attributes the response to that e-mail as being from Dr. Rodgers when it was actually from Dr. Kessler. There is, however, no evidence in the record indicating who sent the e- mail. 3 While it is true that the number of times a physician is named, by itself, does not indicate the report complains of that physician’s conduct, it is more likely that a report discussing mainly the conduct of one physician is about the conduct of that physician. 4 The motion to dismiss clearly distinguishes the two scenarios, stating: This is not an occasion in which a report was served on Austin Heart, P.A. or David J. Kessler, M.D. wherein the expert failed to address a requisite element, such as the standard of care, the alleged breach of the standard, or the alleged causal link, thus making the report deficient. Here, the report constitutes no report at all. Thus, Austin Heart and Dr. Kessler did not, as the majority contends, “argue that the report in this case is so deficient that it should be viewed as ‘no report.’ ” 5 The remand fashioned by the majority grants Austin Heart and Dr. Kessler relief not requested because the majority treats their motion to dismiss as if it were based on two grounds: (1) that the report was “no report” and (2) that even if the report was some report that it was deficient. Austin Heart’s and Dr. Kessler’s motion, however, was based solely on the first ground. Without a motion to dismiss based on deficiency, there is no basis for a finding of deficiency and no need for a 30–day extension “to cure the deficiency.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c).

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Diane Henson, J., filed dissenting opinion on denial of motion for en banc reconsideration. 257 S.W.3d 354 Court of Appeals of Texas, Austin. Attorneys and Law Firms Mark D. BOGAR, M.D., Appellant *357 Carla Garcia Connolly, Connolly & Castagna, v. L.L.P., Austin, for Appellant. Dolores G. ESPARZA, Individually and as Administrator of the Estate of Katherine G. Robert C. Alden, Don L. Davis, Byrd, Davis & Furman Guerrero; Deceased; Fernando Guerrero; Sofia G. LLP, Austin, Stephen B. Pershing, Center for Butschy; Gilberto Guerrero; Antonio Guerrero; Constitutional Litigation, P.C., Washington, DC, for Rosie G. Garza; Benito Guerrero; Josey G. Selvera; Appellees. and Frances G. Faz, Appellees. Before Justices PATTERSON, PEMBERTON and No. 03–07–00037–CV. | May 16, 2008. WALDROP.

Synopsis Background: Survivors of deceased patient brought medical malpractice action against patient’s physician and hospital after patient died from post-surgery OPINION pharmaceutical drug overdose. Physician and hospital filed a joint motion for dismissal and attorney fees based BOB PEMBERTON, Justice. on survivors’ alleged failure to file an expert report that complied with statutory requirements. The Probate Court We withdraw our opinion, dissenting opinion and No. 1, Travis County, Guy S. Herman, J., denied the judgment dated June 28, 2007 and substitute the motion for dismissal. Physician appealed. following in its stead. We overrule the Appellees’ Motion for Rehearing.

We again address issues arising from the expert report Holdings: On denial of rehearing, the Court of Appeals, requirements of section 74.351 of the civil practice and Bob Pemberton, J., held that: remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § [1] 74.351 (West Supp.2006). Appellant Mark D. Bogar, statute allowed physician to file an interlocutory appeal M.D. appeals the probate court’s denial of his motion to from trial court’s denial of the motion to dismiss; dismiss appellees’ health care liability claims under [2] section 74.351(b) for failure to serve an expert report. expert report failed to comply with the statutory Their appeal requires us to consider (1) whether we have requirements, entitling physician to sanction; subject-matter jurisdiction to consider it; (2) whether [3] appellees served the required expert report; and, if not, (3) the expert report constituted “no report” as to the appropriate appellate remedy. We conclude that we physician, such that dismissal of the action against him have jurisdiction over Dr. Bogar’s interlocutory appeal was required without any opportunity to cure the report; and that the controlling law and “four corners” of and appellees’ report leave us no alternative but to reverse and [4] render judgment dismissing appellees’ claim and discovery limitations set forth in expert-report statute awarding attorney’s fees and costs. See id. § 74.351(b). In did not deny survivors due process. their motion for rehearing and en banc *358 reconsideration, appellees have urged that our application of section 74.351 violates due process and due course of Reversed, rendered, and remanded in part. law. We disagree, for reasons we will explain herein. We will remand to the probate court to determine the amount Jan P. Patterson, J., filed a dissenting opinion and of attorney’s fees to which Dr. Bogar is entitled. dissented from the denial of en banc reconsideration.

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BACKGROUND Both Dr. Bogar and Healthsouth timely filed notices of Appellees sued Dr. Bogar and Healthsouth on May 1, interlocutory appeal. In the interim, Healthsouth settled 2006, alleging negligence in connection with medical care with appellees. We accordingly address only the appellate provided to Katherine R. Guerrero by Dr. Bogar and the issues presented by Dr. Bogar. “agents, servants, employees, representatives, and staff” of Healthsouth Rehabilitation Hospital of Austin between December 28, 2004, and January 12, 2005, when Ms. Guerrero died. Appellees alleged that following surgery, Ms. Guerrero was placed under the care of Dr. Bogar and ANALYSIS Healthsouth and, in the course of her rehabilitative treatment, was given a fatal overdose of pharmaceutical In a single issue, Dr. Bogar argues that the probate court products. Appellees pleaded that an autopsy report from abused its discretion in denying his motion to dismiss and the Travis County Medical Examiner concluded that Ms. request for attorney’s fees and costs. In addition to Guerrero “died as a result of an overdose of oxycodone disputing the merits of this contention, appellees have and propoxyphene.” filed a motion to dismiss *359 Dr. Bogar’s interlocutory appeal for want of jurisdiction, contending that no statute On or around June 6, 2006, Appellees served on Dr. authorizes him to appeal the order he seeks to challenge. Bogar and Healthsouth an expert report prepared by Dr. Jesse Adame that purported to comply with the requirement of subsection 74.351(a). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (“In a health care liability Jurisdiction [1] claim, a claimant shall, not later than the 120th day after Appellate courts generally have subject-matter the date the claim was filed, serve on each party or the jurisdiction only over appeals from final judgments and party’s attorney one or more expert reports ... for each have jurisdiction over appeals of interlocutory orders only physician or health care provider against whom a liability when that authority is explicitly granted by statute. claim is asserted.”). Both defendants timely filed Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d objections to the sufficiency of Dr. Adame’s report. See 184, 185 (Tex.App.-Austin 2005, no pet) (citing Stary v. id. (“Each defendant physician or health care provider DeBord, 967 S.W.2d 352, 352–53 (Tex.1998)). Section whose conduct is implicated in a report must file and 51.014(a) of the civil practice and remedies code serve any objection to the sufficiency of the report not authorizes an interlocutory appeal from two types of later than the 21st day after the date it was served, failing orders regarding expert reports under chapter 74. First, an which all objections are waived.”). Each defendant interlocutory appeal may be taken from an order that contended that Dr. Adame’s report failed to satisfy the “denies all or part of the relief sought by a motion under statutory definition of an “expert report” by failing to Section 74.351(b), except that an appeal may not be taken provide a fair summary of the expert’s opinions regarding from an order granting an extension under Section applicable standards of care, the manner in which the care 74.351(c).” Tex. Civ. Prac. & Rem.Code Ann. § rendered by each defendant failed to meet the standards, 51.014(a)(9) (West Supp.2006). Second, an interlocutory and the causal relationship between such failure and Ms. appeal may be taken from an order that “grants relief Guerrero’s death. See id. § 74.351(a), (l ), (r)(6). Further, sought by a motion under Section 74.351(l ).” Id. § Dr. Bogar urged that Dr. Adame, a pathologist, had failed 51.014(a)(10). to demonstrate that he was an “expert” qualified to render [2] opinions concerning the standards of care applicable to Appellees assert that the order from which Dr. Bogar Dr. Bogar, a physical medicine rehabilitation physician. seeks to appeal is neither of these. They suggest that “the See id. § 74.351(r)(5), § 74.401 (West 2005). relief sought by a motion under Section 74.351(b)” is available only where a claimant has failed to timely file Subsequently, after appellees’ 120–day deadline for an instrument purporting to be an “expert report” by the serving their expert reports expired, see id. § 74.351(a), 120–day deadline of subsection (a), not when a purported Dr. Bogar and Healthsouth filed a joint motion seeking “expert report” is timely filed but is found to be dismissal with prejudice, attorney’s fees and costs for inadequate. See id. § 74.351(b) (“If ... an expert report has failure to file an expert report complying with section not been served within the period specified by Subsection 74.351. See id. § 74.351(b). Dr. Bogar later filed an (a)....”). Here, appellees maintain, there is no dispute that amended motion to dismiss adding his earlier challenge to “the expert report of Dr. Adame was served within the Dr. Adame’s qualifications. On January 10, 2007, the required period of time.” Appellees further assert that probate court denied the dismissal motions. challenges to the adequacy or sufficiency of expert

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reports, as contrasted with their absence or timeliness, are provider failed to meet the standards, and the causal governed exclusively by section 74.351(l ). Section relationship between that failure and the injury, harm, or 74.351(l ) states that “[a] court shall grant a motion damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § challenging the adequacy of an expert report only if it 74.351(r)(6); see id. § 74.351(r)(5) (definition of appears to the court, after hearing, that the report does not “expert”). Thus, if the report does not comply with represent an objective good faith effort to comply with the subsection (r)’s “expert report” definition, it does not definition of an expert report in Subsection (r)(6).” Id. § satisfy the claimant’s requirement under subsection (a) 74.351(l ). Because Dr. Bogar’s motion, in appellees’ and exposes the claimant to potential sanctions under (b), view, is “a motion under section 74.351(l ),” they assert including dismissal. that his right of interlocutory appeal is controlled by section 51.014(a)(10) rather than (a)(9), and no appeal is Subsection (c), however, provides that “[i]f an expert available from the probate court’s order denying him report has not been served within the period specified by relief. See id. § 51.014(a)(10) (permitting appeal from an Subsection (a) because elements of the report are found order that “grants relief sought by a motion under Section deficient,” the trial court is afforded discretion to grant a 74.351(l )”) (emphasis added). They equate this case to single 30–day extension “in order to cure the deficiency.” Academy of Oriental Medicine, L.L.C. v. Andra, where we Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (emphases held that an order denying a motion challenging the added); See Ogletree, 262S.W.3d at ––––, 2007 WL sufficiency of an expert report was governed by section 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *7–8 (“the 74.351(l ) rather than section 74.351(b) and that Legislature recognized that not all initial timely served “[b]ecause this appeal challenges an order that is neither reports would satisfy each of the statutory criteria. As a an order denying the relief sought by a motion under § result, the [2003] amendments explicitly give trial courts 74.351(b) nor one granting relief sought by a motion discretion [in subsection (c) ] to grant a thirty-day under § 74.351(l ), we lack jurisdiction to hear it.” 173 extension so that parties may, where possible, cure S.W.3d at 186–89. We disagree with appellees’ views of deficient reports.... In this important respect, a deficient section 74.351 and Andra. report differs from an absent report.”). Conversely, “[i]f no report is served within the 120–day deadline provided [3] Under section 74.351(b), as the supreme court has by 74.351(a)—i.e., an ‘absent report’—the Legislature recently explained, a plaintiff may fail to “serve” an denied trial courts the discretion to deny motions to “expert report” within the period specified by Subsection dismiss or grant extensions.” Ogletree, 262S.W.3d at ––– (a) not only by failing to serve any expert report within –, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at that deadline (an “absent report”), but also by failing to *6; see also id. at –––– & n. 2, 2007 WL 4216606, at *2 provide a report within the deadline that satisfies the & n. 2, at *7 & n. 2 (“section 74.351’s language is statutory requirements for “expert reports” (a “deficient somewhat confusing, as the statute uses the phrase “has report”). See Ogletree *360 v. Matthews, No. 05–0502, –– not been served” to refer both to deficient and absent – S.W.3d ––––, –––– & n. 2, 2007 WL 4216606, at *2–3 reports.”). & n. 2, 2007 Tex. LEXIS 1028, at *6–8 & n. 2, (Tex. Nov. 30, 2007); Austin Heart P.A. v. Webb, 228 S.W.3d The supreme court also reiterated the concept that a report 276, 284 (Tex.App.-Austin 2007, no pet.); Apodaca v. served within the 120–day deadline that fails entirely to Russo, 228 S.W.3d 252, 257–58, (Tex.App.-Austin 2007, implicate the conduct of a defendant is not merely no pet.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61 deficient, but is in effect an absent report or no report as (Tex.2003) (dismissal under former article 4590i to that defendant. See id. at –––– – ––––, 2007 WL warranted for “failure to comply” with report deadline by 4216606, at *2–3, at *6–8 (citing with approval Garcia v. either failure to file or failure to file adequate report). This Marichalar, 185 S.W.3d 70, 73 (Tex.App.-San Antonio conclusion is apparent from the text and structure of 2005, no pet.) for the principle that an “expert report” that section 74.351. Subsection (a) requires the claimant to file mentioned other providers but not Garcia was in effect no one or more “expert reports” not later than the 120th day report as to Garcia and concluding that an extension was, after the date the original petition was filed, and therefore, improper); cf. Austin Heart, 228 S.W.3d at 284 subsection (b) mandates sanctions “[i]f, as to a defendant (holding that timely report that “plainly discusses the physician or health care provider, an expert report has not conduct of the physician in question” but was deficient in been served within the period specified by Subsection failing to explicitly link the physician to the *361 report’s (a).” “Expert report” is defined within section 74.351 as: stated opinions regarding standard of care and causation “a written report by an expert that provides a fair was potentially curable and should be remanded for summary of the expert’s opinions as of the date of the consideration of whether a subsection (c) extension report regarding applicable standards of care, the manner should be granted). in which the care rendered by the physician or health care

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Recently, the Texas Supreme Court has laid to rest any question as to whether the availability of interlocutory review of an order denying relief under section 74.351(b) differs depending on whether the motion’s grounds relate Dr. Adame’s report to (1) the absence of any timely-served expert report, (2) a We turn now to Dr. Bogar’s issue. Dr. Bogar asserts that timely expert report that is nonetheless not “served” on a the probate court abused its discretion in denying his defendant because it is deficient as to one or more section 74.351(b) motion because appellees failed to statutory criteria, or (3) a timely expert report that is “serve” him with an expert report. Specifically, Dr. Bogar effectively “no report” as to a defendant because it fails to urges that (1) Dr. Adame’s report did not represent a good implicate that defendant’s conduct. The supreme court faith effort to comply with the statutory requirements for concluded, as we did on original submission, that it does “expert reports” and, in fact, constituted no report as to not. See Lewis v. Funderburk, 253 S.W.3d 204, 207–08 him; and (2) Dr. Adame, as a pathologist, was not (Tex.2008). A potential limitation on this right to appeal qualified as an “expert” to evaluate Dr. Bogar’s exists, however, where a timely expert report implicates a performance as a rehabilitative *362 medicine specialist. defendant’s conduct: the trial court, in its discretion, may We need not reach the latter contention because we agree grant an extension under section 74.351(c), in which case that Dr. Adame’s report was deficient with regard to the the order denying the motion under section 74.351(b) is statutory requirements for expert reports. not appealable. Tex. Civ. Prac. & Rem.Code Ann. §§ [4] [5] [6] 51.014(a)(9), 74.351(b)-(c); see Ogletree, 262 S.W.3d at As noted above, the “expert report” or reports that ––––, 2007 WL 4216606, at * 3–4, 2007 Tex. LEXIS a health care liability claimant must serve under section 1028, at *6–8 (“If no report is served within the 120 day 74.351(a) must provide “a fair summary of the expert’s deadline provided by 74.351(a), the Legislature denied opinion as of the date of the report regarding the trial courts the discretion to dismiss or grant extensions, applicable standards of care, the manner in which the care and a trial court’s refusal to dismiss may be immediately rendered by the physician or health care provider failed to appealed.... [But] even when a report is deemed not meet the standards, and the causal relationship between served because it is deficient, the trial court retains that failure and the injury, harm, or damages claimed.” discretion to grant a thirty-day extension, and the Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A trial Legislature explicitly stated that such orders are not court, again, must grant a motion challenging the appealable.... [I]f a deficient report is served and the trial adequacy of a report only if the report “does not represent court grants a thirty-day extension, that decision—even if an objective good faith effort to comply” with this coupled with a denial of a motion to dismiss—is not definition of “expert report.” Id. § 74.351(l ). To subject to appellate review.”). In other words, an order constitute a “good faith effort,” the report must provide denying relief under subsection (b) is immediately enough information to fulfill two purposes: (1) it must appealable unless the trial court has discretion under inform the defendant of the specific conduct the plaintiff subsection (c) to grant a 30–day extension and actually has called into question; and (2) it must provide a basis does so. for the trial court to conclude that the claims have merit. Austin Heart, 228 S.W.3d at 279 (citing Bowie Mem’l Here, Dr. Bogar filed objections to Dr. Adame’s expert Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American report within 21 days of service, see Tex. Civ. Prac. & Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 Rem.Code Ann. § 74.351(a), and a motion, after the 120– S.W.3d 873, 879 (Tex.2001)). Although a report need not day deadline had expired, explicitly invoking subsection marshal all of a claimant’s proof, it must include the (b) and asserting that the probate court should dismiss expert’s opinion on each of the elements identified in appellees’ claim against him with prejudice and award section 74.351. Id. (citing Palacios, 46 S.W.3d at 878). It attorney’s fees and costs for failure to file “a statutorily is not enough for the report merely to state the expert’s defined expert report” by the deadline. See id. § conclusions about the statutory elements. Id. (citing 74.351(b). The probate court denied that motion without Palacios, 46 S.W.3d at 879). “Rather, the expert must granting an 30–day extension. Id. § 74.351(b), (c). That explain the basis of his statements to link his conclusions order “denies all or part of the relief sought by a motion to the facts.” Id. (quoting Bowie Mem’l, 79 S.W.3d at 52) under Section 74.351(b),” and we have subject-matter (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 jurisdiction to adjudicate Dr. Bogar’s appeal from that (Tex.1999)). order. Id. § 51.014(a)(9); see Lewis, 253 S.W.3d at 207; [7] Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *2– Importantly, because the statute dictates what is 3, 2007 Tex. LEXIS 1028, at *6–8; Andra, 173 S.W.3d at required in the report, the only information relevant to 186–87. We accordingly deny appellees’ motion to determining whether a report complies with the statute is dismiss Dr. Bogar’s appeal. that within “the four corners” of the report. Id. (citing

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Palacios, 46 S.W.3d at 878). This requirement “precludes with the Duragesic patch, her dose a court from filling gaps in a report by drawing inferences was reduced back to 25 mcg. She or guessing as to what the expert likely meant or was also given Protonix for intended.” Id. (citing Bowie Mem’l, 79 S.W.3d at 53). gastrointestinal prophylaxis. Despite a fairly stable hospital [8] We review a trial court’s ruling on a section 74.351(b) course, her pain increased. On motion under an abuse of discretion standard. Palacios, January 7, 2005, after her records 46 S.W.3d at 877–78. A trial court abuses its discretion were reviewed and she was cleared when it acts in an arbitrary or unreasonable manner or for surgery, she was taken to the acts without reference to any guiding rules or principles. operating room at Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, Seton/Brackenridge Hospital for 241 (Tex.1985). A clear failure by the trial court to open reduction and internal fixation analyze or apply the law correctly also constitutes an of her left femur. Her surgery went abuse of discretion. Walker v. Packer, 827 S.W.2d 833, well and she was transferred back 840 (Tex.1992). to HealthSouth Rehabilitation Hospital of Austin on January 8, The document prepared by Dr. Adame recites his 2005. She resumed her medical qualifications and concludes that “I am qualified based on regimen along with physical and my education, training and experience to offer an expert occupational therapy. Her pain opinion regarding the cause and mechanism of death of persisted and she was taken off of Mrs. Katherine Ramirez Guerrero. As a pathologist, I am Duragesic patch post surgery. familiar with the standard of care required of physicians OxyContin was added to her not to prescribe drugs either alone or in combination that therapy, initially at 10 mg and later will cause a fatal overdose.” “Such conduct,” Dr. Adame increased to 20 mg. She had bouts adds, “falls below the standard of care required of of constipation and loose stool physicians.” which was medically managed. On January 12, 2005 at 9:34 p.m. she Dr. Adame then lists the medical records and other experienced cardiopulmonary materials he had reviewed, and summarizes Ms. arrest. Despite cardiopulmonary Guerrero’s medical history. Dr. Adame notes that Ms. resuscitation until 10:13 p.m., she Guerrero was 76 years of age, and had a “past medical was pronounced dead. history of hyperlipidemia, *363 osteoarthritis, poorly controlled hypertension, and chronic dizziness.” He Dr. Adame then summarizes the “significant findings” of recounts that Ms. Guerrero had complained of left hip the autopsy report from the Travis County Medical pain following a December 25, 2004 fall and had been Examiner’s Office, including “the conclusions ... that “admitted to Seton/Brackenridge Hospital after is was Mrs. Guerrero died as a result of an overdose of determined that she had a nondisplaced fracture of the left oxycodone and propoxyphene.” femur,” but “[i]t was also determined at that time, that no surgical intervention was needed.” Adame then states: Adame then states his “opinions and conclusions.” He begins: “I concur with the autopsy conclusions.” He Her medical problems and observes that the medical examiners “performed a rehabilitation were managed by complete autopsy with toxocological analysis of blood, HealthSouth Rehabilitation vitreous humor, and urine,” and references certain Hospital of Austin. She was autopsy findings. Dr. Adame describes the composition transferred to that facility on and effect of oxycodone and propoxyphene as various December 28, 2004. She was dosing levels, including the levels indicative of toxicity placed on a Duragesic patch at 25 and death. Drawing on these observations, he states the mcg on December 29, 2004. It was following: increased to 50 mcg on December 30, 2004 because of continued Mrs. Guerrero had postmortem blood oxycodone significant pain. She was also given concentration of 0.25 mg/L. This level and the clinical her usual home medications findings of nausea and labored breathing (noted in including Doxepin, Norvasc, nursing notes shortly before her death) indicates that Zescril, Tenormin, and Imdur. the oxycodone was inducing respiratory depression. Because of significant drowsiness © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Bogar v. Esparza, 257 S.W.3d 354 (2008)

..... [the patient] more closely, restrained him more securely, or done something else entirely”). In essence, Dr. Mrs. Guerrero had postmortem blood propoxyphene Adame’s report is a second autopsy report, opining about levels of 1.0 mg/L. This concentration of propoxyphene the cause of Ms. Guerrero’s death without explaining who and the clinical findings of nausea, labored breathing, caused it or how. See Sherman v. Austin State Hosp., No. and cardiac arrest (noted in nursing notes shortly before 03–05–00296–CV, 2006 WL 305300, at *1, 2006 her death) indicates that the propoxyphene was Tex.App. LEXIS 1115, at *30–4 (Tex.App.-Austin 2006, inducing respiratory depression, cardiac arrhythmia, pet. denied) (mem.op.)(“A report finding only the cause and circulatory collapse and subsequent death. In of death does not satisfy the statutory requirements.”), addition, the respiratory depression was exacerbated by cert. denied, 549 U.S. 1133, 127 S.Ct. 976, 166 L.Ed.2d the high concentrations of oxycodone (see above). 740 (2007). We hold that the probate court abused its discretion in denying Dr. Bogar’s motion for sanctions Dr. Adame then concludes: under section 74.351(b). We sustain Dr. Bogar’s issue. In summary, Mrs. Guerrero had toxic levels of oxycodone along with lethal levels of propoxyphene which caused her *364 demise. The mechanism of Remedy death was respiratory depression, cardiac arrhythmia, [10] In the probate court, appellees requested that, in the and circulatory collapse. Additionally, autopsy event Dr. Adame’s report was found deficient, the court examination failed to demonstrate an anatomic cause of grant them a discretionary 30–day extension under section death. 74.351(c) to enable them to cure any deficiencies in the report. See Tex. Civ. Prac. & Rem.Code Ann. § All of my opinions above are predicated upon a 74.351(c). Because the probate court held that Dr. reasonable medical probability. Adame’s report “is sufficient in meeting the requirements [9] of ... Ch. *365 74,” it did not reach the extension issue. As Dr. Adame’s report fails to comply with the earlier noted, trial courts have discretion to grant requirements of section 74.351. Most notably, it does not extensions under subsection (c) where “an expert report identify in any way the person or persons whose conduct has not been served within the period specified by is the subject of any of his opinions regarding standard of Subsection (a) because elements of the report are found care, causation, and death. We have held that where a deficient.” See id. § 74.351(c). Conversely, where an defendant is not identified at least in some manner within expert report has not been “served” as to a defendant the “four corners” of the report, the report is, for that within the 120–day period because no report is timely reason alone, deficient as to that defendant because it served or a report fails to implicate the defendant’s would require the reader to infer or make an educated conduct, the trial court has no discretion but to dismiss guess as to whose actions the expert is complaining. upon a section 74.351(b) motion. Ogletree, 262 S.W.3d at Austin Heart, 228 S.W.3d at 281; Apodaca, 228 S.W.3d ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at 257–58; see Marichalar, 198 S.W.3d at 255.1 The at *6 (citing Marichalar, 185 S.W.3d at 73). In Austin report likewise fails to describe the standard of care Heart, we discerned from this statutory scheme legislative potentially applicable to Dr. Bogar, other than a broad intent that in “at least some situations where a timely reference to “the standard of care required of physicians report is deficient [but not entirely absent or no report] ... not to prescribe drugs either alone or in combination that the trial court should consider whether the deficiency is will cause a fatal overdose,” which he never applies or such that it warrants allowing a cure period.” 228 S.W.3d analyzes in light of specific facts and circumstances. at 284. Because we concluded that the report at issue in Further, Dr. Adame never describes how Dr. Bogar might the case was deficient as opposed to no report regarding have breached a standard of care or link such a breach to the physician defendant, we deduced that subsection (c) Ms. Guerrero’s death. See Jernigan v. Langley, 195 required us to remand to the trial court, in lieu of S.W.3d 91, 93–94 (Tex.2006) (affirming dismissal under rendering a judgment of dismissal and sanctions, to afford former article 4590i where report made only “passing the court the opportunity to exercise its discretion whether mention” of defendant physician and failed to state how to grant a 30–day extension. Id. Appellees urge that the he breached the standard of care or how his alleged same appellate relief is appropriate here if we reverse the breach caused injury); see also Palacios, 46 S.W.3d at probate court’s order denying Dr. Bogar’s section 879–80 (conclusory statement that “precautions to prevent 74.351(b) motion. [patient’s] fall were not properly utilized” did not sufficiently apprise physician whether the expert believed Our disposition of this question turns on whether the that the standard of care required him “to have monitored flaws in Dr. Adame’s report render it merely deficient

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with respect to the statutory criteria or, as Dr. Bogar report that links Dr. Kessler to Dr. Cororve’s opinions argues, render the report no report as to him. If we hold regarding the breach of the standard of care and causation the former, we would, under Austin Heart, remand to any more than Dr. Rodgers or the other ‘various afford the trial court the opportunity to exercise its physicians’ references.” Id. at 281. Although we discretion whether to grant a 30–day extension under emphasized that “a report’s adequacy under section section 74.351(c) to cure the deficiency. If we conclude 74.351 does not depend on whether the expert uses any that Dr. Adame provided no report as to Dr. Bogar, we particular magic words such as ‘the standard or care was would instead render the judgment the trial court should breached by Dr. Kessler,’ ” we observed that “Dr. have rendered—dismissal. Austin Heart, 228 S.W.3d at Cororve’s report is silent as to whether a single physician, 284; see Ogletree, 262 S.W.3d at ––––, 2007 WL multiple physicians, or all physicians mentioned in the 4216606 at *3, 2007 Tex. LEXIS 1028, at *8–9 (“If no report failed to meet the standard of care and caused report is served within the 120 day deadline provided by injury to Mr. Webb.” Id. at 281–82. Nonetheless, we 74.351(a), the Legislature denied trial courts the distinguished Dr. Cororve’s deficient report from the “no discretion to dismiss or grant extensions....”). We report” found in Marichalar: accordingly compare Dr. Adame’s report to those in other cases under section 74.351 in which the distinction Here, a timely report plainly discusses the conduct of between a timely report constituting no report versus a the physician in question and the report discusses merely deficient report has been addressed. opinions on the standard of care and causation that could be linked to the conduct of the physician set out In Marichalar, the plaintiff asserted claims for medical in the report, but simply are not. The report is not negligence relating to a sponge that was left in her body deficient because it does not relate to Dr. Kessler at all. during abdominal surgery. She named as defendants three It is deficient because the link between Dr. Kessler’s physicians—Prieto, Garcia–Arecha, and Garcia—two conduct and the expert’s conclusions is not expressly nurses, and the hospital. Marichalar timely served an stated. The report in this case is, therefore, some report expert report prepared by an obstetrician-gynecologist, as to Dr. Kessler (among others), but it is not sufficient Dr. Miller, in which he stated that Prieto, the surgeon, and to meet all of the requirements of section 74.351. It is Garcia–Arecha, the assistant surgeon, deviated from the an example of what section 74.351(c) refers to as a standard of care because they allowed “the lap sponges report that “has not been served within the [120–day not to be counted correctly and then noted in the chart that period for serving reports] because elements of the they were correct” and then “failing to diagnose and report are found deficient.” remove the laparotomy sponge in a timely manner.” However, neither Dr. Miller nor a nurse expert implicated Id. at 284; see also id. at 285 (suggesting that “[i]f the Dr. Garcia, as opposed to the other providers, in their expert is of the opinion that Dr. Kessler’s conduct respective reports. See Garcia v. Marichalar, 198 S.W.3d breached the standard of care and caused injury, he will 250, 253 (Tex.App.-San Antonio 2006, no pet.). The San not have to generate a new, previously nonexistent report. Antonio Court of Appeals concluded that “with regard to He will simply have to add the link between his already Garcia, there was no timely served expert report,” stated conclusions and the already referenced conduct of requiring the trial court to dismiss Marichalar’s claims Dr. Kessler. Therefore, the circumstances here are not against Garcia and depriving it of any discretion to grant a similar to the situation where a plaintiff simply has 30–day extension. Marichalar, *366 185 S.W.3d at 73; missed the deadline for serving a report with respect to Marichalar, 198 S.W.3d at 252. the conduct of a physician.”).

In Austin Heart, the expert, Dr. Cororve, repeatedly More recently, the supreme court in Ogletree, although referred in the report’s background section to defendant apparently endorsing the “no report” concept of physician Dr. Kessler by name and discussed various acts Marichalar, see Ogletree, 262 S.W.3d at ––––, 2007 WL by him and other identified and unidentified caregivers. 4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing However, Dr. Cororve did not explicitly link Dr. Marichalar with approval), also indicated that the Kessler’s acts to Cororve’s subsequent opinions regarding omission of a defendant’s name would not categorically the applicable standard of care, how it was breached, and render a report “no report” as to that defendant. The how the breach caused injury. Austin Heart, 228 S.W.3d plaintiffs alleged negligence by Dr. Jan Ogletree, a at 280–81. We concluded that the report was deficient urologist, in performing a urinary catheterization because “it requires the reader to infer or make an procedure on John Burke Matthews in a manner causing educated guess that Dr. Cororve [the expert] is identifying him injuries and ultimate death. The plaintiff timely Dr. Kessler as the physician who breached the standard of served the one-page expert report of Dr. Richard Karsh, care and caused injury” and that “[t]here is nothing in the which stated, in relevant part:

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In my opinion (but I would have to defer to a urologist “where there is an absence of a report, rather than a report on this) given the inability of the nursing staff to pass that implicated a provider’s conduct but was somehow the Foley catheter into the bladder and the necessity deficient.” Ogletree, 262S.W.3d at –––– n. 2, 2007 WL *367 for the urologist to utilize a stiff metallic “wire” 4216606, at *7 n. 2, 2007 Tex. LEXIS 1028, at *7 n. 2. to transverse the urethra, such manipulation and These statements imply that a defendant provider’s catherization should have been performed under conduct can be “implicated” by a report even if the fluoroscopic guidance. Had that been done the provider is not explicitly mentioned by name and that perforation might well have been avoided but certainly although such an omission might render the report could have been diagnosed at the outset, with the deficient, it would not for that reason alone render the likelihood of a smaller tear having resulted. report “no report” as to the provider.2

If not recognized in a timely manner, such a tear could *368 [11] Turning to Dr. Adame’s report, it is, as noted, lead to long-term problems, including bladder (or, if a essentially a second autopsy report, opining about the urethral tear, urethral) dysfunction, infection, etc. It is cause of Ms. Guerrero’s death without explaining who apparent that a cystogram was performed shortly after caused it or how. There are only cursory references to the the catherization, although the exact timetable is conduct of anyone connected to Ms. Guerrero’s care. In unclear; nor do I have records to determine whether or the “History” section of his report, Dr. Adame notes that not the response of the physician to the tear was after her fall, Ms. Guerrero’s “medical problems and appropriate. (Of course, those might be best reviewed rehabilitation were managed by HealthSouth by a urologist). Rehabilitation Hospital of Austin,” where she was later “transferred back ... on January 8, 2005” following her Ogletree, 262 S.W.3d at ––––, 2007 WL 4216606, at *1, hip surgery at Brackenridge. Adame then recounts: 2007 Tex. LEXIS 1028, at *2–3. Dr. Ogletree complained that Dr. Karsh, as a radiologist, was not qualified to She resumed on her medical render opinions on a urologist’s standard of care. Because regimen along with physical and of this defect, Ogletree asserted, no “expert report” was occupational therapy. Her pain “served” within the 120–day deadline, the trial court had persisted and she was taken off of no discretion to grant a 30–day extension and its denial of Duragesic patch post surgery. his section 74.351(b) motion should therefore be OxyContin was added to her immediately appealable. The supreme court, however, therapy, initially at 10 mg and later characterized this type of complaint as a report being increased to 20 mg. She had bouts “deemed not served because it is deficient,” and subject to of constipation and loose stools a discretionary 30–day extension under section 74.351(c). which were medically managed. Id. at ––––, 2007 WL 4216606, at *3, at *7–8. It held that On January 12, 2005, at 9:34 p.m., “[b]ecause a report that implicated Dr. Ogletree’s conduct she experienced cardiopulmonary was served and the trial court granted an extension, the arrest. Despite cardiopulmonary court of appeals could not reach the merits of its motion resuscitation until 10:13 p.m., she to dismiss.” Id. at ––––, 2007 WL 4216606, at *4, at *9 was pronounced dead. (emphasis added). In his “opinions and conclusions” regarding the cause of Although the supreme court did not squarely address the death, Dr. Adame does not elaborate on the specific significance of Dr. Karsh’s omission of Dr. Ogletree’s conduct or persons to whom he attributes the overdose name from his report, it characterized the report as other than vaguely alluding to “clinical findings” of “directed solely to Dr. Ogletree’s care (although it did not “nausea, labored breathing, and cardiac arrest” that, to mention him by name),” id. at ––––, 2007 WL 4216606, him, confirmed that the amounts and combination of at *1, at *2, and “implicating” Dr. Ogletree’s conduct. Id. oxycodone and propoxyphene were inducing respiratory at ––––, 2007 WL 4216606, at *4, at *9 (“a report that depression, cardiac arrhythmia, circulatory collapse, and implicated Dr. Ogletree’s conduct”). The supreme court’s subsequent death. references to a report “implicating” a provider’s conduct appears to allude to section 74.351(a)’s 21–day deadline Although the distinction between “no report” and a by which “[e]ach defendant physician or health care deficient-but-potentially curable report can be elusive, we provider whose conduct is implicated in a report must file conclude that Dr. Adame’s report is no report as to Dr. and serve any objection to the sufficiency of the report.” Bogar. Dr. Adame, again, never mentions Dr. Bogar in his Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis report. Although that omission alone may not alone added). Elsewhere the court distinguishes between cases render the report “no report,” the report entirely fails to

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implicate Dr. Bogar’s conduct—if any person’s conduct. recovery. It may be that once The report is simply silent regarding how the overdose discovery is complete and the case occurred and who, if anyone, was responsible for it. Dr. is tried, there is no need for expert Adame does not identify any acts or omissions, by testimony.... But the Legislature persons identified or unidentified, to which he attributes envisioned that discovery and the the overdose. Cf. Ogletree, 262 S.W.3d at ––––, 2007 WL ultimate determination of what 4216606, at *1, 2007 Tex. LEXIS 1028, at *2–4 (report issues are submitted to the opining that “the urologist” should have performed factfinder should not go forward manipulation and catheterization under fluoroscopic unless at least one expert has guidance and attributing patient’s injuries to same). Nor, examined the case and opined as to even assuming Adame’s passing references to Ms. the applicable standard of care, that Guerrero’s “medical regimen” and receipt of oxycodone it was breached, and that there is a could implicate the conduct of any person, would his causal relationship between that report implicate Dr. Bogar’s conduct as opposed to failure to meet the standard of care unidentified agents of Healthsouth. See Marichalar, 185 and the injury, harm, or damages S.W.3d at 73; Marichalar, 198 S.W.3d at 252. Dr. Adame claimed. Thus, because res ipsa cannot cure these omissions simply by “add[ing] the link loquitur is an evidentiary rule while between his already stated conclusions and *369 the the expert report is a threshold already referenced conduct” of Dr. Bogar. See Austin requirement for bringing a lawsuit, Heart, 228 S.W.3d at 285. There is nothing in the report we do not believe that the regarding Dr. Bogar that could be linked to anything. Legislature intended for section Consequently, Dr. Adame could “cure” the deficiencies in 74.201 to eliminate the procedural his report only by “generat[ing] a new, previously requirement of an expert report at nonexistent report” as to Dr. Bogar. See id. Such a the commencement of litigation. remedy, as we have explained, is proscribed by section 74.351.3 See Marichalar, 198 S.W.3d at 255–56. (internal citations and quotes omitted). We find this analysis persuasive. [12] Consequently, even if res ipsa loquitur applied to In their motion for rehearing and reconsideration en banc, appellees acknowledge that “[t]he report did not appellees’ claims against Dr. Bogar, it would not excuse assign blame for the victim’s harm to a specific physician their failure to serve him with an expert report. or hospital employee by name” and is silent regarding “who exactly did what.” They suggest that “Dr. Adame’s report shows a fatal overdose of medications given to an inpatient in the hospital, a lapse with all the hallmarks of Constitutional issues [13] res ipsa loquitur ” that “create[s] a powerful presumption In their motion for rehearing and for reconsideration that the overdoses were the result specifically of en banc, appellees attribute their noncompliance to negligence by the treating physician of record.” Even chapter 74’s *370 limitations on discovery, urging that assuming res ipsa loquitur applied in this case, this “the report could not have [complied] without compulsory evidentiary presumption would not create an exception to process, as the precise facts regarding which named section 74.351’s expert report requirement. The individuals administered each dose, failed to comprehend Marichalar court rejected a similar contention in a the danger or catch the error, or failed to remedy its “sponge case”—surgeons left surgical sponges inside the effects, were then and remain today in the sole possession plaintiff during abdominal surgery. The court explained: of the defendants.” Section 74.351(s) provides:

Until a claimant has served the expert report and While section 74.201 allows for the curriculum vitae as required by Subsection (a), all application of res ipsa loquitur, we discovery in a health care liability claim is stayed do not interpret it as an exception except for acquisition by the claimant of information, to section 74.351’s expert report including medical or hospital records or other requirement. Res ipsa loquitur is an documents or tangible things, related to the patient’s evidentiary rule. In contrast, section health care through: 74.351’s expert report requirement establishes a threshold over which (1) written discovery as defined in Rule 192.7, Texas a claimant must proceed to Rules of Civil Procedure; continue a lawsuit; it does not establish a requirement for © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Bogar v. Esparza, 257 S.W.3d 354 (2008)

(2) depositions on written questions under Rule 200, in particular, we are mindful of two general principles. Texas Rules of Civil Procedure; and First, “there are constitutional limitations upon the power of courts ... to dismiss an action without affording a party (3) discovery from nonparties under Rule 205, Texas the opportunity for a hearing on the merits of his [or her] Rules of Civil Procedure. cause.” Thoyakulathu v. Brennan, 192 S.W.3d 849, 855 (Tex.App.-Texarkana 2006, no pet.) (quoting Walker, 111 Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s). S.W.3d at 66 (quoting TransAmerican Nat. Gas Corp. v. “Notwithstanding any other provision of this section, after Powell, 811 S.W.2d 913, 917–18 (Tex.1991))). Second, a claim is filed all claimants, collectively, may take not the filing of a frivolous lawsuit can be misconduct subject more than two depositions before the expert report is to sanction. Id. (citing Palacios, 46 S.W.3d at 878). served as required by Subsection (a).” Id. § 74.351(u). “[O]ne purpose of the expert-report requirement is to These provisions thus bar oral depositions of parties and deter frivolous claims.” Walker, 111 S.W.3d at 66. “The allow only two oral depositions of non-parties before the Legislature has determined that failing to timely file an expert report is served. They also bar pre-suit depositions expert report, or filing a report that does not evidence a to investigate potential claims under rule 202. In re good-faith effort to comply with the definition of an Jorden, 249 S.W.3d 416, 420 (Tex.2008). expert report, means that the claim is either frivolous, or [14] [15] at best has been brought prematurely. This is exactly the Appellees urge that their inability to orally depose type of conduct for which sanctions are appropriate.” Dr. Bogar before serving their expert report creates “an Palacios, 46 S.W.3d at 878. Consequently, the supreme intolerable procedural conundrum” or “catch–22” by court rejected a due-process challenge to former article preventing them from obtaining the very information they 4590i’s mandatory dismissal of health care liability need to prepare a sufficient expert report.4 This claims for failure to comply with statutory requirements. “conundrum,” appellees assert, imposes an “impossible Walker, 111 S.W.3d at 66 (“The Gutierrezes’ failure to condition” on medical malpractice claimants’ property file an adequate report thus raised the presumption that rights in their causes of action that violates the due their claims were frivolous, or at best, premature.... We do process clause of the fourteenth amendment to the United not believe the Constitution requires prior notice that the States Constitution and due course of law under article I, law is serious about a clearly stated consequence for section 19 of the Texas Constitution. See U.S. Const. failing to comply with its terms. The sanction imposed ... amend. XIV; Tex. Const. art. I, § 19.5 Appellees was a direct result of their failure to file an expert report acknowledge that “Texas courts construe Article I, that complied with the statutory requirements. Section 19, in line with the federal due process Consequently, dismissal was appropriate and did not guarantees” and that “[s]tandards for Texas constitutional violate the due process clause, even in the absence of a claims regarding access to the courts are the same under notice of noncompliance prior to the motion to dismiss.”); due process and open courts.” See University of Tex. Med. see Brennan, 192 S.W.3d at 855–56 (applying Walker to Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995); Sax v. section 74.351). Votteler, 648 S.W.2d 661, 664 (Tex.1983).6 Appellees stop short of “contend[ing] that the expert report Turning to appellees’ specific challenge, they have the requirement must be invalidated for all cases,” but instead burden of establishing that section 74.351’s discovery urge us to “construe Section 74.351 to avoid a limitations have in fact prevented them from satisfying constitutional problem” by either “declar[ing], for cases the statute’s expert-report requirements and pursuing their where medical negligence by one or more defendants claim. See McGlothlin v. Cullington, 989 S.W.2d 449, *371 is clear but where the plaintiff cannot allocate fault 453 (Tex.App.-Austin 1999, pet. denied) (burden on among them without discovery, that Section 74.351(s) claimant asserting open-courts violation is to provide does not stay the discovery necessary to obtain the fault sufficient evidence that the expert report requirement, and allocation facts that would perfect the required expert not her own inaction, actually functioned to keep her from report; or declar[ing] the expert report in such a case pursuing her claim). Appellees suggest in their motion sufficient without those facts, since they are unnecessary that they were forced to “prepare their report[ ] on to demonstrate at the threshold that the case has merit.”7 medical records alone” and that these records were [16] [17] [18] [19] inadequate, but do not suggest they ever actually pursued We begin with the presumption that section the discovery permitted under section 74.351(s) beyond 74.351 is constitutional. Walker, 111 S.W.3d at 66. serving requests for disclosures at some unspecified point Additionally, the party challenging the constitutionality of in *372 time.8 Nor is there any evidence in the record to a statute bears the burden of establishing that the support such an assertion. We observe that section enactment fails to meet constitutional requirements. Id. 74.351(s) and (u) authorize claimants to obtain discovery With regard to restrictions on health care liability claims via not only requests for disclosure, but interrogatories,

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requests for production, requests for admissions, and specifically of *373 negligence by the treating physician depositions on written questions to parties (i.e., forms of of record,” whom they assert was Dr. Bogar. We disagree discovery that could have been directed to Dr. Bogar); that it is irrational, in light of the legislature’s goal of and rule 205 requests for production, depositions on curtailing frivolous health care liability claims, for it to written questions, and up to two oral depositions of non- require that appellees serve an expert report explaining parties.9 The rules further provide mechanisms for why or how this outcome was actually caused by the enforcing compliance with discovery requests.10 Appellees conduct of Dr. Bogar, as opposed to some other person or dismiss the significance of “[t]he limited written health care provider. See Walker, 111 S.W.3d at 66 discovery that Section 74.351(a) nominally permits before (explaining that the plaintiffs’ failure to comply with the service of the expert report,” asserting that it is “widely expert-report requirements “raised the presumption that understood not to extend beyond the medical records their claims were frivolous, or at best, premature” and specifically mentioned in that subsection, and defense dismissal did not violate due process); Marichalar, 198 counsel in health care liability actions uniformly refuse S.W.3d at 254–55 (“Section 74.351(r)(6) requires that an any other written discovery.” If that could be so, it is not expert report explain how the care rendered by the because of anything the legislature actually provided in physician failed to meet the applicable standard of care section 74.351, nor do appellees present evidence that any and the causal relationship between that failure and the such application of section 74.351(s) in fact prevented injury suffered by the claimant.”); see also Brennan, 192 them from obtaining any necessary discovery they had S.W.3d at 855–56 (applying Walker to reject as-applied actually sought. See Brennan, 192 S.W.3d at 854 n. 5 challenge to expert-report requirement where claimant (rejecting similar due-process argument “premised on had attempted to serve report timely, but fax machine [claimant’s] failure to receive discovery from another failed; “Section 74.351 need not provide an exception party” as “ignor[ing] the remedies available to him to geared toward such misfortune in order to provide enforce lawful discovery requests”); see also Marichalar, constitutionally adequate safeguards.”). 198 S.W.3d at 254 n. 1 (observing that “if the medical records are indeed conflicting” as to assistant surgeon’s We accordingly reject appellees contentions that our identity, as counsel had orally contended, “Marichalar application of section 74.351 on the present record could have propounded discovery to Dr. Garcia to violates due process or due course of law. discovery whether he was the assistant surgeon ... [a]nd if Dr. Garcia failed to timely answer the discovery requests, Marichalar could have moved to compel his answers.”). Like the Brennan court, “we can certainly imagine a due process deprivation to a health care liability claimant CONCLUSION pinned between a firm expert report deadline and a hypothetical absence of discovery tools,” but must As the Texas Supreme Court recently acknowledged, the similarly conclude that appellees have not carried their requirements of section 74.351(b) “can lead to seemingly burden of demonstrating that they were denied due harsh results.” Ogletree, 262S.W.3d at ––––, 2007 WL process by such a situation here. Brennan, 192 S.W.3d at 4216606, at *3, 2007 Tex. LEXIS 1028, at *3. Here, they 856 n. 8; see McGlothlin, 989 S.W.2d at 453 (claimant’s require us to render judgment dismissing appellees’ affidavit made “no mention of any actual attempt to claims against Dr. Bogar with prejudice and awarding Dr. obtain an expert report,” in lieu of article 4590i bond Bogar attorney’s fees and costs. See Tex. Civ. Prac. & requirement, “only some perceived financial barrier”). Rem.Code Ann. § 74.351(b). Further, our performance of our duty to effectuate these legislative mandates does not, [20] Appellees also question whether there is a rational on this record, exceed constitutional limitations. We relationship between chapter 74’s expert-report accordingly reverse and render a judgment of dismissal requirement as applied here and the legislature’s goal of and remand to the probate court for a determination of the discouraging frivolous lawsuits. See Lucas v. United amount of the attorney’s fee award. States, 757 S.W.2d 687, 691 (Tex.1988) (holding that it was “unreasonable and arbitrary for the legislature to conclude that arbitrary damage caps, applicable to all claimants no matter how seriously injured, will help Dissenting Opinion by Justice PATTERSON. assure a rational relationship between actual damages and the amounts awarded.”). This argument is predicated upon appellees’ view that the bare fact Ms. Guerrero died JAN P. PATTERSON, J., dissenting. of a drug overdose while in the hospital “create[s] a powerful presumption that the overdoses were the result

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Given the length of time this accelerated interlocutory care; he was the only doctor named in the lawsuit. An appeal has been pending, I will adopt my prior dissent autopsy established that Ms. Esparza, who was admitted with an additional observation, substituting this opinion for post-operative hip surgery rehabilitation, died of an and dissenting to the denial of appellees’ motion for overdose of Oxycodone and Vicodin. After a hearing, the rehearing. In Palacios, the supreme court held that (i) a trial court expressly found the report to be sufficient and trial court’s decision whether to dismiss a case under this denied the motion to dismiss.1 statute is reviewed for abuse of discretion, and (ii) to constitute a good-faith effort to provide a fair summary of The supreme court has recently held that an expert report an expert’s opinions, “an expert report must discuss the that implicates the doctor’s conduct, but fails to mention standard of care, breach, and causation with sufficient the doctor by name, is merely deficient and subject to the specificity to inform the defendant of the conduct the trial court’s discretionary power to grant a 30–day plaintiff has called into question and to provide a basis for extension as allowed under section 74.351(c). See the trial court to conclude that the claims have merit.” Ogletree v. Matthews, No. 05–0502, ––– S.W.3d ––––, –– American Transitional Care Ctrs. v. Palacios, 46 S.W.3d ––, ––––, 2007 WL 4216606, at *1, 4, 2007 Tex. LEXIS 873, 875 (Tex.2001) (predecessor statute). In that case, 1028, at *2, 14 (Tex. Nov. 30, 2007). While the majority the court found that the trial court did not abuse its recognizes this recent supreme court holding, it fails to discretion in its ruling and reversed the court of appeals. apply it to an expert report that plainly implicates Based upon Palacios, I would hold that the trial court did appellant’s conduct in prescribing a lethal dose of not abuse its discretion here. For these reasons, I Oxycodone and Vicodin—choosing instead to ignore the respectfully dissent. statutory discretion imparted to the trial court by the legislature. See id. The majority has stepped into both shoes of the trial court: (i) overruling its determination that the expert report is Although the trial court’s determination is not shielded sufficient and the litigation should go forward, and (ii) from review, we may not substitute our judgment for that finding the report to be not just deficient, but “no report,” of the trial court charged with a gatekeeping function in thus foreclosing *374 an opportunity to cure any asserted the first instance under this statute. Indeed, the trial court deficiency. As the reviewing court, we are admonished is charged not only with exercising its discretion in that a trial court abuses its discretion if it acts in an affirming or denying the motion to dismiss, but the trial arbitrary or unreasonable manner without reference to court may—in its discretion—grant a 30–day extension to guiding rules or principles. See Garcia v. Martinez, 988 cure any deficiency. Tex. Civ. Prac. & Rem.Code Ann. § S.W.2d 219, 222 (Tex.1999). When reviewing a trial 74.351(c) (West Supp.2007). Because the trial court here court’s decision for an abuse of discretion, we recognize found the report to be sufficient—and not deficient or “no that such discretionary choices are left to a court’s report”—it did not consider whether to grant a judgment, and its judgment is to be guided by sound legal discretionary extension to amend the report. principles. Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting I believe the trial court did not abuse its discretion in United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807) concluding that the report was sufficient. Because (i) the (Marshall, C.J.)). We may not substitute our own standard of review recognizes that there is a range of judgment for that of the trial court. Bowie Mem’l Hosp. v. decisions that are appropriate as long as the trial court Wright, 79 S.W.3d 48, 52 (Tex.2002). While a trial does not act in an arbitrary or unreasonable manner or court’s failure to analyze and apply the law correctly without reference *375 to guiding rules and principles, would constitute an abuse of discretion, Walker v. Packer, and (ii) the trial court acted in accord with the supreme 827 S.W.2d 833, 840 (Tex.1992), “[t]he test for abuse of court’s holdings in Palacios,2 I would conclude that the discretion is not whether, in the opinion of the reviewing trial court was guided by and employed sound legal court, the facts present an appropriate case for the trial principles and properly denied the motion to dismiss. I court’s action.... [I]t is a question of whether the court would affirm the trial court’s order. acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 Alternatively, because the trial court found the report to S.W.2d 238, 241–42 (Tex.1985). A trial court does not be sufficient and not deficient or “no report,” I would abuse its discretion merely because it decides a follow this Court’s precedent in Austin Heart, P.A. v. discretionary matter differently than an appellate court Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), would in a similar circumstance. Id. at 242. and remand this cause for further proceedings to allow the trial court to exercise its discretion and determine whether The parties agree that Dr. Bogar was the physical a 30–day extension should be granted.3 medicine rehabilitation doctor in charge of Ms. Esparza’s

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By cherry-picking language from the supreme court’s trial court under section 74.351(c), the appellees should Ogletree opinion to support its admitted “elusive” line be given a 30–day extension of time in order to cure any between a deficient report and a “nonexistent” report, the deficiencies in the expert report.1 majority overlooks the supreme court’s common sense approach regarding expert reports that implicate a health The majority reverses the trial court’s determination that provider’s conduct: The supreme court reasoned that Dr. Adame’s expert report is sufficient and renders “while the 2003 amendments were intended to decrease judgment of dismissal, holding that this report constitutes claims, they do not mandate dismissal for deficient, but “no report” as to Dr. Bogar and therefore that the trial curable, reports.” Ogletree, 262 S.W.3d at ––––, 2007 court did not have discretion to allow a 30–day extension. WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *9. In See id. § 74.351(b) (stating that trial court shall dismiss finding this report “no report,” we are beyond cherry- claim if expert report has not been served within 120 picking and into hair-splitting for which the aim is not to days); Ogletree v. Matthews, No. 06–0502, –––S.W.3d –– seek the statutory mandate nor substantial justice. ––, ––––, 2007 WL 4216606, at * 3, 2007 Tex. LEXIS 1028, at *8 (Tex. Nov. 30, 2007) (“If no report is served I would, therefore, grant the motion for rehearing. within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions.”). If an expert report fails to implicate the conduct of a particular JAN P. PATTERSON, Justice, dissenting. defendant, it is treated as “no report” as to that particular defendant. See Apodaca v. Russo, 228 S.W.3d 252, 257 For the reasons expressed in my dissenting opinion to this (Tex.App.-Austin 2007, no pet.) (report that described Court’s disposition of this case on rehearing, I conduct of other doctors and health-care providers but respectfully dissent from the denial of appellee’s motion failed to mention appellee at all constituted “no report” as for en banc reconsideration. See Bogar v. Esparza, No. to appellee); Garcia v. Marichalar, 185 S.W.3d 70, 72–73 03–07–00037–CV, 257 S.W.3d 354 (Tex.App.-Austin (Tex.App.-San Antonio 2005, no pet.) (report that focused May 16, 2008) (Patterson, J., dissenting). on conduct of other defendants and did not mention appellant at all was considered “no report” as to appellant). However, an expert report that does not fully satisfy the statutory criteria but is not so inadequate as to DIANE HENSON, Justice, dissenting. be deemed “no report” is treated as a deficient report, and trial courts have discretion to allow parties an extension The expert reports required by section 74.351 of the civil of time in order to cure the deficiencies. See Ogletree, 262 practice and remedies code “are simply a preliminary S.W.3d at ––––, 2007 WL 4216606, at *3, 2007 Tex. method to show a plaintiff has a viable cause of action LEXIS 1028, at *10 (“[A] deficient report differs from an that is not frivolous or without expert support.” Kelly v. absent report. Thus, even when a report is deemed not Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th served because it is deficient, the trial court retains Dist.] 2008, no pet. h.). One of the benefits behind the discretion to grant a thirty-day extension.”). expert-report requirement is that the screening mechanism frees up judicial resources to address non-frivolous While Dr. Adame’s report does not mention Dr. Bogar by claims. See House Comm. on Civil Practices, Bill name, it unambiguously implicates Dr. Bogar’s conduct. Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995) (noting Unlike the reports in Apodaca, see 228 S.W.3d at 257, or that predecessor statute to section 74.351 “would help Marichalar, see 185 S.W.3d at 72–73, the report in the focus judicial resources on legitimate claims”). The present case does not implicate, identify, or describe the present case, which arose after a patient *376 suffered a conduct of any physicians or medical professionals other fatal overdose of oxycodone and propoxyphene while than Dr. Bogar. Furthermore, Dr. Adame’s report receiving post-operative care for hip-replacement surgery, describes “the standard of care required of physicians not does not appear to be the type of meritless claim that the to prescribe drugs either alone or in combination that will legislature intended to prevent by imposing the gate- cause a fatal overdose.” (Emphasis *377 added). The keeping measure of the expert report. report states that “[s]uch conduct falls below the standard of care required of physicians,” and details how the levels I join Justice Patterson’s dissent in holding that the trial of oxycodone and propoxyphene found in Guerrero’s court acted within its discretion in finding the expert blood exceeded the amounts known to cause death. In report sufficient, but write separately to further address light of this language, it is clear from the four corners of the majority’s failure to remand this case for a the report that Dr. Adame is implicating the conduct of determination of whether, in the discretion afforded to the the physician who prescribed oxycodone and

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propoxyphene to Guerrero. See American Transitional opinion. The report’s failure on this Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 point is the kind of defect that the (Tex.2001) (“[T]he only information relevant to the cure provisions of section inquiry is within the four corners of the document.”). See 74.351(c) were designed to also Ogletree, 262S.W.3d at ––––, 2007 WL 4216606at address. *1, 2007 Tex. LEXIS 1028, at *2 (where expert report implicated appellant’s conduct but did not mention Id. at 282–83 (emphasis added). appellant by name, report was merely deficient and subject to extension allowed under section 74.351(c), Significantly, the Austin Heart opinion also states, “Had rather than “no report” as to appellant). Dr. Cororve referenced only actions by Dr. Kessler in the background section of his report, the link between Dr. An expert report does not have to meet the same Cororve’s opinions and the responsible physician might requirements as evidence offered in a summary-judgment be more apparent.” Id. at 281. The link between Dr. proceeding or at trial, but is merely required to “discuss Adame’s opinions and Dr. Bogar could not be more the standard of care, breach, and causation with sufficient apparent in the present case, where no other physicians or specificity to inform the defendant of the conduct the health-care professionals are named as defendants or plaintiff has called into question.” Palacios, 46 S.W.3d at mentioned in the expert report. 875, see also 879. The trial court, in its discretion, may have reasonably concluded that Dr. Bogar was Furthermore, the Texas Supreme Court’s mandate that sufficiently informed of the conduct that the plaintiff in only information within the four corners of the expert this case was calling into question—prescribing a report *378 may be reviewed for sufficiency, see combination of drugs in amounts that resulted in a fatal Palacios, 46 S.W.3d at 878, does not necessarily preclude overdose. the trial court from conducting an independent analysis of the information contained in the report. In IHS The majority’s holding in the present case conflicts with Acquisition No. 140, Inc. v. Travis, No. 13–07–00481– this Court’s holding in Austin Heart, P.A. v. Webb, 228 CV, 2008 WL 1822780, 2008 Tex.App. LEXIS 2950 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), in which we (Tex.App.-Corpus Christi Apr. 24, 2008, no pet. h.), the held that an expert report’s failure to specifically identify appellant argued that the trial court made an improper a physician as having breached the standard of care or inference about causation that extended outside of the having caused the patient’s injury merely results in a four corners of the expert report. The report failed to deficient report, subject to the cure provisions of section address a one-month gap between treatment of the 74.351(c), rather than “no report.” Id. at 282–83. The patient’s eye abscess and her death, and the trial court report in Austin Heart not only discussed the conduct of commented that the gap was the time which “causes the the appellant without identifying the appellant as having abscess to grow in the system and proliferate.” Id. at * 3, breached the standard of care or caused the injury, but at *24. The court of appeals held that the trial court did also discussed the conduct of various other physicians not abuse its discretion in making such a comment, noting without making it clear that the report related to the that expert reports may contain some level of ambiguity appellant physician. Id. at 280. Despite these omissions, “that is subject to the independent analysis of the trial this Court stated: court.” Id. The court further stated:

While we are of the view that Dr. [T]he trial court’s explanation was only beyond the Cororve’s report is deficient under ‘four corners’ of the report in the sense that the trial section 74.351 because it requires court explained medical concepts—such as abscess and the reader to make an educated cardiogenic shock—which Dr. Starer did not explain. guess regarding an essential The trial court, however, did not propose unique element, we are also aware that the causation theories that were not discussed in the expert defect might well be curable. The report. tenor of Dr. Cororve’s report, We believe that Dr. Starer’s report, which explained coupled with the fact that there is causation, but which did not explain certain medical only one physician defendant, concepts that would perhaps need to be explained at makes it quite likely that Dr. trial, was ‘less than all the evidence necessary to Cororve intended to opine that Dr. establish causation at trial,’ but still provided a ‘fair Kessler breached the standard of summary’ of causation.... The trial court’s comments care and caused injury even though the report did not contain that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Bogar v. Esparza, 257 S.W.3d 354 (2008)

were not an improper ‘inference’ and do not constitute meet the statutory requirements, “consideration by the an abuse of discretion. trial court of [the appellees’] request for an extension to attempt to cure the defect is warranted.” See Austin Heart, Id. at * 9, at *25 (quoting Tovar v. Methodist Healthcare 228 S.W.3d at 283. Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex.App.-San Antonio 2005, pet. denied)). I agree with Justice Patterson’s dissent that the trial court acted within its discretion in determining that Dr. Similarly, the trial court’s conclusion that the report Adame’s report was sufficient. However, assuming that implicated the conduct of Dr. Bogar—the only physician the report was not sufficient, I would hold in the named as a defendant—where no other physicians or alternative that Dr. Adame’s report is merely deficient, healthcare providers were implicated in the report can rather than “no report” as to Dr. Bogar, and therefore that best be characterized as an analysis of the information the proper remedy is a remand to allow the trial court to included in the report, rather than an impermissible determine whether to grant a 30–day extension of time venture outside the four corners of the expert report. under section 74.351(c), giving the appellees an opportunity to cure any deficiencies.2 As a result, I Because the trial court found Dr. Adame’s report to be respectfully join the dissent. sufficient, no 30–day extension was ever required, although the appellees requested an extension in the event that the report was found to be deficient. In light of the majority’s ruling that Dr. Adame’s expert report fails to

Footnotes 1 As we emphasized in Austin Heart—and as suggested by the supreme court in Ogletree, as we discuss below—this is not a “magic words” test. There may be a number of ways that a defendant may be referenced within the four corners a report so as to comply with the legislature’s mandate that the report “provide[ ] a fair summary as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (emphasis added). 2 In Apodaca v. Russo, 228 S.W.3d 252, 255–58 (Tex.App.-Austin 2007, no pet.), this Court affirmed a trial court order dismissing a health care liability suit under section 74.351(b) and refusing to grant a 30–day extension under section 74.351(c). The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name or otherwise. The panel observed that “[a]lthough appellant has sued only Dr. Russo, other doctors and health-care providers are implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another doctor by name, but fails to mention Dr. Russo at all.” Id. at 257. The panel found the report deficient and no report, reasoning that it did not “specifically identify the defendant and apply the statutory elements to that defendant,” id. at 258, and “[i]f a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30–day extension.” Id. at 257. We need not consider Ogletree’s implications for Apodaca’s analysis of the “no report” issue because it is dicta. See Ogletree, 262 S.W.3d at ––––, ––––, 2007 WL 4216606, at *2–3, 2007 Tex. LEXIS 1028, at *6–8 (emphasizing discretionary nature of 30–day extension when trial court finds expert report deficient). 3 The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart, 228 S.W.3d at 285 (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351 does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, 228 S.W.3d at 291 (Patterson, J., dissenting) (“[t]he difference between the two is strategically significant. If the report is ‘no report,’ then the trial court must dismiss the case with prejudice and has no discretion to grant a 30–day extension.”) (emphasis in original); Apodaca, 228 S.W.3d at 257 (“If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30–day extension.”) (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)). 4 Appellees similarly suggest that this regime incentivizes medical malpractice defendants to “maintain[ ] silence until the expert report deadline [to] entirely defeat a valid claim that in any other tort case they would each work affirmatively to defect onto a co-defendant as early as possible.” 5 Dr. Bogar does not dispute that appellees preserved their constitutional arguments in the trial court.

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6 However, as appellees further recognize, the open courts guarantee, see Tex. Const. art. I, § 13, is not directly implicated in this case because it applies only to common-law causes of action, not their statutory wrongful-death or survival claims. 7 Appellees similarly urge us to “avoid a constitutional confrontation” by remanding the case to afford them the opportunity to amend their expert report. 8 In a footnote in their motion, appellees complain that “Texas courts have never implemented the regime of preliminary disclosures provided in principle in Section 74.352; the plaintiffs had to request disclosures from the defendants, who responded—after the expert report was served—with little or nothing of substance.” 9 See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u); Tex.R. Civ. P. 192.7(a) (defining “written discovery”); see generally Tex.R. Civ. P. 194, 196–98, 200–01. 10 See Tex.R. Civ. P. 215.

1 The hospital settled and was dismissed from the lawsuit.

2 In Palacios, the court faulted the expert report for its conclusory statement that the standard of care required the hospital to have monitored Palacios more closely, restrain him more securely or done something else entirely. The court stated: “Knowing only that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American Transitional had an absolute duty to prevent falls from its hospital beds.” American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 880 (Tex.2001). Here, the trial court may have concluded that the standard of care and duty were clear from the report detailing the “toxic levels of oxycodone along with lethal levels of propoxyphene” that caused the death. 3 The majority’s criticism of this approach relies on Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.), and Garcia v. Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, no pet.), but those cases are distinguishable in that both involved multiple defendants, whereas here we have only one defendant—Dr. Bogar. 1 I do not take issue with the majority’s holding that the appellees, who failed to take full advantage of the discovery tools provided by section 74.351 of the civil practices and remedies code, cannot now argue that the statute imposes an unconstitutional burden by restricting discovery until after expert reports have been served. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u) (West Supp.2007). However, while the appellees may not have established that section 74.351’s discovery limitations prevented them from serving a sufficient expert report, they have also not been given any opportunity to cure deficiencies in Dr. Adame’s report, which, until this Court’s holding on appeal, had been deemed sufficient as to Dr. Bogar. 2 In addition to arguing that Dr. Adame’s report constituted “no report,” Dr. Bogar also argues that Dr. Adame, a pathologist, was not qualified to render opinions concerning the standard of care applicable to physical medicine rehabilitation physicians, such as Dr. Bogar. While the majority does not address this contention in light of their holding that the expert report constituted “no report” as to Dr. Bogar, I would hold that even if Dr. Adame is deemed unqualified to render an expert opinion in this case, the appellees should still be afforded the opportunity to request the 30–day extension provided by section 74.351(c). A similar argument regarding expert qualifications was made in Ogletree, in which the appellant asserted that a radiologist was incapable of opining on the standard of care applicable to urologists. Ogletree v. Matthews, No. 06–0502, ––– S.W.3d –– ––, ––––, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *4 (Tex. Nov. 30, 2007). In a concurring opinion, Justice Willett stated that the defect in the expert report consisted of “designating the wrong type of medical professionals to opine on standard of care,” and that using the wrong type of expert “is the type of defect for which a trial court may grant a discretionary section 74.351(c) extension.” Id. at *6, at *18 (Willett, J., concurring).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

Accordingly, we reverse the court of appeals’ judgment and dismiss with prejudice the Wrights’ claims against 79 S.W.3d 48 Supreme Court of Texas. Bowie Memorial Hospital.

BOWIE MEMORIAL HOSPITAL a/k/a Bowie Barbara Wright was admitted to Bowie after she sustained Hospital District d/b/a Bowie Hospital District injuries in a car accident. While at Bowie, Michael Layne, Authority d/b/a Bowie Memorial Hospital, a physician’s assistant that Bowie employed, x-rayed Petitioner, Barbara’s right knee and foot and diagnosed her with a v. fractured patella. However, Layne allegedly misplaced or Barbara WRIGHT and P.L. Wright, Respondents. misread the foot x-ray and, therefore, did not discover that Barbara had also fractured her right foot in the accident. No. 01–0814. | June 13, 2002. Shortly after Barbara was admitted to Bowie, Dr. Hodde, Layne’s supervisor, recommended that Bowie refer her to Patient brought medical malpractice action against an orthopedic surgeon. Barbara was immediately referred hospital, physician, physician’s assistant, and others, to an orthopedic surgeon and transferred to another alleging that failure to timely discover that her foot was hospital. Her accompanying medical report, which Layne fractured led to necessity of two additional surgeries. The prepared, only indicated that Barbara had a fractured 78th District Court, Wichita County, Keith Nelson, J., knee. dismissed patient’s claims. Patient appealed. The Fort Worth Court of Appeals, 48 S.W. 3d 443, affirmed in Nearly a month after the accident, Barbara’s orthopedic part, reversed in part, and remanded. Upon grant of surgeon discovered Barbara’s fractured foot. By that time, hospital’s petition for review, the Supreme Court held that the surgeon had already operated on Barbara’s knee. The expert report submitted by patient did not constitute a Wrights claim that the surgeon could have operated on good-faith effort to summarize causal relationship Barbara’s foot at the same time if he had known about the between hospital’s alleged failure to meet applicable injury. Instead, Barbara had two additional surgeries over standards of care and patient’s injury under Medical the next ten months. Liability and Insurance Improvement Act. Barbara and her husband sued Bowie, Layne, and Dr. Reversed. Hodde for medical malpractice. The Wrights also sued the orthopedic surgeon, another treating doctor, and three medical clinics not associated with Bowie. The Wrights’ Attorneys and Law Firms allegations pertinent here are that Bowie personnel did not: diagnose Barbara’s foot fracture; protect her foot; *50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles & review diagnostic tests ordered and administered at the Thompson, Dallas, Susan Irene Nelson, Dallas, for hospital; or properly supervise Layne. Petitioner. The Wrights filed an expert medical report about Britta Jean Gordon, Michael Kevin Queenan, Queenan Bowie’s, Dr. Hodde’s, and another doctor’s alleged Law Firm, DeSoto, for Respondents. negligence. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(d). The expert report states, in part: Opinion

PER CURIAM. I have reviewed the material you sent me on the above case. I believe that the hospital fell below the appropriate standard of care in not having a defined This case involves the Medical Liability and Insurance mechanism in place whereby x-rays taken in the E.R. Improvement Act’s (“the Act”) expert-report are read by a physician specialized in interpreting the requirements. See TEX.REV.CIV. STAT. art. 4590i, § films in a timely manner (i.e., less than 24 hrs). X-rays 13.01. The trial court dismissed the plaintiffs’ medical taken in the E.R. need to have re-reads performed malpractice claims after it determined that their expert within 24 hrs and if *51 there is a discrepency [sic] in report did not satisfy the Act’s requirements. The court of the x-ray readings a system should be in place to appeals concluded that the trial court abused its discretion inform the patient of this. There did not appear to be when it dismissed the plaintiffs’ claims, because the any procedure that the hospital has for tracking x-rays. expert report represented a good-faith effort to comply The hospital also doesn’t seem to have a system of with the Act. 48 S.W.3d 443, 448. We disagree. orienting health care professionals working in the E.R.

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nor any form of Q/A for P.A.’s staffing the E.R. There art. 4590i, § 13.01(d); American Transitional Care Ctrs. didn’t appear to be any organized system or protocols of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). for P.A. supervision in the E.R. The expert report must provide “a fair summary of the expert’s opinions as of the date of the report regarding ... applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to I do believe that it is reasonable to believe that if the x- meet the standards, and the causal relationship between rays would have been correctly read and the that failure and the injury, harm, or damages claimed.” appropriate medical personnel acted upon those TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6). If a findings then Wright would have had the possibility of plaintiff timely files an expert report and the defendant a better outcome. moves to dismiss because of the report’s inadequacy, the trial court must grant the motion “only if it appears to the Bowie moved to dismiss the Wrights’ claims, alleging court, after hearing, that the report does not represent a that the expert report “fails to establish how any act or good faith effort to comply with the definition of an omission of employees of Bowie Memorial Hospital expert report in Subsection (r)(6) of this *52 section.” caused or contributed to Ms. Wright’s injuries.” TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis Therefore, Bowie argued, the report does not satisfy the added). Act’s requirements. [2] We recently discussed the Act’s expert-report The trial court held two hearings to determine if the report requirement for medical-malpractice cases. See Palacios, represents a good-faith effort to meet the Act’s 46 S.W.3d at 877–80. In Palacios, we explained that, requirements. See TEX.REV.CIV. STAT. art. 4590i, § when considering a motion to dismiss under section 13.01(l ). At the first hearing, the trial court asked about 13.01(l ), “[t]he issue for the trial court is whether ‘the the causal relationship between Bowie’s conduct and report’ represents a good-faith effort to comply with the Barbara’s injury. The Wrights explained that if Bowie had statutory definition of an expert report.” Palacios, 46 diagnosed Barbara’s fractured foot earlier, then she S.W.3d at 878. To constitute a “good-faith effort,” the “probably would have had a better outcome.” They also report must provide enough information to fulfill two conceded that the orthopedic specialist Barbara saw purposes: (1) it must inform the defendant of the specific immediately after leaving Bowie “had an independent conduct the plaintiff has called into question, and (2) it duty to verify” Bowie’s medical report. Nevertheless, the must provide a basis for the trial court to conclude that the Wrights claimed that, if Bowie’s report had indicated that claims have merit. Palacios, 46 S.W.3d at 879. Barbara had a broken foot, it would have been “much easier” for the orthopedic doctor to make a proper [3] [4] [5] The trial court should look no further than the diagnosis. After the second hearing, the trial court granted report itself, because all the information relevant to the Bowie’s motion to dismiss. The record indicates that the inquiry is contained within the document’s four corners. trial court did not believe the Wrights’ claims against Palacios, 46 S.W.3d at 878. The report need not marshal Bowie, “the people who transferred [Barbara],” had merit, all the plaintiff’s proof, but it must include the expert’s given that the orthopedic surgeon “could have done his opinion on each of the three elements that the Act own work.” identifies: standard of care, breach, and causal relationship. Palacios, 46 S.W.3d at 878. A report cannot The court of appeals reversed and remanded, holding that merely state the expert’s conclusions about these the trial court abused its discretion when it dismissed the elements. Palacios, 46 S.W.3d at 879. “[R]ather, the Wrights’ claims against Bowie. 48 S.W.3d at 448. The expert must explain the basis of his statements to link his court concluded that the report inadequately summarizes conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d the causal relationship between Bowie’s alleged 882, 890 (Tex.1999). negligence and Barbara’s injury. However, it determined that the report represents a good-faith effort to comply [6] [7] [8] We review a trial court’s order dismissing a claim with the Act, because it raises the possibility that, but for for failure to comply with section 13.01(d)’s expert-report Bowie’s breach, Barbara “would have had a better requirements under an abuse-of-discretion standard. outcome.” 48 S.W.3d at 447. Palacios, 46 S.W.3d at 878. A trial court abuses its [1] discretion if it acts in an arbitrary or unreasonable manner Medical-malpractice plaintiffs must provide each without reference to any guiding rules or principles. defendant physician and health-care provider an expert Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, report with the expert’s curriculum vitae, or they must 241–42 (Tex.1985). When reviewing matters committed voluntarily nonsuit the action. See TEX.REV.CIV. STAT. to the trial court’s discretion, a court of appeals may not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

substitute its own judgment for the trial court’s judgment. rather than the “reasonable medical probability”—that See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 Barbara might have had a better outcome, the court of (Tex.1989). appeals concluded that the report’s adequacy should not turn “solely upon the claimant’s failure to use magical Here, the parties do not dispute that the expert report words like ‘reasonable probability.’ ” 48 S.W.3d at 447. fairly summarizes the alleged standard of care, because it Accordingly, the court of appeals held that the report met states that a hospital should have established procedures the good-faith effort test, because it gave the trial court a to read and interpret x-rays in a timely manner and to basis to conclude that the Wrights’ claims against Bowie inform patients about the results. See TEX.REV.CIV. have merit. 48 S.W.3d at 448. STAT. art. 4590i, § 13.01(r)(6). Also, the parties do not dispute that the report fairly summarizes how Bowie We agree with the court of appeals’ conclusion that a allegedly breached the standard of care, because the report’s adequacy does not depend on whether the expert report states that Bowie did not have a procedure to track uses any particular “magical words.” Nothing in the Act’s x-rays. See TEX.REV.CIV. STAT. art. 4590i, § plain language, or in Palacios, suggests that, for these 13.01(r)(6). Consequently, the parties only contest purposes, an expert report must express the causal whether the report constitutes a “good-faith effort” to relationship in terms of “reasonable medical probability.” fairly summarize the causal relationship between Bowie’s However, we disagree with the court of appeals’ alleged breach and Barbara’s injury. See TEX.REV.CIV. conclusion that the trial court abused its discretion in STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at dismissing the Wrights’ claims against Bowie. We have 879. held that the only information relevant to whether a report represents a good-faith effort to comply with the statutory Contrary to the court of appeals’ conclusion, it is not requirements is the report itself. Palacios, 46 S.W.3d at enough that the expert report “provided insight” about the 878. And, we have held that we review a trial court’s plaintiff’s claims. See 48 S.W.3d at 447. Rather, to decision about whether a report constitutes a good-faith constitute a good-faith effort to establish the causal- effort to comply with the Act under an abuse-of-discretion relationship element, the expert report must fulfill standard. Palacios, 46 S.W.3d at 878. Palacios ‘s two-part test. See Palacios, 46 S.W.3d at 879. Thus, under the Palacios test, we must determine whether After reviewing this report, we conclude that the trial the trial court acted unreasonably and without reference to court could have reasonably determined that the report guiding principles when it dismissed the Wrights’ claims does not represent a good-faith effort to summarize the against Bowie. See Downer, 701 S.W.2d at 241–42. causal relationship between Bowie’s failure to meet the applicable standards of care and Barbara’s injury. See The Wrights primarily rely on one statement in the report TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); to establish causation: “if the x-rays would have been Palacios, 46 S.W.3d at 879. That is because the report correctly read and the appropriate medical personnel *53 simply opines that Barbara might have had “the acted upon those findings then Wright would have had the possibility of a better outcome” without explaining how possibility of a better outcome.” In their brief to this Bowie’s conduct caused injury to Barbara. We cannot Court, the Wrights contend that this statement “explains infer from this statement, as the Wrights ask us to, that why Petitioners’ damages were caused by Bowie Bowie’s alleged breach precluded Barbara from obtaining Hospital’s breach: if the proper medical personnel at a quicker diagnosis and treatment for her foot. Rather, the Bowie had reviewed the x-rays, [Barbara] would have had report must include the required information within its a chance of diagnosis and treatment of her foot fracture.” four corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878. Because the Bowie responds that the report’s statement about report lacks information linking the expert’s conclusion causation is conclusory, because it does not explain how (that Barbara might have had a better outcome) to Bowie’s failing to correctly read or act upon the x-rays Bowie’s alleged breach (that it did not correctly read and caused injury to Barbara. Moreover, Bowie asserts, the act upon the x-rays), the trial court could have reasonably statement does not even identify the specific injuries determined that the report was conclusory. See Palacios, Bowie’s conduct allegedly caused. 46 S.W.3d at 880; Earle, 998 S.W.2d at 890. A conclusory report does not meet the Act’s requirements, In reviewing the report’s adequacy, the court of appeals because it does not satisfy the Palacios test. Palacios, 46 focused on “whether the report provides a basis to S.W.3d at 879. conclude that the claims have merit.” 48 S.W.3d at 447 (citing Palacios, 46 S.W.3d at 878–79). Although the *54 For these reasons, we hold that the trial court did not causation statement recognizes only the “possibility”— abuse its discretion when it concluded that the report did

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

not represent a good-faith effort to meet the Act’s appeals’ judgment and dismiss with prejudice the requirements. Therefore, the trial court had no discretion Wrights’ claims against Bowie. See TEX.R.APP. P. 59.1. but to dismiss the plaintiffs’ claims against Bowie. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880. In reviewing the trial court’s order, the court of appeals improperly substituted its own judgment Parallel Citations for the trial court’s judgment. See Flores, 777 S.W.2d at 41. Accordingly, we grant Bowie’s petition for review. 45 Tex. Sup. Ct. J. 833 Without hearing oral argument, we reverse the court of End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)

227 S.W.3d 221 Court of Appeals of Texas, OPINION Houston (1st Dist.). TERRY JENNINGS, Justice. CHCA MAINLAND L.P. d/b/a Mainland Medical Center, Appellant, In this interlocutory appeal,1 appellant, CHCA Mainland v. L.P. doing business as Mainland Medical Center James M. BURKHALTER, Individually and as (“Mainland”), challenges the trial court’s January 25, Independent Executor of the Estate of Glenda 2006 order denying its motion to dismiss the health care Burkhalter, Deceased, and Jamie N. Burkhalter liability claim of appellees, James M. Burkhalter, and Joe E. Ferguson, II, Appellees. individually and as independent executor of the estate of Glenda Burkhalter, deceased, and Jamie N. Burkhalter No. 01–06–00158–CV. | March 8, 2007. and Joe E. Ferguson, II (“the Burkhalters”).2

We reverse the trial court’s January 25, 2006 order Synopsis Background: Surviving family member of deceased denying Mainland’s motion to *224 dismiss and render patient, individually and as independent executor of judgment dismissing with prejudice the Burkhalters’ claims against Mainland. patient’s estate, as well as other family members, brought medical negligence action against physician and medical center, alleging that the emergency care patient received caused her death. Medical center moved to dismiss on the basis of an insufficient expert report. The 122nd District Procedural Background Court, Galveston County, John Ellisor, J., denied the motion. Medical center appealed. In their original petition, filed on July 8, 2005, the Burkhalters sued Mainland and Dr. Robin Lynn Armstrong,3 alleging that their negligence proximately caused the death of Glenda Burkhalter. On July 22, 2005, Holdings: The Court of Appeals, Terry Jennings, J., held the Burkhalters amended their original petition, further that: alleging that, on or about August 28, 2003, Glenda [1] Burkhalter sought medical care and treatment at the medical center’s appeal was timely, and Mainland’s emergency room because she was suffering [2] from progressive epigastric abdominal pain radiating to the expert report submitted in support of claims against her back, nausea, vomiting, diarrhea, some chest pain, and medical center omitted the statutory elements, thus palpitations. They also alleged that Mainland and Dr. requiring dismissal of the action. Armstrong were negligent and proximately caused Glenda Burkhalter’s injuries in (1) “deviating from the standard of care for treatment of gallstone pancreatitis secondary to Reversed and rendered. acute common bile duct obstruction by stone(s)”; (2) “failing to properly and timely diagnosis [sic] [Glenda Attorneys and Law Firms Burkhalter’s] gallstone pancreatitis secondary to acute common bile duct obstruction by stone(s)”; (3) “failing to *223 John Wesley Raley, Lanette Lurleen Lutich– properly treat [Glenda Burkhalter’s] condition”; (4) Matthews, Houston, TX, Michelle Elaine Robberson, “failing to refer [Glenda Burkhalter] with expressed Cooper & Scully, Dallas, TX, for appellant. immediacy to a specialist or physician qualified to confirm diagnosis and treat [her], or to consult with such Sheila P. Haddock, The Law Firm of Sheila P. Haddock, a specialist or physician concerning [her] condition”; (5) PLLC, Houston, TX, for appellees. “failing to insure that [Glenda Burkhalter] was properly monitored”; and (6) “failing to admit [Glenda Burkhalter] Panel consists of Justices NUCHIA, JENNINGS, and to an intensive care unit upon discharge from the HIGLEY. emergency room.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)

On August 1, 2005, the Burkhalters served Mainland with the expert report4 of John H. Fullerton, M.D. Mainland, Section 74.351(l ) provides the proper basis for lodging on August 22, 2005, filed its “Objection to Plaintiffs’ objections to the adequacy of an expert report. See id. § Chapter 74.351 Expert Report.” Mainland objected to Dr. 74.351(l ) (Vernon Supp.2006) (“A court shall grant a Fullerton’s report as inadequate and requested a motion challenging the adequacy of an expert report only “dismissal” of the Burkhalters’ claim.5 The Burkhalters if it appears to the court, after hearing, that the report does filed a response, and, on November 18, 2005, the trial not represent an objective good faith effort to comply court entered a written order denying Mainland’s with the definition of an expert report in Subsection “objections.” Mainland, on December 6, 2005, filed a (r)(6).”); Methodist Healthcare Sys. of San Antonio, Ltd. “Motion to Dismiss” the Burkhalters’ claim based on Dr. v. Martinez–Partido, No. 04–05–00868–CV, 2006 WL Fullerton’s “inadequate” report. The Burkhalters filed a 1627844, at *2 (Tex.App.-San Antonio June 14, 2006, response, and the trial court, on January 25, 2006, signed pet. denied) (mem. op.). Although an interlocutory appeal its order denying Mainland’s motion to dismiss. may be taken from an order that “grants relief sought by a Subsequently, on February 14, 2006, Mainland filed its motion under Section 74.351(l ),” a defendant has no right notice of appeal of the January 25, 2006 order. of interlocutory appeal if the trial court denies the defendant’s challenge to the adequacy of an expert report under section 74.351(l ). TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(10) (Vernon Supp.2006); Lewis v. Funderburk, 191 S.W.3d 756, 760 (Tex.App.- Jurisdiction Waco 2006, pet. filed). [1] At the outset, we address the Burkhalters’ argument [2] An expert report may be deemed untimely filed under that Mainland’s appeal is untimely because “[a] defendant section 74.351(a) if the report is served before the 120– seeking review of a trial court’s refusal to dismiss based day deadline, but deficient. Acad. of Oriental Med., L.L.C. on an inadequate expert report must file a notice of appeal v. Andra, 173 S.W.3d 184, 187 n. 5 (Tex.App.-Austin within 20 days of the order denying relief.” See 2005, no pet.); Martinez–Partido, 2006 WL 1627844, at TEX.R.APP. P. 26.1(b), 28.1. They assert that “[a]lthough *1. If an adequate expert report “has not been served” captioned as an ‘Objection’ to the expert report, within the 120–day period, the court, on the defendant’s Mainland’s first motion specifically cited section motion, shall, subject to section 74.351(c),6 enter an order 74.351(b) and clearly sought the relief enumerated in that that “awards to the affected physician or health care subsection: dismissal and recovery of costs and attorney’s provider reasonable attorney’s fees and costs of court” fees.” See TEX. CIV. PRAC. & REM.CODE ANN. § and “dismisses the claim with respect to the physician or 74.351(b) (Vernon Supp.2006). Therefore, because “[t]he health care provider, with prejudice to the refiling of the motion was denied November 18, 2005, ... any claim.” TEX. CIV. PRAC. & REM.CODE ANN. § interlocutory appeal must have been commenced no later 74.351(b). A person may appeal from an interlocutory than December 8, 2005.” In response, Mainland argues order that “denies all or part of the relief sought by a that *225 because the trial court, in its first order, only motion under Section 74.351(b), except that an appeal denied its “objections” to Dr. Fullerton’s report and did may not be taken from an order granting an extension not rule on its request to dismiss the Burkhalters’ claims under Section 74.351.” Id. § 51.014(a)(9) (Vernon under section 74.351(b), the November 18, 2005 order Supp.2006); see id. § 74.351(c) (Vernon Supp.2006). was not appealable. Here, Mainland, in its August 22, 2005 “Objection to Section 74.351(a) provides that within 120 days of filing Plaintiffs’ Chapter 74.351 Expert Report,” in addition to an original petition in a health care liability claim, a objecting to the adequacy of the Burkhalters’ report, also plaintiff must serve on each defendant an expert report, requested dismissal of the Burkhalters’ claims with along with the expert’s curriculum vitae. Id. § 74.351(a) prejudice. However, the trial court, in its November 18, (Vernon Supp.2006). An expert report is defined as “a 2005 order, did not rule on Mainland’s initial request to written report by an expert that provides a fair summary dismiss the case pursuant to section 74.351(b). Rather, the of the expert’s opinions as of the date of the report trial court only overruled Mainland’s objections to Dr. regarding applicable standards of care, the manner in *226 Fullerton’s report made pursuant to section 74.351(l which the care rendered by the physician or health care ). We note that in order to complain of an error on appeal, provider failed to meet the standards, and the causal the record must show that the trial court either expressly relationship between that failure and the injury, harm, or or impliedly ruled on the request, objection, or motion. damages claimed.” Id. § 74.351(r)(6) (Vernon See TEX.R.APP. P. 33.1(a)(2)(A). Only after Mainland Supp.2006). filed its subsequent “Motion to Dismiss” did the trial

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court enter its January 25, 2006 order denying Mainland’s definition of an expert report in Subsection (r)(6).” Id. § request for a dismissal pursuant to section 74.351(b). 74.351(l ); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, Accordingly, we have jurisdiction over the instant appeal 51–52 (Tex.2002) (applying former article 4590i, section of the trial court’s January 25, 2006 order denying 13.01(l )). Mainland’s motion to dismiss. [6] [7] [8] Because the statute focuses on what the report discusses, the only information relevant to the inquiry is within the four corners of the document. Palacios, 46 S.W.3d at 878. A report need not marshal all the Expert Report plaintiffs’ proof, but it must include the expert’s opinion on each of the elements identified in the statute. Id. In In its sole issue, Mainland argues that the trial court, in its setting out the expert’s opinions on each of those January 25, 2006 order, erred in denying Mainland’s elements, the report must provide enough information to motion to dismiss because Dr. Fullerton’s expert report fulfill two purposes *227 if it is to constitute a good faith “did not contain a fair summary of the expert’s opinions effort. Id. at 879. First, the report must inform the against Mainland on any of the three elements required by defendant of the specific conduct the plaintiffs have called section 74.351(r)(6).” Mainland asserts that the report into question. Id. Second, and equally important, the “failed to include any standard(s) of care for the hospital report must provide a basis for the trial court to conclude or the hospital staff, and it was conclusory as to the that the claims have merit. Id. hospital and hospital staff on the elements of breach of the standard of care and causation,” and therefore “was not an [9] [10] A report that merely states the expert’s conclusions objective good faith effort under section 74.351(l ).” about the standard of care, breach, and causation does not [3] [4] [5] fulfill these two purposes. Id. Rather, the expert must We review a trial court’s decision on a motion to explain the basis of his statements to link his conclusions dismiss a case under section 74.351(b) for an abuse of to the facts. Wright, 79 S.W.3d at 52. Nor can a report discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. meet these purposes and thus constitute a good faith effort Palacios, 46 S.W.3d 873, 875 (Tex.2001) (holding trial if it omits any of the statutory requirements. Palacios, 46 court’s decision to dismiss under former article 4590i, S.W.3d at 879. However, to avoid dismissal, a plaintiff section 13.01(e), is reviewed for abuse of discretion); need not present evidence in the report as if it were Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex.App.- actually litigating the merits. Id. The report can be Houston [1st Dist.] 2003, pet. denied) (same). A trial informal in that the information in the report does not court abuses its discretion if it acts in an arbitrary or have to meet the same requirements as the evidence unreasonable manner without reference to guiding rules offered in a summary judgment proceeding or at trial. Id. or principles. Downer v. Aquamarine Operators., Inc., 701 S.W.2d 238, 241–42 (Tex.1985). When reviewing [11] [12] [13] Identifying the standard of care is critical: matters committed to the trial court’s discretion, we may whether a defendant breached his or her duty to a patient not substitute our own judgment for that of the trial court. cannot be determined absent specific information about Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). what the defendant should have done differently. Id. at 880. While a “fair summary” is something less than a full Here, the issue is whether Dr. Fullerton’s report statement of the applicable standard of care and how it represents an objective good faith effort to comply with was breached, even a fair summary must set out what care the statutory definition of an expert report. See TEX. CIV. was expected, but not given. Id. When a plaintiff sues PRAC. & REM.CODE ANN. § 74.351(l ); Palacios, 46 more than one defendant, the expert report must set forth S.W.3d at 878. The definition requires a fair summary of the standard of care for each defendant and explain the the expert’s opinions as of the date of the report regarding causal relationship between each defendant’s individual applicable standards of care, the manner in which the care acts and the injury. See Doades v. Syed, 94 S.W.3d 664, rendered by the physician or health care provider failed to 671–72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v. meet the standards, and the causal relationship between Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th that failure and the injury, harm, or damages claimed. Dist.] 2001, no pet.). TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). If a plaintiff timely files an expert report and the [14] Mainland argues that Dr. Fullerton’s report is defendant moves to dismiss because of the report’s inadequate because he “did not include in his report any inadequacy, a trial court must grant the motion “only if it discussion of any standard of care applicable to a hospital, appears to the court, after hearing, that the report does not its nurses, or other hospital employees” and, “[a]s to represent an objective good faith effort to comply with the Mainland, Dr. Fullerton’s opinions on breach and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)

causation were conclusory at best.” Mainland asserts that The Burkhalters argue that because they allege in their “[i]n his report, Dr. Fullerton never states the standards of petition that Dr. Armstrong was acting as the hospital’s care applicable to a hospital or its nurses or other “agent, servant, and/or employee,” that “each statement employees.” It further asserts that “[a]lthough Dr. regarding Dr. Armstrong may implicate Mainland.” Fullerton states in one sentence—the only mention of the However, the Burkhalters cite no authority for the hospital or its staff in the entire expert report—that the proposition that, by alleging in a petition that a doctor is hospital staff breached the standard of care during Glenda acting as an “agent, servant, and/or employee” of a [Burkhalter’s] hospitalization at Mainland, he does not hospital, an expert report may be adequate under section identify how Mainland’s staff breached the standard of 74.351 in regard to a hospital. Moreover, Mainland notes care.” Additionally, “[i]n discussing proximate causation, that “Dr. Fullerton did not state that his opinions against Dr. Fullerton does not state how any conduct of Mainland Dr. Armstrong would also apply against the hospital or its nurses or other employees was a proximate cause of because of the Burkhalters’ pleading that Dr. Armstrong Glenda [Burkhalter’s] death,” and “his opinions on was an agent of the hospital.” proximate cause are conclusory.” Because Dr. Fullerton’s expert report omits at least one of In the five-page report, the only specific mention of the the three specifically enumerated requirements of section hospital occurs when Dr. Fullerton states that “[n]egligent 74.351(r)(6) in regard to Mainland, it cannot constitute an care was rendered to Glenda Burkhalter and the standard objective good faith effort to meet the statutory of care breached—by Dr. Armstrong, the treating requirements. See Jernigan, 195 S.W.3d at 94. physicians (including the hospitalists), and the hospital Accordingly, we hold that the trial court erred in denying staff-during her hospitalization at Mainland Medical Mainland’s December 6, 2005 motion to dismiss the Center.” However, the report fails to mention the health care liability claim of the Burkhalters. appropriate standard of care specifically in regard to Mainland, its nurses, and its staff. The report similarly fails to identify specifically how Mainland, its nurses, or staff breached that standard of care. Nor does the report explain any causal relationship between the acts of Conclusion Mainland, its nurses and staff, and the injuries of Glenda Burkhalter. Thus, the report omitted the statutory We reverse the trial court’s January 25, 2006 order elements of the Burkhalters’ claim against Mainland. See denying Mainland’s motion to dismiss and render TEX. CIV. PRAC. & REM.CODE *228 ANN. § 74.351(l judgment dismissing with prejudice the Burkhalters’ ), (r)(6); Jernigan v. Langley, 195 S.W.3d 91, 94 claims against Mainland.7 (Tex.2006).

Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2006).

2 See id. § 74.351 (Vernon Supp.2006). Before September 1, 2005, section 74.351(a) required that a plaintiff, within 120 days of filing a health care liability claim, serve on each defendant an expert report, along with the expert’s curriculum vitae. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1–3, 2005 Tex. Sess. Law Serv. 1590, 1591 (Vernon Supp.2006). Section 74.351(a) has been amended since the Burkhalters’ health care liability claim accrued. See id. (providing that amendment took effect September 1, 2005). However, which version of the statute applies does not affect our analysis, and we therefore cite to the current version of the statute. 3 Dr. Armstrong is not a party to this appeal.

4 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

5 See id. § 74.351.

6 See id. § 74.351(c) (“If an expert report has not been served ... because elements of the report are found deficient, the court may grant one 30–day extension to the claimant in order to cure the deficiency.”).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (2007)

7 We note that, in its brief, Mainland did not request an award of reasonable attorney’s fees. See id. § 74.351(b)(1).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

Opinion 998 S.W.2d 882 Supreme Court of Texas. *884 Justice HECHT delivered the opinion of the Court. Stephen EARLE, M.D., Petitioner, v. This medical malpractice case raises several issues, but Michael RATLIFF and Shirley Ratliff, our attention centers on whether the plaintiff’s claim that Respondents. the defendant negligently performed surgery on him is barred by limitations. The plaintiff contends that No. 98–0115. | Argued April 7, 1999. | Decided July limitations did not begin to run on his claim until his post- 1, 1999. | Rehearing Overruled Oct. 7, 1999. surgical course of treatment by the defendant ended, and Patient sued surgeon who performed two back surgeries until he became aware that the defendant had fraudulently involving metal bone plates and pedicle screws, asserting concealed from him the truth about the surgery and the medical malpractice and lack of informed consent. The treatment that followed. Further, the plaintiff asserts, to 288th Judicial District Court, Bexar County, David bar his claim would violate the Open Courts provision of Peeples, J., granted summary judgment for surgeon on the Texas Constitution.1 On each of these matters we statute of limitations grounds. Patient appealed. The San disagree with the plaintiff, but on other claims described Antonio Court of Appeals, 961 S.W.2d 591, reversed and below, we believe the plaintiff is correct. The district remanded. Surgeon filed petition for review. The court granted defendant summary judgment on all Supreme Court, Hecht, J., held that: (1) any negligence by plaintiff’s claims. The court of appeals reversed summary surgeon concerning initial surgery occurred on or before judgment on all claims.2 We partially affirm, and partially date of that surgery, and limitations period thus began to reverse, the judgment of the court of appeals and remand run on that date rather than when surgeon quit treating the case to the district court for further proceedings. patient; (2) surgeon did not fraudulently conceal known wrong, so as to toll limitations periods for medical malpractice claim; (3) open courts provision of state constitution did not preclude limitations bar of patients’ I claims relating to initial back surgery; (4) genuine issue of material fact existed, precluding summary judgment for Michael Ratliff, a thirty-eight-year-old freight handler in surgeon, on whether he was negligent concerning second good health, sustained a work-related back injury in June surgical implant of devices in patient’s back; (5) surgeon 1991, for which he was treated by Dr. Stephen Earle. On could not be held negligent concerning disclosure of risks November 21, 1991, Earle operated on Ratliff, fusing his attendant to second spinal implant surgery, where surgeon lumbar spine at three levels, decompressing nerves at four disclosed all risks identified by Texas Medical Disclosure levels, and inserting metal bone plates and screws Panel and thus complied with Medical Liability Insurance manufactured by AcroMed Corporation. Unfortunately, Improvement Act; and (6) Medical Liability and Ratliff’s condition gradually worsened. Earle continued to Insurance Improvement Act barred patient’s Deceptive treat Ratliff, and on November 16, 1993, Earle operated Trade Practices-Consumer Protection Act (DTPA) claims again to remove and replace the instrumentation that surgeon misrepresented and concealed truth implanted in the first surgery. Following this surgery, concerning back surgeries. Ratliff’s condition deteriorated even further, to the point where he was in constant pain and unable to walk, talk, or Judgment of the Court of Appeals affirmed in part and care for himself. A month later, Ratliff saw a television reversed in part, and case remanded. report on the risks associated with the AcroMed instrumentation that had been surgically implanted in him and removed. Ratliff contends that this was his first Attorneys and Law Firms inkling that Earle’s treatment had been improper. Ratliff returned to Earle on January 4, 1994, for a final visit, and *883 George H. Spencer, Sr., Phylis J. Speedlin, San not quite two months later, on February 28, he and his Antonio, for Petitioner. wife (collectively, “Ratliff”) sued Earle and others. We Donna J. Bowen, Michael L. Slack, Austin, James A. are concerned only with Ratliff’s action against Earle. Hall, San Antonio, for Respondents. Ratliff sued Earle for negligence, fraudulent concealment, strict liability, and violations of the Deceptive Trade © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Earle v. Ratliff, 998 S.W.2d 882 (1999) 42 Tex. Sup. Ct. J. 919

Practices–Consumer Protection Act.3 Ratliff alleged that (Ratliff has dismissed his strict liability claim in Earle was negligent in: order to participate in a settlement reached in In re Orthopedic Bone Screw Products Liability Litigation (Fanning v. Acromed Corp.).4) · misdiagnosing his condition; Earle moved for summary judgment on several grounds, including: that Ratliff’s claims relating to his 1991 · performing unwarranted and unnecessary surgery were barred by limitations; that with respect to surgeries on him; the 1993 surgery, Earle did not breach the standard of care owed Ratliff or cause him any injury; that Earle · implanting in his back pedicle devices not obtained from Ratliff the consent to treatment and surgery approved by the Federal Food and Drug required by statute;5 and that Earle did not knowingly Administration; make any misrepresentation to Ratliff. In connection with the last ground, Earle argued that Ratliff’s health care · failing to warn him of the risks of the surgery liability claims could not be recast as DTPA violations. and the causes of his subsequent pain; and Earle supported his motion with his own affidavit and · misrepresenting throughout the entire course certain medical records. Ratliff responded, relying on his of treatment the risks of pedicle instrumentation own affidavit and that of an expert witness, Dr. Vert and the problems experienced by other patients Mooney, as well as other medical records. The district from such a procedure. court granted Earle’s motion “on all grounds”, and Ratliff appealed. Ratliff further alleged that Earle had fraudulently concealed: The court of appeals reversed, holding that Earle was not entitled to summary judgment on any ground raised in his · that the surgeries were unwarranted and motion.6 Concerning limitations, the court concluded “that unnecessary; the allegations of this case [involving] elements of both misdiagnosis and mistreatment mak[e] it difficult to · that objective reports did not support Earle’s ascertain a specific date when the malpractice claim diagnosis and recommendation of surgery; arose.”7 Under the circumstances, the court found that limitations did not begin to run on Ratliff’s claims until · that statements Earle made to induce Ratliff to the date of Earle’s last treatment,8 which, as we have said, have surgery were incorrect; was less than two months before Ratliff filed suit. · that assurances Earle gave Ratliff about his We granted Earle’s petition for review.9 We first consider condition and the reasons *885 for his whether Ratliff’s claims relating to the 1991 surgery are continuing pain were misleading, incomplete, barred by limitations, and then whether Earle was entitled and inaccurate; and to summary judgment on Ratliff’s other claims. · the risks of using spinal fixation devices, some of which were printed on an insert in the packaging of the instrumentation Earle implanted in Ratliff. II Finally, Ratliff alleged that Earle violated the DTPA Ratliff’s negligence claims are “health care liability by telling him that: claims” within the meaning of the Medical Liability and Insurance Improvement Act.10 Section 10.01 of the Act · he needed surgery; provides in pertinent part that · he would get “95% better” and would be able no health care liability claim may be commenced to return to work; unless the action is filed within two years from the occurrence of the breach or tort or from the date the · the devices implanted in Ratliff were safe, medical or health care treatment that is the subject of approved for such use, and permanent; and the claim or the hospitalization *886 for which the · the pain he endured was to be expected and claim is made is completed....11 would get better. Thus, under this statute limitations is to run from one of three dates: the date of the breach or tort, the completion

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of treatment, or the completion of hospitalization. We Gormley’s motion for summary judgment stated that have repeatedly held that a plaintiff cannot choose the the health care of which Stover complained occurred most favorable of the three dates specified, and that “if before or during surgery. None of the excerpts of the date of the negligence can be ascertained, ... Stover’s and her expert witness’ deposition testimony, limitations must be measured from the date of the tort.” 12 attached to Gormley’s motion, mentioned any negligence occurring after surgery. Gormley’s affidavit Ratliff contends, and the court of appeals agreed, that stated that if Stover was injured at all, it was during limitations did not begin to run on his claims regarding surgery. Stover’s affidavit did not assert that Gormley the 1991 surgery until Earle quit treating him, shortly was negligent following surgery. Her affidavit did before he filed suit. Earle asserts that limitations began to assert that Gormley represented to her after her surgery run on those claims the date surgery was performed. that her pain would shortly subside, but she does not Ratliff also contends that the running of limitations was claim that her continued pain was attributable to his suspended by Earle’s fraudulent concealment of certain post-surgical treatment of her. In short, Gormley’s facts about the surgery and his prognosis. Earle responds affidavit established as a matter of law that no that Ratliff has failed to raise a genuine issue of material actionable negligence occurred after surgical treatment fact on the elements of fraudulent concealment. Finally, was completed, and nothing else in the *887 summary Ratliff argues that his claims cannot be barred by judgment record raises a fact issue on the matter. The limitations without violating the Open Courts provision of trial court correctly granted summary judgment for the Texas Constitution. Earle responds that Ratliff has Gormley on Stover’s negligence claims in their failed to raise a fact issue that he did not have a entirety.14 reasonable opportunity to sue, and thus he is not entitled As far as we have been able to determine, the only courts to the protection of the Open Courts provision. We of appeals to consider this issue have reached the same address each of these issues—when limitations began to conclusion.15 run, fraudulent concealment, and Open Courts—in turn. The court of appeals in the present case was concerned about the lingering effects of Earle’s alleged misdiagnosis, leading to unnecessary surgery, continued pain and complications, and finally another surgery. But if A the running of limitations on negligent surgery were [1] deferred while the patient continued to experience the Ratliff neither complains nor offers evidence of any effects of that surgery, then the first clause of section negligence by Earle in the treatment following the 1991 10.01 pegging the date of the breach or tort as the surgery. Ratliff does not contend, for example, that Earle beginning of the limitations period would seldom apply to should have done something after the surgery to relieve surgery. his pain or improve his back. Ratliff alleges that Earle did not tell him the truth about the surgery, the reasons for his Our conclusion does not suggest that limitations is not continued pain afterward, or his prognosis, but he does affected when a physician who can correct a misdiagnosis not assert that Earle’s alleged post-surgical statements or or lessen its consequences fails to do so. On the contrary, concealments affected his treatment or his condition. we suggested in Rowntree v. Hunsucker that a claim for continued mistreatment is not barred simply because Rather, Ratliff contends that Earle was negligent in treatment was based on a much earlier misdiagnosis.16 misdiagnosing the need for surgery, in failing to disclose Rowntree did not present such a situation,17 but Chambers the attendant risks of surgery beforehand, and in v. Conaway,18 the case on which the court of appeals performing unwarranted surgery. Assuming Ratliff is relied, did. Conaway claimed that Chambers, her family correct, Earle’s negligence occurred on or before the date physician, failed to diagnose cancer on two occasions he performed surgery, and limitations on Ratliff’s claim when she complained of a lump in her breast and on began to run on that date. We reached the same several other visits to him for general health care. Based conclusion in similar circumstances in Gormley v. on evidence that Chambers had a duty to follow up on Stover.13 There, Stover complained that Gormley was Conaway’s complaints each time he saw her, we held that negligent in performing skin graft surgery to improve her the tort Conaway complained of did not occur, and ability to wear dentures, but she argued that limitations limitations did not begin to run, until the last time did not begin to run until Gormley quit treating her. We Chambers failed to diagnose her cancer, which was her explained: last visit.19 We did not apply the course-of-treatment limitations provisions of section 10.01 to allow Conaway to complain of the initial misdiagnosis, but neither did we

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allow that first misdiagnosis to bar Conaway’s complaints therefore fraudulent concealment is imputed to Dr. about later visits. Carrell because of his failure to inform the plaintiff that the gauze sponge had been left inside the plaintiff’s Nor does our conclusion suggest that limitations on body. The proposition is essentially unsound. In claims of post-surgical negligence runs from the date of conducting a surgical operation on his patient, and in surgery. If treatment is negligent following surgery, then respect to any treatment he may administer, a surgeon section 10.01 provides that limitations begins to run from is under the duty to exercise due care. His failure to the date of the breach or tort or from the date that discharge this duty constitutes negligence and therefore treatment was completed. Thus, limitations on a claim is wrongful—but the failure does not, of itself, that a physician has improperly treated a patient’s constitute fraud or expose the surgeon to the imputation infection following surgery does not begin to run on the of fraudulent concealment. Among other essential date of surgery merely because the infection would not ingredients, a fraudulent concealment in cases of this have occurred but for the surgery. sort includes, first, actual knowledge of the fact that a wrong has occurred, and, second a fixed purpose to Ratliff does not allege that Earle misdiagnosed or conceal the wrong from the patient. Neither of these mistreated his condition after surgery or that he failed to ingredients appears from the allegations of the do anything following surgery to rectify or ameliorate his plaintiff’s petition. The trial court did not err in earlier misdiagnosis that surgery was appropriate. Under sustaining the special exception in question and in these circumstances, limitations began to run on Ratliff’s dismissing the suit.24 complaints concerning the 1991 surgery the date it was In other words, proof of fraudulent concealment requires performed. more than evidence that the physician failed to use ordinary care; it also requires evidence that the defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.25

B [3] [4] [5] A person who asserts fraudulent concealment to avoid summary judgment on limitations must raise a Although section 10.01 prescribes the limitations period genuine issue of material fact that would support his for all health care liability claims “[n]otwithstanding any assertion.26 Of course, fraudulent concealment may be other *888 law,”20 we held in Borderlon v. Peck that the shown by circumstantial evidence as well as direct statute “does not abolish fraudulent concealment as an evidence.27 We therefore must examine the evidence equitable estoppel to the affirmative defense of Ratliff offered to support his claim of fraudulent limitations”.21 Proof of fraudulent concealment, we added, concealment: Ratliff’s affidavit and that of his expert, Dr. does not prohibit an assertion of limitations altogether, Mooney. but does suspend the running of limitations until such time as the plaintiff learned of, or should have discovered, Mooney’s affidavit focuses on whether Earle was the deceitful conduct or the facts giving rise to the cause negligent, not whether Earle deliberately concealed facts of action.22 Ratliff contends that because Earle from Ratliff to deceive him. Mooney states that Earle fraudulently concealed that the 1991 surgery was *889 must have known that his recommendation of unnecessary and risky, limitations on claims concerning surgery was negligent because it was contraindicated by that surgery did not begin to run until he learned the truth the objective test results set out in Ratliff’s medical in a television broadcast more than two years later, a few records and because information available to Earle months before he filed suit. concerning pedicle implementation showed that surgery [2] should not have been attempted. While this evidence We considered the effect of fraudulent concealment in certainly shows a difference of opinion between Mooney the medical malpractice context in Carrell v. Denton.23 and Earle and raises a question whether Earle was There the defendant physician had left a gauze sponge in negligent, it falls short of showing Earle’s “actual plaintiff’s body after surgery. To avoid having his knowledge of the fact that a wrong ... occurred” necessary negligence claim barred by limitations, plaintiff asserted for fraudulent concealment. In addition, Mooney refers to fraudulent concealment. We rejected plaintiff’s argument, portions of Earle’s deposition testimony as evidence that explaining: Earle knew about, but did not inform Ratliff of, certain serious risks associated with spinal fixation surgery. This The proposition which lies at the bottom of this testimony, too, reflects a difference of professional contention is to the effect that the relation between a opinion and does not show that Earle intended to deceive surgeon and his patient involves trust and confidence, Ratliff.

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treatment by Dr. Earle was negligent and had caused the Ratliff’s affidavit does not show that Earle fraudulently problems he was experiencing until, at the earliest, in concealed facts from him. Ratliff states that Earle December 1993 when he saw the [television broadcast].” “assur[ed] me that I would be ‘95 ≠tter’ and would return The district court correctly struck this latter *890 back to work soon”, that Earle “did not inform me that my statement as being conclusory. Even if the sentence had surgery could make my condition even worse” and “never not been struck, neither it nor Mooney’s broad statements explained the permanency and severity of my condition”, about justified reliance on a physician’s advice would and that Earle “told me the [1993] surgery was necessary support Ratliff’s constitutional claim. Mooney’s statement because I had four broken screws” when in fact the that he had seen no evidence that Ratliff could have surgery was necessitated by loose, not broken, screws. discovered Earle’s alleged negligence sooner is not But Ratliff offers no evidence, direct or circumstantial, conclusive of the record. Between the 1991 and 1993 that Earle actually knew these statements were in fact surgeries, Ratliff made twenty-four visits to Earle’s false when he made them, let alone that Earle’s purpose in office. Medical records establish that he repeatedly making them was deceit. Earle may have been negligent complained of pain and a lack of improvement in his in what he said to Ratliff, just as he may have been condition. In his own affidavit, Ratliff reiterates that his negligent in performing the 1991 surgery, but Ratliff has pain persisted during that period and that there was little offered no summary judgment evidence that Earle acted improvement in his condition. Ratliff’s condition was not fraudulently by concealing a known wrong. latent, nor does he assert that the risks associated with his surgery were generally unknown to medical practitioners. Because Ratliff has failed to raise an issue of fact concerning fraudulent concealment, we conclude that he The record establishes that Ratliff had an opportunity to cannot thereby avoid the bar of limitations. learn of any negligence by Earle in performing the 1991 surgery, and the fact that he waited more than two years to do so does not raise constitutional concerns. Accordingly, we conclude that Ratliff’s claims concerning the 1991 surgery are barred by limitations. C [6] [7] The Open Courts provision of the Texas Constitution28 does not permit a well-established common-law cause of action to be restricted by statute in III a way that is unreasonable or arbitrary in view of the statute’s purpose.29 In Jennings v. Burgess, we held that We now turn to three additional claims Ratliff makes: that the limitations provisions of section 10.01 do not violate Earle was negligent in performing the 1993 surgery, that the Open Courts guarantee if a plaintiff has had a Earle failed to disclose the risks attendant to that surgery, reasonable opportunity to discover the alleged wrong and and that statements Earle made violated the DTPA. bring suit before the limitations period expired. 30 We assumed in Jennings, without expressly explaining our reasons, that the plaintiff must raise a fact issue concerning the applicability of the provision to avoid a summary judgment on limitations.31 We believe that the A same rule should apply for asserting the Open Courts [8] guarantee in response to a motion for summary judgment Ratliff claims that Earle was negligent in performing on limitations as is applied in asserting fraudulent the 1993 surgery. In his affidavit supporting his motion concealment. for summary judgment, Earle states that he did not breach the applicable standard of care in performing the 1993 Ratliff’s affidavit establishes that he did not learn of the surgery. “Both in 1991 and 1993,” Earle’s affidavit states, risks of pedicle implantation until he saw a television “use of Steffe pedicle screws and plates met the standard broadcast about a month after his second surgery. of care.” Mooney’s affidavit states with respect to the However, the only evidence Ratliff has offered to show 1993 surgery: “Considering the degree of spinal that he could not have learned of the risks sooner consists instability created by Mr. Ratliff’s first surgery, and the of statements in Mooney’s affidavit that he was justified fact that Mr. Ratliff’s first set of AcroMed screws and in trusting Earle and the following statement: “From the plates resulted in hardware failure with loosening, the information that I have reviewed, there is no evidence that insertion of another device was medically unwarranted.” Mr. Ratliff could have known that his care and continued The district court struck this statement in Mooney’s affidavit as being conclusory, but we do not regard it as © 2015 Thomson Reuters. 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any more conclusory than statements in Earle’s affidavit. presumption Ratliff could and did rebut with Mooney’s Mooney’s statement raises the question whether, given affidavit stating that Earle should have disclosed certain Ratliff’s failure to improve following the first surgical risks beyond those enumerated by the Texas Medical implantation and his increased spinal instability, a second Disclosure Panel.41 The court relied on another court of implant was warranted. Earle’s affidavit and other appeals’ decision, Penick v. Christensen,42 which summary judgment evidence do not address this issue. concluded that a physician who makes disclosure for a List A procedure or treatment as prescribed by the Panel [9] Summary judgment can be granted on the affidavit of can nevertheless be negligent for failing to make an interested expert witness, like Earle, but the affidavit additional disclosures. Penick based its conclusion on must not be conclusory.32 An expert’s simple ipse dixit is section 6.07(a)(1) of the Act, which provides that insufficient to establish a matter; rather, the expert must disclosure made as prescribed for a List A procedure explain the basis of his statements to link his conclusions “shall create a rebuttable presumption that the to the facts.33 Earle’s affidavit does not explain why requirements of [the Act] have been complied with”. 43 implantation of additional devices in the 1993 surgery was medically warranted, given Ratliff’s history; the We do not agree that the Act permits a finding that a affidavit states only the conclusion that Earle met the physician who made disclosures as prescribed by the applicable standard of care. Panel was negligent for not disclosing other risks and hazards associated with the recommended procedure. Accordingly, the court of appeals did not err in reversing Were it so, the Act would afford a physician who summary judgment on this claim. complied with Panel directives no protection from liability for nondisclosure if there were any evidence that additional disclosure was appropriate. The entire purpose of the Panel decisions would thus be thwarted. Section 6.07(a)(1) is not entirely clear, but we agree with the B weight of scholarly authority that, read in the light of the [10] other provisions of the Act, it permits the presumption of Ratliff contends that Earle was negligent in failing to proper disclosure to be rebutted only by showing the *892 disclose the risks attendant to the 1993 surgery. This invalidity of the consent form, such as by proof that the claim *891 is governed by the Medical Liability and patient’s signature was forged, or that the patient lacked Insurance Improvement Act.34 The Act creates the Texas capacity to sign.44 Medical Disclosure Panel and gives it the responsibility to “identify and make a thorough examination of all medical Ratliff produced no evidence that his written consent was treatments and surgical procedures ... to determine which ineffective due to incapacity or was otherwise invalid, and ... do and do not require disclosure of the risks and thus he has raised no issue that Earle was negligent in hazards to the patient”.35 The Panel prepares and publishes disclosing the risks of surgery. Accordingly, we hold that two lists, one (List A) of treatments and procedures for the court of appeals erred in reversing summary judgment which the risks must be disclosed, and the other (List B) on this claim, and we disapprove Penick to the extent its of treatments and procedures for which disclosure of risks reasoning is contrary to ours. is not required.36 For all List A procedures, the Panel must also state what risks must be disclosed and the form in which disclosure must be made.37 The Act then provides that a physician who discloses to a patient the risks of a List A procedure in the substance and form prescribed by C the Panel “shall be considered to have complied” with the [12] Act,38 and that a patient’s consent to a List A procedure Finally, Ratliff claims that Earle misrepresented and obtained as prescribed “shall be considered effective”. 39 It concealed the truth concerning both the 1991 and the is undisputed that both of Ratliff’s surgeries were List A 1993 surgeries in violation of the DTPA. Section 12.01(a) procedures.40 Earle’s affidavit states in effect that he of the Medical Liability and Insurance Improvement Act disclosed all risks identified by the Texas Medical precludes application of the DTPA to physicians “with Disclosure Panel in the manner required, and Ratliff’s respect to claims for damages for personal injury or death signed consent form shows that Earle is correct. resulting, or alleged to have resulted, from negligence”. 45 Ratliff and Earle both argue whether Ratliff’s DTPA [11] The court of appeals held, however, that Earle’s claims are thus precluded. affidavit only raised a rebuttable presumption that he was not negligent in disclosing the risks of surgery to Ratliff, a

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In Sorokolit v. Rhodes, we held that section 12.01(a) does the DTPA when the plaintiff’s complaint was that her not preclude a DTPA claim that is not based on a deceased husband had been negligently treated.52 physician’s breach of the accepted standard of medical care.46 We added, however, that “[c]laims that a physician The representations Ratliff alleges Earle made are all or health care provider was negligent may not be recast as related to Earle’s treatment of him and the surgeries DTPA actions” to avoid the provisions of the Act. 47 We performed, as in Gormley, Walden, and MacGregor, and held that a physician’s promise that his patient’s do not resemble the representations that were possible appearance following cosmetic surgery would be identical DTPA violations in Sorokolit. The gist of all of Ratliff’s to a specific photograph was actionable under the claims, variously phrased and labeled, is that Earle did not DTPA.48 hold to the applicable standard of care. Such a claim sounds only in negligence. Summary judgment on these In Gormley v. Stover, however, we held that a dentist’s claims was therefore proper. statements that he could perform surgery on the plaintiff with no problems, that a skin graft would work as well as a bone graft, that after surgery the plaintiff could wear dentures with no problems, and that her pain and numbness would subside following surgery were not ***** actionable under the DTPA.49 All these statements, we concluded, related to whether the dentist’s choice of Accordingly, the court of appeals’ judgment is affirmed in surgical procedure and his performance of it met the part and reversed in part, and the case is remanded to the applicable standard of care.50 In Walden v. Jeffery, we district court for further proceedings. held that a dentist’s failure to provide the plaintiff dentures that fit was a negligence claim, not a DTPA claim.51 More recently, we held in MacGregor Medical Parallel Citations Ass’n v. Campbell *893 that a clinic’s statements in its HMO literature that it provided qualified personnel and 42 Tex. Sup. Ct. J. 919 resources, the best services possible, and emergency service twenty-four hours a day were not actionable under

Footnotes 1 TEX. CONST. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”). 2 961 S.W.2d 591.

3 TEX. BUS. & COM.CODE §§ 17.41–.63.

4 176 F.R.D. 158, 165–166 (E.D.Pa.1997).

5 TEX.REV.CIV. STAT. ANN. art. 4590i, §§ 6.05–.06 (Vernon Supp.1999).

6 961 S.W.2d 591.

7 Id. at 597.

8 Id.

9 42 TEX. SUP.CT. J. 335 (Feb. 4, 1999).

10 “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.03(4) (Vernon Supp.1999).

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11 Id. § 10.01.

12 Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998) (per curiam); accord Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995) (per curiam); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). 13 907 S.W.2d 448 (Tex.1995) (per curiam).

14 Id. at 449–450.

15 See Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Desiga v. Scheffey, 874 S.W.2d 244, 248–249 (Tex.App.—Houston [14th Dist.] 1994, no writ); Shook v. Herman, 759 S.W.2d 743, 745–746 (Tex.App.—Dallas 1988, writ denied). Cf. Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (holding that limitations began to run from the last date of treatment rather than the date of the last of two eye surgeries because plaintiff alleged negligence in the follow-up treatment). 16 833 S.W.2d 103, 105 (Tex.1992).

17 Id. at 108.

18 883 S.W.2d 156 (Tex.1993).

19 Id. at 158–159.

20 TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp.1999).

21 661 S.W.2d 907, 909 (Tex.1983).

22 Id.; Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974).

23 138 Tex. 145, 157 S.W.2d 878 (1942).

24 Id. at 879.

25 See Borderlon, 661 S.W.2d at 908 (holding that a physician has a duty to disclose a negligent act or the fact that an injury has occurred). 26 Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (per curiam); American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994). 27 See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986).

28 TEX. CONST. art. I, § 13.

29 See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

30 917 S.W.2d 790, 794 (Tex.1996).

31 See id.

32 Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam).

33 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726–727 (Tex.1998) (quoting General Elec. Co. v. Joiner, 522 U.S.

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136, 146, 118 S.Ct. 512, 523, 139 L.Ed.2d 508 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711–712 (Tex.1997); Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202–204 (Tex.1980)). 34 TEX REV. CIV. STAT. ANN. art. 4590i, §§ 6.01–.08 (Vernon Supp.1999).

35 Id. § 6.04(a).

36 Id. § 6.04(b), (c).

37 Id. § 6.04(b).

38 Id. § 6.05.

39 Id. § 6.06.

40 The Texas Medical Disclosure Panel lists “spine operation” as a procedure requiring written disclosure, and defines the procedure as including “laminectomy, decompression, fusion, internal fixation or procedures for nerve root or spinal cord compression”. 25 TEX. ADMIN. CODE § 601.2(m)(3) (1998). The Panel has identified six risks which must be disclosed prior to a spine operation: “pain, numbness or clumsiness”, “impaired muscle function”, “incontinence or impotence”, “unstable spine”, “recurrence or continuation of the condition that required the operation”, and “injury to major blood vessels”. Id. 41 961 S.W.2d at 597.

42 912 S.W.2d 276, 285–286 (Tex.App.—Houston [14th Dist.] 1995, writ denied).

43 TEX.REV.CIV. STAT. ANN. art. 4590i, § 6.07(a)(1) (Vernon Supp.1999).

44 See Jim M. Perdue, The Law of Texas Medical Malpractice, Chapter X: Informed Consent, 22 HOUS. L. REV. 399, 426 n. 190 (1985) (observing “[t]here appears to be no avenue for disputing th[e] presumption” of sections 6.05 and 6.06, that written disclosure of the panel’s enumerated risks is sufficient for List A procedures); Frank W. Elliott, The Impact of the Texas Medical Liability and Insurance Improvement Act on Informed Consent Recovery in Medical Malpractice Litigation, 10 TEX. TECH L. REV . 381, 387 (1979)(“[I]t appears that evidence that could rebut the presumption of disclosure under Section 6.07(a)(1) is evidence that would attack the validity of the consent.”); COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—MALPRACTICE, PREMISES & PRODUCTS PJC 51.15, cmt. (1997) (“If the physician has obtained the patient’s signature on a consent form ... containing the risks enumerated on list A, the only means by which the patient may recover for failure to obtain informed consent is to prove the invalidity of the form and that the risks had not otherwise been disclosed to him.”); see also Crundwell v. Becker, 981 S.W.2d 880 (Tex.App.—Houston [1 st Dist.] 1998, pet. denied) (holding that the trial court’s directed verdict on an informed consent claim was not error when the patient who signed the consent form offered no evidence of incapacity). 45 TEX.REV.CIV. STAT. ANN. art. 4590i, § 12.01(a) (Vernon Supp.1999).

46 889 S.W.2d 239, 242 (Tex.1994).

47 Id.

48 Id. at 242–243.

49 907 S.W.2d 448, 449–450 (Tex.1995) (per curiam).

50 Id. at 450.

51 907 S.W.2d 446, 447–448 (Tex.1995) (per curiam).

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52 985 S.W.2d 38, 40–41 (Tex.1998) (per curiam).

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[7] patient was not entitled to extension of time to cure deficient expert reports that effectively amounted to “no 365 S.W.3d 507 Court of Appeals of Texas, report” as to physician. Austin.

Frederick FUNG, M.D.; Mindy Minicucci, R.N.; Reversed in part, vacated in part, rendered in part, and Ana Urukalo, D.P.M.; The Austin Diagnostic Clinic remanded. Association d/b/a Austin Diagnostic Clinic; The Austin Diagnostic Clinic, P.A.; Austin Diagnostic Attorneys and Law Firms Clinic, P.A.; et al., Appellants, v. *512 J. Mark Holbrook, W. Lance Cawthon, Janice M. Kathryn FISCHER and Myron Fischer, Appellees. Byington, Davis & Wilkerson, P.C., Christanne Carlton, Mark T. Beaman, Maria Cantu Hexsel, Germer, Gertz, No. 03–10–00298–CV. | April 13, 2012. Beaman & Brown, L.L.P., Emily J. Davenport, Kemp Smith, L.L.C., Austin, TX, for appellant. Synopsis Background: Patient brought action against podiatrist, Paul S. Jacobs, The Jacobs Law Firm, Tanya N. Garrison, primary care physician, nurse and clinics, alleging Eleven Greenway, Houston, TX, Mark R. Mueller, negligence relating to the alleged misdiagnosis and Mueller Law Firm, Austin, TX, for appellee. improper treatment of a cancerous tumor on patient’s foot. The Probate Court No. 1, Travis County, Guy S. Before Justices PURYEAR, PEMBERTON and ROSE. Herman, J., overruled defendants’ objections to expert reports and denied their motions to dismiss. Defendants appealed.

OPINION Holdings: The Court of Appeals, Jeff Rose, J., held that: JEFF ROSE, Justice. [1] objection by a defendant is not required as a predicate Frederick Fung, M.D.; Mindy Minicucci, R.N.; Ana for seeking dismissal of health care liability action when Urukalo, D.P.M.; The Austin Diagnostic Clinic the claimant has failed to serve a timely expert report; Association d/b/a Austin Diagnostic Clinic; The Austin [2] Diagnostic Clinic, P.A.; Austin Diagnostic Clinic, P.A.; twenty-one-day deadline for objecting to the The Austin Diagnostic Clinic, P.A. d/b/a Austin sufficiency of expert reports was not triggered until the Diagnostic Clinic Ambulatory Surgery Center; and The expert reports were served on defendants; Austin Diagnostic Clinic Ambulatory Surgery Center [3] bring this interlocutory appeal of the probate court’s service of expert report addressing podiatrist’s conduct orders concerning expert reports that Kathryn Fischer and did not trigger clinic’s duty to object to sufficiency of Myron Fischer provided in support of their health care expert report to support direct-liability claim against liability claims. clinic; [4] Seven orders are challenged in this appeal: three orders physician had no duty to object to expert report served overruling Minicucci’s, Urukalo’s, and the ADC on other defendants before physician became a party to appellants’ objections to appellees’ expert reports, three the action; *513 corresponding orders denying these appellants’ [5] motions to dismiss, and one order overruling Fung’s report addressing podiatrist’s standard of care objections and denying his motion to dismiss. For the constituted “no report” as to referring physician; reasons that follow, as to Minicucci, Urukalo, and the ADC appellants, we reverse the three orders overruling [6] speculative and contradictory report concerning their respective objections, vacate the three orders on their physician’s negligence did not constitute a “good faith respective motions to dismiss, and remand this case for effort” at compliance with expert report requirement; and consideration of those motions on the merits; and as to Fung, we reverse the order overruling his objections and

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denying his motion to dismiss, render judgment for him, ADC parties, now adding an allegation of malice, and (2) and remand this case for determination of his reasonable Frederick Fung, M.D., alleging negligence, gross attorney’s fees and costs under the civil practice and negligence, and malice as a treating physician *514 and as remedies code. a member of ADC’s board of directors. The Fischers’ fourth amended petition named as defendants: (1) Sara LeViseur and (2) Mindy Minicucci, R.N., alleging the negligence of each as an “employee, agent, or servant of ADC’s Ambulatory Surgery Center”; and (3) David BACKGROUND Joseph, M.D., alleging negligence, gross negligence, and malice as chairman of ADC’s board of directors and of In 2007, the Fischers filed suit against Urukalo, a the governing body of ADC’s Ambulatory Surgery podiatrist, for her alleged negligence in misdiagnosing Center. The same petition also included allegations that: and improperly treating a cancerous tumor on Kathryn (1) Fung was negligent as a member of the governing Fischer’s foot. The Fischers’ original petition also alleged body of ADC’s Ambulatory “Surgical” Center; (2) that the Austin Diagnostic Clinic d/b/a Austin Diagnostic Urukalo was negligent as a shareholder of ADC and Clinic (ADC) was vicariously liable for Urukalo’s acts committed the offenses of aggravated assault, battery, and omissions and independently negligent for its lack of securing execution of a document by deception, policies and procedures on appropriate testing for certain fraudulently concealing a writing, and injury to an elderly types of cysts. In an effort to comply with the individual; and (3) ADC was vicariously liable for the requirements applicable to “health care liability claims” negligence, malice, gross negligence, assault, and battery under chapter 74 of the civil practice and remedies code, committed by its employees, agents, servants, and vice the Fischers in 2007 provided expert reports from Brad J. principals and ADC was not a health care provider that Bachmann, a podiatrist, and Mark E. Johnson, M.D. practiced medicine; or alternatively, ADC was a health These reports explicitly addressed only Urukalo’s acts or care institution and was directly responsible for the omissions and did not mention any acts or omissions by negligence, gross negligence, and breach of fiduciary ADC.1 Urukalo and ADC did not challenge the adequacy duties of its “board of directors, medical executive of these two reports, and this appeal does not concern the committees, governing body, officers, and directors.” Fischers’ health care liability claim that asserts Urukalo’s negligence and shifts liability for her conduct to ADC as In September 2009, almost two years after filing their pled in the Fischers’ original petition in 2007. However, original petition, the Fischers filed their fifth amended Urukalo and ADC challenged the reports that the Fischers petition. The Fischers’ fifth amended petition: (1) provided in 2009, which are the focus of this appeal. nonsuited by omission The Austin Diagnostic Imaging Center, LeViseur, and Joseph; (2) added allegations that Urukalo and ADC remained the only defendants in the Urukalo committed the offenses of tampering with a case for eighteen months until the Fischers filed a series government record, tampering with physical evidence, of five amended petitions between April and July of 2009. and fraudulent destruction, removal, or concealment of a Their first amended petition added allegations of gross writing; (3) added allegations that ADC was directly negligence and malice against Urukalo and an allegation liable for ratifying Urukalo’s negligence, gross of gross negligence against ADC. Their second amended negligence, malice, and fraud; (4) added allegations that petition added as defendants a host of other ADC-related ADC was vicariously liable for “Urukalo’s aggravated entities—“The Austin Diagnostic Clinic, P.A.; Austin assault, battery, forgery, and any other conduct defined by Diagnostic Clinic, P.A.; The Austin Diagnostic Imaging the Texas Penal Code”; and (5) added allegations that Center; and The Austin Diagnostic Clinic Ambulatory ADC was vicariously liable for its employees’ conspiracy Surgery Center”—in addition to the previously named to commit fraud, negligence, gross negligence, and Austin Diagnostic Clinic d/b/a Austin Diagnostic Clinic, malice. Along with this petition, the Fischers provided a alleging twenty-two categories of negligence and gross supplemental expert report from Johnson and a new negligence against the ADC defendants collectively expert report from Joseph Varon, M.D. concerning hiring, training, and supervision of “employees, agents, servants, and vice-principals”; The Fischers’ new expert reports from Johnson and Varon authorization/ratification of the employees’, agents’, triggered objections and motions to dismiss from servants’, and vice-principals’ negligence; and overall Minicucci, Urukalo, the ADC entities collectively, and operation of the clinic. The Fischers’ third amended Fung. While these objections and motions to dismiss were petition added as defendants: (1) “The Austin Diagnostic pending, the Fischers obtained an order transferring their Clinic, P.A. d/b/a Austin Diagnostic Clinic Ambulatory suit from district court to probate court. See Tex.Rev.Civ. Surgery Center,” in addition to the previously named Stat. Ann. § 608 (West Supp. 2011) (allowing transfer to

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probate court of district court action that is related to opinions. A health care liability claimant must serve each guardianship proceeding pending in probate court).2 The party or the party’s attorney with an expert’s report and probate court held a hearing, took the matters under the expert’s curriculum vitae within 120 days of filing the advisement, and eventually signed orders overruling all of original petition asserting a health care liability claim the appellants’ objections—concluding specifically in against that defendant. Carroll v. Humsi, 342 S.W.3d 693, three of the orders that Minicucci’s, Urukalo’s, and 696–97 (Tex.App.-Austin 2011, no pet.); Hayes v. ADC’s objections to the reports were untimely—and Carroll, 314 S.W.3d 494, 501 (Tex.App.-Austin 2010, no denying all of the appellants’ motions to dismiss. The pet.); see Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) court’s seven orders concerning Johnson’s supplemental (stating statutory requirements). report and Varon’s report are the subject of this appeal. [2] An “expert report” is a written report by an expert that The appellants’ issues have some overlap but are not provides a fair summary of the expert’s opinions as of the identical. All appellants argue that the Fischers did not report’s date regarding: (1) applicable standards of care; serve a timely *515 report addressing the “health care (2) the manner in which the physician or health care liability claim or claims” pled against them in 2009. All provider’s care failed to meet the standards; and (3) the appellants argue that they filed timely objections to the causal relationship between that failure and the injury, reports and thus did not waive their corresponding rights harm, or damages claimed. Tex. Civ. Prac. & Rem.Code to seek dismissal. Fung contends that the reports from the Ann. § 74.351(r)(6). The report is intended to inform the Fischers’ experts neither implicated him nor complied defendant of the specific conduct that the claimant has with chapter 74’s requirements. Our analysis of these called into question and provide a basis for the trial court issues begins with an overview of the statutory framework to conclude that the claims have merit. Bowie Mem’l governing health care liability claims set forth in chapter Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing 74. American Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). [3] [4] A defendant may file a motion to dismiss if the expert report is not timely served. Tex. Civ. Prac. & APPLICABLE LAW Rem.Code Ann. § 74.351(b). If a defendant is not served with an expert report within the 120–day period, the trial Chapter 74 framework court must enter an order on the motion of the physician [1] Health care liability claims in Texas are governed by or health care provider that dismisses the claim with the Texas Medical Liability Act in chapter 74 of the civil prejudice and awards fees and costs to the physician or practice and remedies code. See Tex. Civ. Prac. & health care provider. Id.; see Lewis v. Funderburk, 253 Rem.Code Ann. §§ 74.001–.507 (West 2011 & West S.W.3d 204, 207 (Tex.2008). Reports that are timely Supp. 2011). The code defines a “health care liability served but substantively deficient may be eligible for a claim” as thirty-day extension to cure the deficiencies when the report: (1) contains the opinion of an individual with a cause of action against a expertise that the claim has merit and (2) implicates the physician or health care provider defendant’s conduct. See Scoresby v. Santillan, 346 for treatment, lack of treatment, or S.W.3d 546, 556 (Tex.2011) (citing Ogletree v. other claimed departure from Matthews, 262 S.W.3d 316, 317, 321 (Tex.2007) (noting accepted standards of medical care that report that did not mention doctor’s *516 name but or health care, or safety or was directed solely to one doctor’s care “implicated [that professional or administrative doctor’s] conduct”)); see also Tex. Civ. Prac. & services directly related to health Rem.Code Ann. § 74.351(r)(6) (defining expert report). care, which proximately results in injury to or death of a claimant, [5] A defendant whose conduct is implicated in a report whether the claimant’s claim or may file objections to the report’s sufficiency. Tex. Civ. cause of action sounds in tort or Prac. & Rem.Code Ann. § 74.351(a). Objections must be contract. filed and served within twenty-one days after the date that the defendant is served with the report implicating that Id. § 74.001(a)(13). A primary feature of chapter 74’s defendant’s conduct, otherwise the objections to the framework is a series of requirements that health care report’s sufficiency are waived. Id. The deadline for filing liability claimants support their claims, early in a case, objections to a report’s sufficiency is not triggered until: with expert testimony and reports summarizing the expert (1) the physician or health care provider becomes a

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“party”—meaning that the claimant obtains service of information contained in the four corners of the report in process, waiver of service, or an appearance from the reaching its ruling on a motion to dismiss. Palacios, 46 physician or health care provider named in the petition— S.W.3d at 878. Further, a trial court cannot grant a motion and (2) the claimant serves the expert report on that party to dismiss that is based on untimely objections to the or that party’s attorney. See Humsi, 342 S.W.3d at 698– sufficiency of a report because a defendant’s untimely 99; see also Tex. Civ. Prac. & Rem.Code Ann. § objections are waived. See *517 Ogletree, 262 S.W.3d at 74.351(a) (stating statutory requirements); Key v. Muse, 322 (affirming denial of motion to dismiss because 352 S.W.3d 857, 863–64 (Tex.App.-Dallas 2011, no pet.); hospital failed to raise timely objections to reports’ Dingler v. Tucker, 301 S.W.3d 761, 767 (Tex.App.-Fort sufficiency and waived such objections); Bakhtari v. Worth 2009, pet. denied); Yilmaz v. McGregor, 265 Estate of Dumas, 317 S.W.3d 486, 493 (Tex.App.-Dallas S.W.3d 631, 638 (Tex.App.-Houston [1st Dist.] 2008, pet. 2010, no pet.) (noting that trial court could not grant denied). motion to dismiss based on untimely objections); see also Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). [6] [7] By contrast, there is no deadline in chapter 74 for a defendant to object to an expert report as untimely, or even a requirement that a defendant object at all as a predicate for seeking dismissal when the claimant has Jurisdiction [12] failed to serve a report within 120 days. Poland v. As a preliminary matter, we address and reject the Grigore, 249 S.W.3d 607, 616 (Tex.App.-Houston [1st Fischers’ impromptu assertion made at oral argument that, Dist.] 2008, no pet.); see Victoria Gardens of Frisco v. for various reasons, this Court lacks jurisdiction to Walrath, 257 S.W.3d 284, 290 (Tex.App.-Dallas 2008, consider this interlocutory appeal.3 The Fischers first pet. denied) (holding that twenty-one-day deadline applies argue that there is no statutory authorization for this only to objections about timely served report’s interlocutory appeal. However, the plain language of the “sufficiency,” not to objections about report’s statute authorizing interlocutory appeals permits a untimeliness); see also Methodist Charlton Med. Ctr. v. defendant to appeal from an order that “denies all or part Steele, 274 S.W.3d 47, 51 (Tex.App.-Dallas 2008, pet. of the relief sought by a motion under Section 74.351(b),” denied) (holding that complaint in motion to dismiss the section that addresses motions to dismiss a claim for a about failure to timely serve reports was not subject to plaintiff’s failure to serve a timely expert report.4 Tex. twenty-one-day deadline for objections to report’s Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (West Supp. sufficiency). This means that there is no duty to object to 2011). The orders appealed here denied the relief— an expert report that was never served, that was served dismissal and fees—sought in appellants’ motions to untimely, or that was so deficient as to constitute no dismiss, which were based upon the Fischers’ failure to report at all within the 120–day period. See Funderburk, serve timely and adequate expert reports. See id. § 253 S.W.3d at 207 (explaining that “an expert report has 74.351(b); Funderburk, 253 S.W.3d at 207 (concluding not been served” when “an inadequate report has been that doctor’s motion seeking dismissal and fees for report served”); Bogar v. Esparza, 257 S.W.3d 354, 361 that was considered “not served” because of its (Tex.App.-Austin 2008, no pet.) (noting that complaints inadequacy was section 74.351(b) motion and was about absent report, timely but deficient report, or timely immediately appealable); Bogar, 257 S.W.3d at 361 report that fails to implicate defendant’s conduct and is (noting Funderburk’s clarification that availability of effectively “no report” are same for purpose of interlocutory appeal is not dependent on whether motion’s interlocutory review). grounds relate to absent report, timely but deficient report, or timely report that fails to implicate defendant’s conduct and is effectively “no report”); cf. Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 186, 189 Standard of review (Tex.App.-Austin 2005, no pet.) (concluding that [8] [9] [10] [11] We review a trial court’s rulings on motions to defendants’ motion was not brought under section dismiss health care liability claims for an abuse of 74.351(b) because it was filed before expiration of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 claimant’s 120–day period for serving expert reports and (Tex.2006); Palacios, 46 S.W.3d at 877. A trial court sought only to strike expert report). Thus, this Court has abuses its discretion by rendering an arbitrary and jurisdiction over this interlocutory appeal pursuant to unreasonable decision lacking support in the facts or section 51.014(a)(9) of the civil practice and remedies circumstances of the case or by acting in an arbitrary or code. unreasonable manner without reference to guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 The Fischers next argue that this Court lacks jurisdiction (Tex.2011) (plurality op.). The trial court is limited to the because there is no actual controversy between the

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parties, alleging that “[a]ppellants admit that sufficient served with the reports. Minicucci’s objections began reports were timely filed and served as to Mrs. Fischer’s with the assertion that the Fischers had not served her health care liability claim in this case.” The record with process and explained that she filed the objections to disproves this argument. As noted previously, all the sufficiency of the reports out of an abundance of appellants argue that the Fischers failed to serve timely caution. Minicucci’s motion to dismiss reiterated her expert reports; Minicucci, Urukalo, and ADC further objections to the sufficiency of the reports and pointed out argue that the trial court erred in overruling their that she was not served with the Fischers’ expert reports objections to the reports as untimely; and Fung contends within the statutory 120–day period. that deficiencies in the reports rendered them the equivalent of “no report” as to him. As such, the Fischers’ The probate court overruled Minicucci’s objections, argument that we lack jurisdiction because there is no “find[ing] that the objections were untimely under Texas actual controversy between the parties lacks merit. Civil Practice & Remedies Code § 74.351(a).” The same day, the court signed an order denying her motion to The Fischers also argue—based on governmental- dismiss. immunity cases—that this *518 Court lacks jurisdiction [13] because appellants waived the protection of section In her first issue, Minicucci contends that because she 74.351 by failing to plead that specific section of the was not served with the expert reports as required by statute. The Fischers’ cited cases are inapposite. See City chapter 74, her twenty-one-day deadline was not triggered of Dallas v. Moreau, 718 S.W.2d 776, 778 (Tex.App.- and her objections to the sufficiency and lack of service of Corpus Christi 1986, writ ref’d n.r.e.) (noting that City the expert reports could not have been untimely. raised defense of governmental immunity from suit in its Minicucci also contends that the probate court’s pretrial and post-verdict motions); City of Brownsville v. erroneous ruling that all of her objections were untimely Pena, 716 S.W.2d 677, 680–81 (Tex.App.-Corpus Christi under section 74.351(a) necessarily resulted in the denial 1986, no writ) (concluding that City never pled its of her motion to dismiss addressing the merits of those governmental immunity from liability). Similar to the objections. See *519 Rosemond v. Al–Lahiq, 331 S.W.3d claimant in Sedeno v. Mijares, 333 S.W.3d 815, 823 764, 767 (Tex.2011) (“The issue of timeliness is a (Tex.App.-Houston [1st Dist.] 2010, no pet.), the Fischers threshold issue in the expert report framework the cite no authority supporting their argument that the Legislature enacted.”). We note that when ruling on dismissal provision in chapter 74 is an affirmative defense Minicucci’s motion to dismiss, the probate court could that must be pled. See id. Like the court in Sedeno, we not have considered objections that were untimely have found no authority suggesting that a defendant is because untimely objections would have been waived. See “required to file any additional pleadings to invoke its Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). right to file a motion to dismiss pursuant to section 74.351.” Id. Further, the record reflects that appellants’ In response to this issue, the Fischers concede that answers pled the protection of chapter 74 and that the “Minicucci’s objections were timely,” and we agree and Fischers acknowledged appellants as health care hold accordingly. See Humsi, 342 S.W.3d at 702–03 providers.5 Accordingly, the Fischers’ argument that we (concluding that report provided to attorney for named lack jurisdiction because appellants waived the protection defendant who had not been made “a party” to lawsuit of chapter 74 is unpersuasive. Having determined that was not served on “a party or the party’s attorney” within there is no jurisdictional bar to this appeal, we now meaning of chapter 74); Dingler, 301 S.W.3d at 767 consider appellants’ issues. (concluding that service of report on counsel who ultimately came to represent doctor failed to comply with chapter 74 because doctor was nonparty when report was served); University of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872–73 (Tex.App.-Houston ANALYSIS [1st Dist.] 2007, pet. denied) (concluding that nonparty health science center’s receipt of courtesy copy of expert Nurse Minicucci’s objections and motion to dismiss report from someone other than claimants did not Minicucci, a nurse who provided preoperative and establish service of report complying with chapter 74). recovery care to Kathryn Fischer and witnessed her But they contend, without citation to the record, that “her signature on the surgical consent form, was named in the motion to dismiss was not denied on that basis” so the Fischers’ fourth amended petition but was not served with error “is of no consequence.” We disagree. it. After counsel for Urukalo and ADC received Johnson’s supplemental report and Varon’s report, Minicucci The order overruling Minicucci’s objections specifies that decided to file her objections despite not having been the probate court found the objections untimely. Although

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we hold here that the objections were timely, and thus dismiss was based on her previously filed objections, should have been considered by the probate court when which if untimely, were waived and would not have been ruling on Minicucci’s corresponding motion to dismiss, it considered toward her motion to dismiss. would have been improper for the court to consider the merits of the objections after ruling that they were The Fishers served Varon’s and Johnson’s reports on untimely. See Ogletree, 262 S.W.3d at 322 (holding that September 25, 2009, and September 29, 2009, because hospital failed to object within statutory twenty- respectively. Urukalo filed and served her objections to one day period, it waived its objections, and trial court Varon’s report and to Johnson’s supplemental report on correctly denied hospital’s motion to dismiss); Bakhtari, October 16, 2009. The Fischers’ response filed with the 317 S.W.3d at 493 (concluding that trial court could not probate court acknowleged that Urukalo filed timely grant motion to dismiss based on objections that were objections to the 2009 reports from Varon and Johnson. 6 untimely); see also Tex. Civ. Prac. & Rem.Code Ann. § We agree that Urukalo’s October 16 objections were 74.351(a). Thus, although the order denying Minicucci’s timely because they were filed and served “not later than motion to dismiss states that the court reviewed the the 21st day after the date [she] was served” with the pleadings, responses, and arguments of counsel, we must September 25 and September 29 reports. See Tex. Civ. assume that the probate court did not consider the Prac. & Rem.Code Ann. § 74.351(a). substance of Minicucci’s objections, which it found untimely. Nevertheless, the order overruling Urukalo’s objections specifies that the probate court found the objections Having determined that Minicucci’s objections were untimely. Although we hold here that the objections were timely under section 74.351(a) of the civil practice and timely, and thus should have been considered by the remedies code, we conclude that the probate court abused probate court when ruling on Urukalo’s corresponding its discretion in finding to the contrary and that this error motion to dismiss, it would have been improper for the caused the objections not to be considered in Minicucci’s court to consider the merits of the objections after ruling corresponding motion to dismiss. As such, we sustain that they were untimely. See Ogletree, 262 S.W.3d at 322 Minicucci’s first issue, reverse the probate court’s order (holding that because hospital failed to object within overruling Minicucci’s objections as untimely, vacate the statutory twenty-one day period, it waived its objections, order denying her motion to dismiss, and remand this case and trial court correctly denied hospital’s motion to so that the court may consider the merits of Minicucci’s dismiss); Bakhtari, 317 S.W.3d at 493 (concluding that objections and her motion to dismiss. trial court could not grant motion to dismiss based on objections that were untimely); see also Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Thus, although the order denying Urukalo’s motion to dismiss states that the court Podiatrist Urukalo’s objections and motion to dismiss reviewed the pleadings, responses, and arguments of [14] Urukalo is the podiatrist who treated the mass on counsel, we must assume that it did not consider the Kathryn Fischer’s foot. Like Nurse Minicucci, Urukalo substance of Urukalo’s objections, which it found contends that the trial court abused its discretion by untimely. overruling her objections to the 2009 expert reports as untimely and that this error necessarily resulted in the Having determined that Urukalo’s objections were timely denial of her motion to dismiss. under section 74.351(a) of the civil practice and remedies code, we conclude that the probate court abused its Urukalo objected to the 2009 reports from Varon and discretion in finding to the contrary, and that this error Johnson as substantively deficient and also untimely caused the objections not to be considered in Urukalo’s because they were served more than 120 days after the corresponding motion to dismiss. As such, we sustain November 2, 2007 filing of the Fischers’ petition Urukalo’s first issue, reverse the probate court’s order asserting a “health care liability *520 claim” against her. overruling Urukalo’s objections as untimely, vacate the See Humsi, 342 S.W.3d at 696–97; Hayes, 314 S.W.3d at order denying her motion to dismiss, and remand this case 501; see also Tex. Civ. Prac. & Rem.Code Ann. § so that the court may consider the merits of Urukalo’s 74.351(a). Urukalo filed a corresponding motion to objections and her motion to dismiss. dismiss directed to the Fischers’ allegations of gross negligence, malice, fraud, aggravated assault, battery, forgery, securing execution of a document by deception, and fraudulent destruction, removal, or concealment of a *521 ADC’s objections and motion to dismiss writing, all of which were pled for the first time in 2009. According to the Fischers’ pleadings, the various ADC Similar to Minicucci’s motion, Urukalo’s motion to entities and their “employees, agents, and servants”

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provided treatment to Kathryn Fischer. ADC filed for a “health care liability claim,” which chapter 74 objections and a corresponding motion to dismiss defines, in relevant part, as a cause of action for collectively on behalf of all the ADC entities named in the treatment, lack of treatment, or other claimed departure Fischers’ suit. The probate court’s orders overruling these *522 from accepted standards of medical care or health objections as untimely and denying the motion to dismiss care, or safety or professional or administrative services do not distinguish between the original ADC defendant directly related to health care, proximately resulting in a and the four ADC entities added as defendants in 2009. claimant’s injury. Id. § 74.001(a)(13). A “cause of action” We will calculate statutory deadlines for objections is defined as “a fact or facts entitling one to institute and applicable to the original ADC defendant and the four maintain an action, which must be alleged and proved in ADC entities based on the timing of their addition as order to obtain relief” and as a “group of operative facts defendants to the Fischers’ lawsuit; however, given that giving rise to one or more bases for suing; a factual the ADC appellants were treated collectively in the orders situation that entitles one person to obtain a remedy in that are the subject of this appeal, we reserve for the court from another person.” In re Jorden, 249 S.W.3d probate court, and express no opinion on, the propriety of 416, 421 (Tex.2008) (orig. proceeding). Consequently, the Fischers’ addition of these four ADC entities as the Legislature’s use of “cause of action” signals that we defendants or the merits of whether those additional are to look at the operative facts to define a particular entities should be treated distinctly from the original ADC cause of action, rather than the particular legal theories defendant. put forth based on those facts. Cardwell v. McDonald, 356 S.W.3d 646, 654 (Tex.App.-Austin 2011, no pet.). [18] [19] Here, the facts required to establish the defendant’s 1. Original ADC defendant’s objections to lack of vicarious liability, i.e., the acts of Urukalo and Urukalo’s report and late reports relationship to ADC, differ from the facts required to The ADC appellants’ first issue, phrased somewhat establish the original ADC defendant’s direct liability, differently than Minicucci’s and Urukalo’s issues, i.e., ADC’s provision of particular policies and similarly contends that the original ADC defendant’s procedures. Under the doctrine of respondeat superior, an objections to the 2009 expert reports were timely and that employer or principal may be vicariously liable for the the original ADC defendant’s lack of objection to the tortious acts of an employee or agent acting within the 2007 reports did not waive its right to seek dismissal as to scope of the employment or agency, even though the the Fischers’ health care liability claim asserting the principal or employer has not personally committed a original ADC defendant’s direct liability, which was not wrong. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42 mentioned by any expert report within the 120–day (Tex.2002) (citing Baptist Mem’l Hosp. Sys. v. Sampson, deadline. The ADC appellants argue that because the 969 S.W.2d 945, 947 (Tex.1998)). If a party’s alleged 2007 reports did not address the Fischers’ direct-liability health care liability is purely vicarious, a report that claim against the original ADC defendant alleging a lack adequately implicates the actions of that party’s agents or of adequate policies and procedures, the cause of action employees is sufficient. Gardner v. U.S. Imaging, Inc., based on those facts in the Fischers’ 2007 original petition 274 S.W.3d 669, 671–72 (Tex.2008). was not supported by a timely report and as such, the original ADC defendant had no duty to object. 7 The In Gardner, the Texas Supreme Court stated its qualified Fischers contend that because the original ADC defendant agreement with the claimants’ contention that a report as did not object to the 2007 reports, it waived all of its to a doctor who performed a lumbar epidural procedure objections, including its objections to the 2009 reports on a claimant could also suffice to support the alleged and its corresponding right to seek dismissal. Apparently liability of the owner and operator of the facility where persuaded by this argument, the probate court overruled the claimant’s procedure was performed because the ADC’s collective objections to the 2009 reports, facility owner’s liability was purely vicarious. Id. (“To the specifically “find[ing] that the objections were untimely extent that the Gardners allege that SADI is liable only under Texas Civil Practice & Remedies Code § vicariously for Dr. Keszler’s actions, the expert 74.351(a).”8 requirement is fulfilled as to SADI if the report is adequate as to Dr. Keszler.”); see University of Tex. Sw. [15] [16] [17] A health care liability claimant must serve each Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas party or the party’s attorney with an expert report within 2006, no pet.). The converse implication of Gardner is 120 days of filing the petition asserting a health care that if a party’s alleged health care liability is not “purely liability claim against that defendant. Humsi, 342 S.W.3d vicarious” but direct, then a report that implicates only the at 696–97; Hayes, 314 S.W.3d at 501; see also Tex. Civ. actions of that party’s agents or employees is insufficient Prac. & Rem.Code Ann. § 74.351(a). Reports are required to that extent. Cf. Gardner, 274 S.W.3d at 671–72.

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S.W.3d 264, 270–71 (Tex.App.-Corpus Christi 2009, pet. In University of Texas Southwestern Medical Center v. denied) (holding that trial court abused its discretion by Dale—a decision the supreme court cited in Gardner— denying defendant’s objection to expert report as it related the court contrasted the expert testimony required when to claimant’s allegation of direct liability because report the defendant’s alleged health care liability is merely failed to address how defendant’s direct conduct, such as vicarious with the testimony required to support an implementation of procedures, policies, or rules, deviated allegation of health care liability based on the defendant’s from applicable standard of care); Obstetrical & direct negligence. 188 S.W.3d at 879. The Dale claimants Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, did not assert that UT Southwestern was itself negligent 103 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) but rather, its liability was predicated entirely on its (noting that if plaintiff asserts health care liability claim resident physicians’ actions. Id. UT Southwestern argued alleging professional association’s direct liability, then that it was not served with a report because it was not plaintiff is required to serve report specifically addressing named in any report. Id. at 878. After observing that the association’s conduct, rather than just conduct of expert report functions to (1) inform the defendant of the physicians for which it is vicariously liable); Steele, 274 specific conduct the plaintiff has called into question, and S.W.3d at 51 (noting that assertion of hospital’s vicarious (2) provide the trial court with a basis from which to liability for nurse’s negligence was distinct from conclude the claims have merit, the court reasoned that complaints about hospital’s negligent hiring, supervision, “what is relevant for purposes of the expert report *523 is training, and retention, which concerned hospital’s direct that it specifically identify the person whose conduct the negligence and required expert report); Center for plaintiff is calling into question and show how that Neurological Disorders, P.A. v. George, 261 S.W.3d 285, person’s conduct constituted negligence.” Id. at 878–79. 294 (Tex.App.-Fort Worth 2008, pet. denied) (concluding The court specified that because the Dales “were not that expert’s report addressing only professional alleging that UT Southwestern was directly negligent,” association’s vicarious liability was deficient because it the expert report was not required to mention UT made no attempt to address any of claimants’ direct- Southwestern by name and would not have explained how liability allegations); see also Hendrick Med. Ctr. v. UT Southwestern “breached the standard of care and how Miller, No. 11–11–00141–CV, 2012 WL 314062, at *3–4, that breach caused or contributed to the cause of injury.” 2012 Tex.App. LEXIS 683, at *10–14 (Tex.App.- Id. at 879. Eastland Jan. 26, 2012, no pet.) (mem. op.) (concluding that health care defendant’s direct liability and vicarious [20] Here, unlike Gardner and Dale, the alleged health care liability are separate claims requiring independent liability of the original ADC defendant was not “purely evaluation and holding that “procedures and protocols” vicarious.” The Fischers’ original petition alleged not claim alleging medical center’s direct liability should only that liability for Urukalo’s acts and omissions should have been dismissed for lack of expert report); contra be passed through to ADC—which need not have Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 693 committed a wrong to have her liability imputed to it— (Tex.App.-Houston [1st Dist.] 2011, pet. filed) (op. on but that ADC itself was negligent based on a separate set reh’g) (allowing suit *524 against nurse staffing agency to of operative facts: its lack of adequate policies and proceed without expert testimony addressing agency’s procedures for the appropriate testing of certain types of direct liability when claimant had served report cysts. The facts that the Fischers alleged to impose direct addressing agency’s vicarious liability arising from same liability constitute a separate health care liability claim group of operative facts in report). Based on the facts in requiring expert support. this record, we conclude that the Fischers pled two health care liability claims—one asserting purely vicarious The requisite expert testimony on the original ADC liability to shift responsibility for Urukalo’s conduct to defendant’s standard of care, the breach of such standard ADC (the vicarious-liability claim) and another asserting of care, and the causal relationship between any such that ADC itself was directly negligent because of its breach and an injury could not have been fulfilled with alleged failure to put forth adequate policies and testimony in a report addressing only Urukalo’s conduct procedures (the direct-liability claim)—each requiring as a podiatrist and wholly failing to identify how the supportive expert testimony.9 original ADC defendant’s conduct amounted to negligence. See Tex. Civ. Prac. & Rem.Code Ann. § To be timely in this case, a report addressing the Fischers’ 74.351(r)(6) (defining “expert report”); Petty v. Churner, direct-liability claim against the original ADC defendant 310 S.W.3d 131, 138 (Tex.App.-Dallas 2010, no pet.) should have been served by March 3, 2008—120 days (affirming trial court’s dismissal of health care liability from the filing of the Fischers’ original petition claim alleging direct liability that was unaddressed in containing the cause of action for an alleged lack of expert’s report); RGV Healthcare Assocs. v. Estevis, 294 adequate policies and procedures. See Tex. Civ. Prac. &

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[22] Rem.Code Ann. § 74.351(a).10 The only reports served on Further, the 2009 reports served in support of the the original ADC defendant before March 3, 2008, were Fischers’ direct-liability claims against the original ADC the 2007 reports from Bachmann and Johnson, neither of defendant were untimely. Because belated service of an which makes any reference to ADC’s direct liability, its expert report is an incurable procedural defect, an alleged lack of adequate policies and procedures, the objection to a late-served report is not subject to the applicable standard of care for ADC, any breach of that twenty-one-day deadline. See Grigore, 249 S.W.3d at standard, or any causal relationship between an alleged 615–16 (noting that procedure for objections in section breach and an injury. In fact, both Bachmann’s and 74.351(c) is for those that are not based on belated service Johnson’s 2007 reports limit their opinions to “the care “because once a report is late, it remains late: no ‘cure’ rendered only by Ana Urukalo, D.P.M.” Subsequent exists to render an untimely report timely”); see Walrath, reports from Varon and Johnson purporting to address the 257 S.W.3d at 290 (holding that twenty-one-day deadline Fischers’ direct-liability claim against the original ADC applies only to objections about report’s “sufficiency” or defendant were not served until September 2009, more substance, not to objections about report’s untimeliness); than 1 ½ years after the Fischers’ 120–day deadline see also Steele, 274 S.W.3d at 51 (holding that complaint expired. about failure to serve timely expert reports raised in motion to dismiss was not subject to twenty-one-day [21] The 2007 reports failed to address the Fischers’ direct- deadline for objections to expert report’s sufficiency). liability claim. A defendant’s duty to object to the Thus, the objection that the 2009 reports purporting to sufficiency of an expert report and the corollary twenty- address the Fischers’ direct-liability claim against the one-day deadline is triggered by the service of a report original ADC defendant were served too late—more than implicating the defendant’s complained-of conduct. See 1 ½ years after the filing of the 2007 original petition id. Here, the Fischers’ 2007 petition pled the original alleging ADC’s direct liability—was not subject to the ADC defendant’s liability for its own negligence due to twenty-one-day deadline in section 74.351(a), and raising an alleged lack of adequate policies and procedures, but that objection in 2009 did not result in any waiver. the Fischers served no report within 120 days *525 supporting that health care liability claim. They had to At the hearing before the probate court, the Fischers serve a report—not just a petition—supporting their 2007 acknowledged initially that they did not timely serve the direct-liability claim.11 See Churner, 310 S.W.3d at 138 original ADC defendant with the 2009 reports from Varon (affirming trial court’s dismissal of health care liability and Johnson. But they also argued that the 2009 reports claim alleging direct liability that was unaddressed in were timely for their “current allegations” against the expert’s report); see also Hendrick Med. Ctr., 2012 WL original ADC defendant because they nonsuited the 314062, at *4, 2012 Tex.App. LEXIS 683, at *13–14 “generically [pled] policies and procedures” claim in their (dismissing “direct liability claim regarding procedures 2007 original petition *526 and replaced it with “specific and protocols” because no expert report addressed it). allegations” in their 2009 fifth amended petition. On appeal, they further argue that as to the original ADC No duty to object to the sufficiency of the reports arose defendant, the 2009 reports were “supplemental.” until the Fischers served a report addressing their direct- [23] liability claim against the original ADC defendant. See We reject the notions that the Fischers’ nonsuit and Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (requiring repleading restarted their expired deadline for serving an objections to report’s sufficiency within twenty-one days expert report addressing their health care liability claim from each defendant health care provider “whose conduct asserting the original ADC defendant’s direct liability and is implicated in a report”); McCoy, 283 S.W.3d at 103 that their “supplemental” report may provide essential (noting that if plaintiff asserts health care liability claim information for that health care liability claim that was alleging professional association’s direct liability, then omitted from the previously served expert reports. See plaintiff is required to serve report specifically addressing Richburg v. Wolf, 48 S.W.3d 375, 378 (Tex.App.- association’s conduct, rather than just conduct of Eastland 2001, pet. denied) (holding, under predecessor physicians for which it is vicariously liable, and if statute, that unless trial court grants extension of time, plaintiff serves no such report, association “could not supplemental report cannot supply critical information have waived any complaints about [report’s] omitted from original report—such as standard of care, sufficiency”). Because the original ADC defendant had no breach, and causation—after statutory period has expired, duty to object in 2007—when the Fischers served no even if original report was timely filed). report supporting their direct—liability claim against the original ADC defendant—the absence of a sufficiency The original ADC defendant faced no deadline for objection in 2007 did not result in any waiver. objecting to the lack of a report in 2007 and to the 2009 reports’ late service; thus its objections could not have

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been untimely. The original ADC defendant did have a Having determined that the ADC defendants’ objections deadline for objecting to the substance of the 2009 were timely under section 74.351(a) of the civil practice reports, and those objections were timely filed and served. and remedies code, we conclude that the probate court The record reflects that the Fischers served the original abused its discretion in finding to the contrary and that ADC defendant with Varon’s report on September 25, this error caused the objections not to be considered in the 2009 and Johnson’s supplemental report on September ADC defendants’ corresponding motion to dismiss. As 29, 2009, and ADC collectively filed and served its such, we sustain the ADC appellants’ first issue, reverse objections on October 16, 2009, which was “not later than the probate court’s order overruling the ADC defendants’ the 21st day after the date [the original ADC defendant] objections as untimely, vacate the order denying the ADC was served” with both of those reports. See Tex. Civ. defendants’ motion to dismiss, and remand this case so Prac. & Rem.Code Ann. § 74.351(a). that the court may consider the merits of the ADC defendants’ objections and motion to dismiss.

2. Additional ADC entities’ objections to 2009 reports After the Fischers missed their 120–day deadline for Dr. Fung’s objections and motion to dismiss were serving a report supporting their direct-liability claim based on the merits against the original ADC defendant, they filed a series of Dr. Fung is an internal medicine physician who referred amended petitions. On May 29, 2009, the Fischers filed a Kathryn Fischer to Urukalo and issued Fischer’s second amended petition that for the first time pled health presurgical clearance. The probate court signed an order care liability claims alleging the direct and vicarious denying Fung’s motion to dismiss and overruling his liability of four additional ADC entities that they added as objections to the 2009 expert reports but did not state that defendants. Assuming without deciding that the addition Fung’s objections were untimely; thus, Fung is differently of these four ADC entities was appropriate, the 120–day situated in that the denial of his motion to dismiss was deadline for serving expert reports addressing health care based on the merits of the arguments presented to the liability claims against them was September 28, 2009. See probate court. id.; Tex.R. Civ. P. 4. Varon’s report, filed and served on September 25, 2009, was timely as to these four The Fischers named Fung for the first time in their June defendants, but Johnson’s supplemental report, filed and 17, 2009 third amended petition, alleging his negligence, served on September 29, 2009, was not. On October 16, malice, and gross negligence. Fung states, and the 2009, within twenty-one days of being served with both Fischers do not deny, that he was added to their suit after of these reports, ADC collectively filed and served its they took his deposition and after two years of discovery timely objections. between the other parties, including electronic medical record documentation and five other physicians’ Nevertheless, the order overruling the ADC defendants’ depositions. The Fischers served Fung with Varon’s objections specifies that the probate court found the report on September 24, 2009, and with Johnson’s objections untimely. Although we hold here that the supplemental report on September 25, 2009. Fung timely objections were timely, and thus should have been filed his objections to the reports and a motion to dismiss considered by the trial court when ruling on the ADC on October 15, 2009. Fung was not a party to the defendants’ corresponding motion to dismiss, it would Fischers’ suit in 2007 and was not served with or have been improper for the trial court to consider the mentioned by the reports from Bachmann and Johnson merits of the objections after ruling that they were accompanying the Fischers’ original petition. Instead, as untimely. See Ogletree, 262 S.W.3d at 322 (holding that previously noted, both of those reports limit their opinions because hospital waived its untimely objections, trial to “the care rendered only by Ana Urukalo, D.P.M.” court correctly denied hospital’s motion to dismiss); Bakhtari, 317 S.W.3d at 493 (concluding that trial court could not grant motion to dismiss based on objections that were untimely); see also Tex. Civ. Prac. & Rem.Code Fischers’ arguments that Fung’s objections were Ann. § 74.351(a). Thus, although the order denying the untimely lack merit [24] ADC defendants’ motion to dismiss states that the court The Fischers argued to the probate court that although reviewed the pleadings, responses, *527 and arguments of Fung was not a party in 2007 and was not served with counsel, we must assume that it did not consider the Bachmann’s report and Johnson’s initial report, Fung substance of the ADC defendants’ objections, which it failed to object to the 2007 reports and therefore waived found untimely. any objection to considering them in conjunction with their 2009 reports.12 Within his first issue, Fung argues

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that his objections to the 2009 reports were timely and Bogar, 257 S.W.3d at 360–61. In his first issue, Fung that, as to him, the 2007 reports are not before the court argues that Johnson’s supplemental report does not and cannot be considered in combination with the 2009 implicate him and that Varon’s report requires the court to reports because the earlier reports do not implicate him make inferences about Fung’s negligence that are and he was not served with them. Cf. Tex. Civ. Prac. & contrary to Varon’s own opinions in the report. We Rem.Code Ann. § 74.351(i) (allowing expert reports to be consider each of these arguments in turn. considered together in determining whether adequate expert report has been served).

The record reflects that the reports from Bachmann and 1. Johnson’s supplemental report [25] [26] Johnson were filed and served with the Fischers’ original Chapter 74 defines an “expert report” as a written petition on November 2, 2007, long before *528 Fung report by an expert that provides a fair summary of the was a party to the suit.13 As previously discussed, a expert’s opinions as of the date of the report regarding: deadline for filing objections to the substance of a report (1) applicable standards of care; (2) the manner in which is not triggered until the physician or health care provider the care rendered by the physician or health care provider becomes a “party” and the claimant serves the expert failed to meet the standards; and (3) the causal report on that party or that party’s attorney. See, e.g., relationship between that failure and the injury, harm, or Humsi, 342 S.W.3d at 698–99; see also Tex. Civ. Prac. & damages claimed. See Tex. Civ. Prac. & Rem.Code Ann. Rem.Code Ann. § 74.351(a). Fung was not a party to the § 74.351(r)(6). A report that omits one or more of these Fischers’ suit when they served the reports from required elements, or states the expert’s opinion as mere Bachmann and Johnson in 2007, and the Fischers never conclusions without supporting facts, is insufficient to served Fung with those reports; thus, he had no duty to constitute a “good faith effort” at compliance with chapter object to them. See Tex. Civ. Prac. & Rem.Code Ann. § 74. See Samlowski, 332 S.W.3d at 409–10; Palacios, 46 74.351(b) (authorizing dismissal of claim if after 120–day S.W.3d at 879; see also Tex. Civ. Prac. & Rem.Code period “an expert report has not been served”); Humsi, Ann. § 74.351(l ) (requiring court to grant motion 342 S.W.3d at 698 (noting that Legislature would not challenging adequacy of expert report if report does not have imposed deadline for objections to report’s *529 represent objective good-faith effort to comply with sufficiency on nonparty who “would be outside the statutory definition of expert report); Scoresby, 346 court’s jurisdiction and have no duty to participate in the S.W.3d at 556 (requiring report to address all statutory action”). As such, no “waiver” resulted from then- elements and prohibiting omissions in report from being nonparty Fung’s lack of objection in 2007 to the reports supplied by inference); Jernigan, 195 S.W.3d at 93–94 with which he was never served, and the 2007 reports (affirming trial court’s dismissal of suit because expert should not be considered in combination with the 2009 reports omitted any allegation about how doctor breached reports to meet the Fischers’ burden as to Fung. standard of care and causation); Bowie Mem’l Hosp., 79 S.W.3d at 53 (concluding that report must contain all Further, the Fischers served Fung with Varon’s report on required information within its four corners). “[A] September 24, 2009, and Johnson’s supplemental report document qualifies as an expert report if it contains a on September 25, 2009. Fung filed his objections to both statement of opinion by an individual with expertise on October 15, 2009, which was “not later than the 21st indicating that the claim asserted by the plaintiff against day after the date [Fung] was served” with the reports. the defendant has merit.” Scoresby, 346 S.W.3d at 549. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Given [27] the facts in this record, Fung’s objections to the 2009 A defendant may be “implicated” in a report even if reports were timely. the defendant is not specifically named. See Ogletree, 262 S.W.3d at 317, 321 (concluding that report directed solely to urologist’s care implicated defendant urologist although it did not mention him by name); Bogar, 257 Sufficiency of Johnson’s and Varon’s 2009 reports as S.W.3d at 367; see Tex. Civ. Prac. & Rem.Code Ann. § to Fung 74.351(a) (setting deadline for defendants “whose Unlike its rulings as to the other appellants, the probate conduct is implicated in a report” to file objections). In court reached the substance of Fung’s objections and such cases, the report may be deficient, but it would not motion to dismiss, which asserted that the Fischers’s be considered the equivalent of “no report.” Scoresby, 346 health care liability claim against him should be dismissed S.W.3d at 556; Bogar, 257 S.W.3d at 367. On the other because Varon’s and Johnson’s 2009 reports failed to hand, a report that omits all of the statutorily required comply with the statutory requirements of chapter 74. See elements is not merely deficient, but rather amounts to no id. § 74.351(b); Funderburk, 253 S.W.3d at 207–08; report at all. Rivenes v. Holden, 257 S.W.3d 332, 338–39

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(Tex.App.-Houston [14th Dist.] 2008, pet. denied); 2. Varon’s report Garcia v. Marichalar, 185 S.W.3d 70, 71–72, 74 Fung contends that Varon’s report failed to comply with (Tex.App.-San Antonio 2005, no pet.); see Ogletree, 262 chapter 74’s required discussions of breach of the S.W.3d at 320 (citing dismissal of claim and ineligibility standard of care and causation because its conclusions are for extension to cure report in Marichalar as example of not linked to facts in the report and it requires the court to “seemingly harsh result[ ]” following from service of infer Fung’s negligence. Fung argues specifically that report that mentioned other defendant doctors but not Varon’s report is conditional and speculative because: (1) defendant Dr. Garcia). it relies on an assumption that Fung was aware of Kathryn Fischer’s MRI results and failed to act; (2) it fails to make [28] Johnson’s supplemental report begins by identifying a causal link between an allegedly breached standard of Urukalo as the subject of his opinions: care and an injury by requiring an inference that if Fung had access to Urukalo’s chart notes, then Kathryn The purpose of this supplemental Fischer’s outcome would have been different; and (3) it is report is to provide a fair summary not supported by facts within the four corners of the of my opinions at this time as to the report. The Fischers respond that Varon’s report “clearly health care provided by Ana identif[ies]” how Fung’s conduct fell below the standard Urukalo, DPM to Mrs. Kathryn of care, and that the “primary breach exists if Fung was Fischer in 2006 and 2007. aware of Mrs. Fischer[’s] MRI and did nothing with this differential diagnosis.” He proceeds to address only the standard of care owed by “physicians that treat soft tissue masses in the lower [29] [30] The causal connection in medical malpractice suits extremities[,] including foot surgeons and podiatrists, must be made “beyond the point of conjecture” and “must such as Dr. Urukalo,” not the standard of care for a show more than a possibility” to warrant submission of referring primary care physician like Fung. His the issue to a jury. Lenger v. Physician’s Gen. Hosp., 455 discussions about the “breaches of standards of care” and S.W.2d 703, 706 (Tex.1970); see Bowie Mem’l Hosp., 79 “causation” are directed solely at Urukalo’s conduct. S.W.3d at 53. Reports providing a “description of only a Further, although Fung’s medical records are identified possibility of causation do[ ] not constitute a good-faith among the materials that Johnson reviewed in the effort to comply with the statute.” Walgreen Co. v. preparation of his report, Johnson expressed no criticism Hieger, 243 S.W.3d 183, 186–87 (Tex.App.-Houston of Fung whatsoever. In fact, the Fischers’ response below [14th Dist.] 2007, pet. denied) (holding that expert report argued that this report was intended to support their claim stating claimant had symptoms “consistent with” known against Urukalo. side effects of medication was insufficient to demonstrate causal link); see McMenemy v. Holden, No. 14–07– Because the four corners of Johnson’s supplemental 00365–CV, 2007 WL 4842452, at *5–6, 2007 Tex.App. report fail to provide any information about Fung’s LEXIS 8830, at *15–16 (Tex.App.-Houston [14th Dist.] standard of care as a primary care physician, any alleged Nov. 1, 2007, pet. denied) (mem. op.) (concluding that breach of the standard of care by Fung, and any causal expert’s report expressing uncertainty about possibility of link between an alleged breach by Fung and Kathryn positive outcome for patient failed to make causal link Fischer’s injury, the report does not implicate Fung. See indicating plaintiffs’ claim had merit); Estate of Allen v. Rivenes, 257 S.W.3d at 338–39 (holding that trial court Polly Ryon Hosp. Auth., No. 01–04–00151–CV, 2005 WL abused its discretion by denying doctor’s motion to 497291, at *5–6, 2005 Tex.App. LEXIS 1691, at *16–17 dismiss because expert’s report opined only about (Tex.App.-Houston [1st Dist.] Mar. 3, 2005, no pet.) negligence of another doctor, hospital, and “hospital (mem. op.) (holding that expert’s report failed to meet staff” generally); Marichalar, 185 S.W.3d at 71–72, 74 statutory causation requirement by opining merely that (holding that expert report that focused on acts by other breach of standard of care “could have contributed” to defendants and did not mention Dr. Garcia at all was “no decline in claimant’s condition). report” as to him and thus, *530 trial court erred in [31] granting claimant extension of time to cure that Further, a court may not fill in gaps in a report by nonexistent report). We conclude that Johnson’s drawing inferences or guessing what the expert meant or supplemental report was not merely deficient in failing to intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, comply with chapter 74 but was the equivalent of “no 279 (Tex.App.-Austin 2007, no pet.). Instead, the report report” as to Fung. must include the required information within its four corners. Bowie Mem’l Hosp., 79 S.W.3d at 53.

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[32] Reliable expert opinion should also be free from • adequately inform the patient of “differential internal inconsistencies. See Wilson v. Shanti, 333 S.W.3d diagnoses known,” planned treatment, perceptions 909, 914 (Tex.App.-Houston [1st Dist.] 2011, pet. denied) and expectations of the surgical procedure; and (citing General Motors Corp. v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005)). In Wilson, the court affirmed • confirm and ensure that the planned procedure is the exclusion of an expert’s medical causation testimony “appropriate for the differential diagnosis,” that it is because of the inconsistency between the expert’s initial scheduled to be performed by appropriate and report, the claimant’s deposition testimony, and the qualified personnel, and that it is scheduled to be unexplained conclusion in the expert’s supplemental performed at an appropriate and qualified facility. report attempting to reconcile the facts in his initial report with the claimant’s testimony. Id. at 914–15. Because All of these opinions hinge on the patient information *531 of the unexplained inconsistency underlying the “available” to Fung and the “differential diagnoses expert’s conclusion, the court affirmed the trial court’s known” to him. finding that the expert failed to provide a reliable foundation for his causation opinion. Id. at 915. Yet Varon’s report affirmatively negates Fung’s having seen the information that is identified as key to his [33] Varon’s report contains significant internal liability. For instance, when Varon reviews the facts and inconsistencies and is ambivalent about Fung’s liability. explains the function of the electronic record system and Specifically, although Varon’s criticisms of Fung are the timing of the physicians’ entries, he states that Fung wholly dependent on whether Fung had access to Kathryn would not have seen Urukalo’s April 10th chart entry Fischer’s MRI and differential diagnosis at a certain point because she signed it almost ten hours after Fung signed in her treatment, the factual background section of his report: Varon’s report conveys his uncertainty about whether Fung ever saw a chart entry with the MRI result and Dr. Fung completed the physical examination of Mrs. whether Fung knew about the differential diagnosis of Fischer and cleared Mrs. Fischer for surgery for a cancer. ganglion cyst and signed his report at 1:20 pm on April 16, 2007.... However, after Dr. Fung completed his Varon’s report says that Fung’s negligence depends on report and signed the history and physical form, later Fung: that night at 11:12pm on April 16, Dr. Urukalo signed the chart document she supposedly dictated on April (1) having the MRI test available to him by about 10. 1:00 p.m. on April 16, 2007 (when Varon states that Fung completed his examination and report); It is my understanding that the electronic record system used at ADC allowed additions and changes to patient (2) knowing of the MRI result by about 1:00 p.m. on chart documents and all other health care providers are April 16, 2007; or unable to view the chart document until after the document is signed. Then only the final document is (3) having Dr. Urukalo’s April 10th chart available, not prior to any additions or changes. information about the MRI and differential diagnosis by about 1:00 p.m. on April 16, 2007; and (Emphases added.) In fact, Varon is unable to state that anyone other than Urukalo *532 knew about her April (4) knowing that the differential diagnosis included 10th chart entry or the differential diagnosis of neoplasm neoplasm, tumor, or sarcoma by about 1:00 p.m. on or sarcoma: April 16, 2007. Dr. Urukalo’s April 10, 2007 chart entry had cc: Dr. Varon further opined that the standard of care requires Fung and Dr. Pytkowski. It is unclear whether Dr. Fung internal medicine physicians like Fung to: and Dr. Pytkowski received and/or reviewed the April 10, 2007 medical document before the surgery on April • review information that is “pertinent” and 20, 2007; if so, when they received and/or reviewed the “available” about the patient’s current medical and medical document and what was on the medical differential diagnoses, history, medications, physical document when received and/or reviewed.... Both Dr. examination, test studies and results, and evaluate Fung and Dr. Pytkowski testified they never saw or planned procedure[s]; received a copy of Dr. Urukalo’s April 10, 2007 chart document, were not aware of the MRI, were not aware • timely refer the patient for appropriate of the MRI report of Dr. Chen, and not aware o[f] Dr. consultations; Urukalo’s differential diagnosis of neoplasm or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Fung v. Fischer, 365 S.W.3d 507 (2012)

sarcoma before the surgery on Mrs. Fischer on April not seen Urukalo’s April 10th chart entry, may be 20, 2007. disregarded in favor of assumptions that are unsupported by the report’s four corners—namely, that the MRI test .... was available to Fung, that Fung was aware of the MRI test result, that Urukalo’s chart document was available to There are several handwritten records that state a Fung, or that Fung was aware of the differential diagnosis preoperative and postoperative diagnosis of a ganglion including a neoplasm, tumor, or sarcoma *533 before cyst that includes a possible neoplasm, but it is unclear Kathryn Fischer’s surgery—to create a causal link when and by whom this information was written in the between Fung’s conduct and Fischer’s injuries. medical chart. Still other sections of Varon’s report discount these Further inconsistencies are present in the report’s conditional assumptions by reiterating that Fung lacked discussion of “CAUSATION,” which states that between access to, and knowledge of, Urukalo’s April 10th chart “February 17, 2006 through December 21, 2006, ADC note and the possible cancer diagnosis. Most notably, one employees, agents, and servants, including Dr. Urukalo, of Varon’s criticisms of Urukalo is that she “intentionally knew or should have known that Mrs. Fischer’s soft tissue concealed” the very information that Varon speculates mass was probably not a ganglion cyst, and required Fung’s liability would hinge on: additional diagnostic testing.” However, that time frame was after Fung’s referral to Urukalo, when Fung was not Dr. Urukalo referred Mrs. Fischer to Dr. Fung for a treating Kathryn Fischer. preoperative examination and history and physical preoperative to an excision of a ganglion cyst. Dr. Ultimately, in the “NEGLIGENCE, GROSS Urukalo intentionally concealed the MRI findings NEGLIGENCE, MALICE AND FRAUD OF DR [.] [suggesting cancer] from Dr. Fung, who completed his FUNG,” section of his report, Varon qualifies his specific examination and report at approximately 1 pm on April criticism of Fung by stating that Fung: 16, 2007. However, Dr. Urukalo did not sign her chart note until over 10 hours after Dr. Fung completed his was not negligent unless prior to completing his examination and signed his reports. Dr. Urukalo knew examination and finalizing his report on April 16, 2007, that her chart note of April 10, 2007, regarding the MRI the MRI test was available to Dr. Fung, Dr. Fung was findings and Mrs. Fischer’s “differential diagnosis aware of Mrs. Fischer’s MRI test result, or if Dr. includes ... sarcoma” was not accessible to Dr. Fung in Urukalo’s April 10, 2007 return visit chart document Mrs. Fischer’s electronic medical chart until after she with information regarding the MRI result and her signed the note at 11:12 pm on April 16, 2007. differential diagnosis was available to him, and if he unaware [sic] that Mrs. Fischer’s differential diagnosis .... included a neoplasm, tumor, or sarcoma prior to the surgery on April 20, 2007. [I]t is questionable as to when and who else was aware of the preoperative diagnosis of a neoplasm and However, if prior to completing his examination and sarcoma and when and how this critical information finalizing his report on April 16, 2007, the MRI test was available to ADC employees involved in the April was available to Dr. Fung, Dr. Fung was aware of Mrs. 20, 2007 surgery, other than Dr. Urukalo. Fischer’s MRI test result, or if Dr. Urukalo’s April 10, 2007 return visit chart document with information .... regarding the MRI result and her differential diagnosis was available to him, or if he unaware [sic] that Mrs. The medical records confirm that prior to the procedure Fischer’s differential diagnosis included a neoplasm, on April 20, 2007, Mrs. Fischer had a differential tumor, or sarcoma prior to the surgery on April 20, diagnosis of a malignant sarcoma, but it is unclear 2007, then it is my opinion based on my education, which health care providers other than Dr. Urukalo experience, training, review of the material listed, and were aware of this critical and important information. in reasonable medical probability, that FREDERICK FUNG, M.D.’s negligence, gross negligence, malice, (Emphases added.) Varon’s report underscores the and conspiracy to fraud [sic] was a proximate cause of significance of Fung’s lack of access to the MRI findings Mrs. Fischer’s injuries and damages.... and preoperative diagnosis by including the “pertinent finding” that Urukalo “conceal[ed] from everyone (Emphases added.) This section suggests that the involved with the surgery that Mrs. Fischer’s mass could preceding facts Varon identified in his report, including be a sarcoma.” the chronology supporting Fung’s testimony that he had © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Fung v. Fischer, 365 S.W.3d 507 (2012)

In summary, the information on which Varon would notes were in a floor chart that was available for the hinge Fung’s negligence is affirmatively negated by defendant doctors to review: Varon’s other opinions in this report that: [T]he alleged breach of the • Dr. Urukalo intentionally concealed the MRI standard of care ... w[as] contingent findings suggesting cancer from Dr. Fung; and on Dr. Varon’s assumption that the [emergency department] chart and • Dr. Urukalo’s chart note of April 10, 2007 with the Dr. Skeete’s progress notes were in MRI findings and differential diagnosis including the floor chart.... By relying on sarcoma was not accessible to Dr. Fung. assumptions instead of facts, the report provides no basis for the trial Further, as to Varon’s allegation that Fung was negligent court to conclude that the claims if he knew about the differential diagnosis of cancer by against [the defendant doctors] the time he completed the exam and his report on April have merit. 16, 2007, nothing in the four corners of Varon’s report opines that Fung knew, by the time he completed the Id. (citing Bowie Mem’l Hosp., 79 S.W.3d at 52; Murphy exam and his report, of a differential diagnosis including v. Mendoza, 234 S.W.3d 23, 28 (Tex.App.-El Paso 2007, neoplasm, tumor, or sarcoma. no pet.) (holding that expert’s opinion as to breach of the standard of care was speculative and conclusory as it was Varon’s opinions here resemble those from discredited unsupported by facts in report’s four corners and relied on reports that failed to show more than a possibility of a assumption); Hutchinson v. Montemayor, 144 S.W.3d causal link between the defendant’s conduct and the 614, 618 (Tex.App.-San Antonio 2004, no pet.) claimant’s injury. See Bowie Mem’l Hosp., 79 S.W.3d at (concluding that report failed to show more than 53; Hieger, 243 S.W.3d at 187; Christus Spohn Health possibility and speculation as to causation)). Sys. v. Trammell, 13–09–00199–CV, 2009 WL 2462899, at *2–3, 2009 Tex.App. LEXIS 6329, at *7–8 (Tex.App.- We likewise conclude here that Varon’s opinions Corpus Christi Aug. 13, 2009, no pet.) (mem. op.) regarding Fung’s negligence, breach of the standard of (concluding that expert’s causation opinion “merely care, and causation—which depend on unsupported suggest[ing] that if an assumption can be made, then ‘a assumptions as to what Fung knew and when he knew causal link can be made’ ” was “wholly inadequate” and it—are conditional and speculative at best, and are “nothing more than conjecture”); see also *534 Alfieri v. affirmatively contradicted and negated by Varon’s own United States, No. SA–08–CV–277–XR, 2009 WL opinions at worst. As such, they did not provide a basis 4059164, at *3–4, 2009 U.S. Dist. LEXIS 108470, at *9– for the court to conclude that the Fischers’ health care 11 & n. 4 (W.D.Tex. Nov. 20, 2009) (order) (ruling that liability claim against Fung has merit. Cf. Bowie Mem’l expert’s conclusion that “defendant would be further Hosp., 79 S.W.3d at 52. negligent if in fact” certain conditions were met was speculative) (emphases added). Because Varon’s report Under the facts and circumstances of this case, neither acknowledges that Fung would not have had information Varon’s report nor Johnson’s supplemental report that Urukalo “intentionally concealed” from him, and constituted a “good faith effort” at compliance with because nothing in this report indicates Fung’s awareness chapter 74. We therefore sustain Fung’s first issue. We of a differential diagnosis including neoplasm, tumor, or must now determine whether this case should be sarcoma by 1:00 p.m. on April 16, 2007, any opinion by remanded for the probate court to consider granting the Varon that Fung did have such information turns wholly statutory thirty-day extension of time to cure the on assumption that is unsupported, if not disputed, by the deficiencies in these reports. See Tex. Civ. Prac. & facts in Varon’s report. Rem.Code Ann. § 74.351(c). The San Antonio Court of Appeals addressed a similar problem with assumptions in one of Varon’s previous reports. See Cooper v. Arizpe, No. 04–07–00734, 2008 Eligibility for extension of time to cure WL 940490, at *3–4, 2008 Tex.App. LEXIS 2506, at *9– In his second issue, Fung argues that, despite two years of 10 (Tex.App.-San Antonio Apr. 9, 2008, pet. denied) discovery and numerous depositions, the deficiencies in (mem. op.). In an opinion that issued before the Fischers the expert reports that the Fischers served in support of served Varon’s report on Fung, the court concluded that their health care liability claim against him were Varon’s report was deficient because of its assumptions incurable—Johnson’s report fails to implicate Fung that an emergency department chart and a certain doctor’s whatsoever, and Varon’s report lacks a factual basis

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within its four corners, to the extent that it expresses any have been eligible for extension to cure because it did not opinions regarding Fung. Because neither could be cured demonstrate on its face that it was incurable). Thus, courts without an *535 entirely new report, Fung contends that should grant the statutory extension of time when a they are ineligible for the statutory thirty-day extension of deficient expert report can be cured readily and deny the time to cure their deficiencies. The Fischers argue that extension when it cannot. Samlowski, 332 S.W.3d at 411. remand is appropriate because the reports that they served The court in Scoresby determined that the expert’s report are not the equivalent of “no report,” and if Varon’s was deficient in at least one respect because it omitted the report lacks a link between his stated conclusions and standard of care and contained only an implication that Fung’s conduct, addressing that deficiency would be “an the standard was inconsistent with the surgeons’ conduct. easy fix.” Scoresby, 346 S.W.3d at 557. However, the court concluded that the expert’s report was eligible for the [34] [35] Service of a report that is deficient, but not so statutory extension of time to cure its deficiency because deficient as to constitute “no report,” need not result in the expert claimed expertise as a neurologist, described dismissal of the underlying health care liability claim. See plaintiff’s brain injury, attributed the effects of such Samlowski, 332 S.W.3d at 411; Austin Heart, 228 S.W.3d injury to the defendant surgeons’ breach of the standards at 284–85 & n. 8. Trial courts are afforded discretion of care, and opined unequivocally that the plaintiff’s under chapter 74 to grant one thirty-day extension so that claim had merit. Id. (“[T]here [wa]s no question that in claimants may, if possible, cure deficient reports. [the expert’s] opinion, Santillan’s claim against the Samlowski, 332 S.W.3d at 411 (citing Tex. Civ. Prac. & Physicians has merit.”). Rem.Code Ann. § 74.351(c); Ogletree, 262 S.W.3d at 320). When we find deficient a report that the trial court *536 [37] The report at issue in Scoresby, which had considered adequate, we may remand the case for the trial readily curable deficiencies and unquestionably opined court’s consideration of whether to grant the thirty-day that the claim against the physicians had merit, is unlike extension. Leland v. Brandal, 257 S.W.3d 204, 207 Johnson’s and Varon’s reports as to Fung. Applying the (Tex.2008); see Austin Heart, 228 S.W.3d at 284–85 & n. Scoresby three-factor test to Johnson’s supplemental 8. report shows that only the first factor is met: the report was timely served on Fung. However, the report does not Recently, a majority of the Texas Supreme Court opine that the Fischers’ health care liability claim against expressed a preference for trial courts to err on the side of Fung has merit and the report does not implicate Fung. Cf. granting extensions to cure deficient reports, noting that id. It omits any discussion about the standard of care for a “[t]he right answer in many cases will be for the trial referring primary care physician like Fung, its only court to grant one thirty-day extension upon timely references to “breaches of standards of care” and request and be done with it.” Samlowski, 332 S.W.3d at “causation” are directed solely at Urukalo’s conduct, and 411–12. The court concluded that a deficient report is it simply fails to assert that Fung did anything wrong. See eligible for the thirty-day extension if it: (1) is served by Rivenes, 257 S.W.3d at 338–39 (reversing trial court’s the statutory deadline; (2) contains the opinion of an denial of doctor’s motion to dismiss because expert’s individual with expertise that the claim has merit; and (3) report opined only about negligence of another doctor, implicates the defendant’s conduct. Scoresby, 346 S.W.3d hospital, and “hospital staff” generally); Marichalar, 185 at 557. The court acknowledged that “this is a minimal S.W.3d at 71–72, 74 (concluding that expert report was standard, but we think it is necessary if multiple ineligible for extension of time to cure because it was interlocutory appeals are to be avoided, and appropriate to directed to acts of other defendant doctors and did not give a claimant the opportunity provided by the Act’s mention Dr. Garcia at all, making it “no report” as to thirty-day extension to show that a claim has merit.” Id. him); see also Scoresby, 346 S.W.3d at 558. Johnson’s supplemental report was not merely deficient but was [36] An inadequate report does not indicate a frivolous effectively “no report” as to Fung. claim if the report’s deficiencies are readily curable. Id. at [38] 556; see id. at 558–59 (Willett, J., concurring) Likewise, Varon’s report was timely served but not (concluding that report “must actually allege that much else. Instead of opining that the Fischers’ health someone committed malpractice,” and report that “never care liability claim against Fung has merit and implicating asserts that anyone did anything wrong ” cannot receive Fung’s conduct, the report opines that Fung’s knowledge extension because bar for report is low “but not of critical information on which his liability hinges is subterranean”); see Samlowski, 332 S.W.3d at 416 “questionable,” or it negates Fung’s liability altogether (Guzman, J., concurring) (reasoning that report from based on information that he could not have known qualified health care professional, which explained belief because, according to this same report, it was that physician’s actions caused claimant’s injuries, should “intentionally concealed” from him. Cf. Scoresby, 346

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S.W.3d at 557. Any breach of the standard of care discussed in Varon’s report is entirely dependent on the pertinent information “available” to Fung and the “differential diagnoses known” to him; causation is CONCLUSION similarly addressed with nothing but speculation. Because Varon’s report opines that Fung’s liability is either Having sustained Urukalo’s, Minicucci’s, and ADC’s first questionable or impossible, it does not actually allege any issues, we reverse the probate court’s three orders malpractice and is “no report” as to Fung. Cf. id. at 557, overruling these appellants’ objections to the expert 559. reports as untimely, vacate the three orders denying these appellants’ motions to dismiss, and remand this case for We conclude that as to Fung, neither Varon’s report nor the court’s consideration of the merits of Urukalo’s, Johnson’s supplemental report meets Scoresby’s minimal Minicucci’s, and ADC’s objections and motions to standard because their deficiencies could only be cured dismiss. with entirely new reports based on changed facts. They are thus ineligible for the statutory extension, and the Further, having sustained Fung’s first and second issues, probate court abused its discretion in denying Fung’s we reverse the probate court’s order overruling Fung’s motion to dismiss. Accordingly, Fung’s second issue is objections *537 to the expert reports, reverse the order sustained. We reverse the probate court’s order overruling denying Fung’s motion to dismiss, render judgment Fung’s objections to the expert reports and denying dismissing the Fischers’ health care liability claim against Fung’s motion to dismiss, render judgment granting Fung with prejudice, and remand this case to the probate Fung’s motion to dismiss the Fischers’ health care court for a determination of Fung’s reasonable attorney’s liability claim against him with prejudice, and remand this fees and costs under section 74.351(b)(1) of the civil case for the probate court’s determination of reasonable practice and remedies code. attorney’s fees and costs. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1).

Footnotes 1 Bachmann’s and Johnson’s reports disclaim offering opinions about any defendant besides Urukalo by stating: “The following is a fair summary of my opinions as of the date of this report regarding the applicable standards of care and how the manner in which the care rendered only by Ana Urukalo, D.P.M. was deficient and failed to meet these applicable standards.” (Emphasis added.) 2 The motion to transfer the suit to probate court is not in the record, but Urukalo’s brief explains that “Myron Fischer instituted guardianship proceedings for the person and estate of Kathryn Fischer on December 3, 2009, due to her ‘partial incapacity’ based on a ‘physical limitation.’ ” 3 This Court allowed post-submission briefing on the Fischers’ jurisdictional issue. Matters in the Fischers’ post-submission brief unrelated to the jurisdictional issue will be considered based upon their earlier briefing and argument. 4 The exception in section 51.014(a)(9) prohibiting appeal from an order granting a 30–day extension to cure a deficient report under section 74.351 is inapplicable here because the court’s orders did not grant any extension. See Tex. Civ. Prac. & Rem.Code Ann. §§ 51.014(a)(9) (West Supp. 2011), 74.351(c) (West 2011). 5 Health care providers and podiatrists are within the scope of chapter 74. See id. All of the Fischers’ petitions and all of Urukalo’s answers identified Urukalo as a “D.P.M.” (doctor of podiatric medicine). See 22 Tex. Admin. Code § 373.3 (2011) (Tex. State Bd. of Podiatric Med. Exam’rs, Practitioner Identification). Also, the Fischers’ response to the motions to dismiss and objections refers to Urukalo as a “podiatrist” and to appellants collectively as “defendant health care providers.” 6 The Fischers assert, for the first time on appeal and contrary to their response below, that Urukalo’s objections were waived. Because the Fischers’ response did not raise the waiver issue (instead, they acknowledged that Urukalo’s objections to the 2009 reports were timely), it was not before the probate court when it ruled, and we may not consider it on appeal. See Hansen v. Starr, 123 S.W.3d 13, 18 (Tex.App.-Dallas 2003, pet. denied) (rejecting waiver issue because claimants failed to raise it in their responses to doctors’ motions to dismiss); see also San Jacinto Methodist Hosp. v. Carr, No. 01–07–00655, 2008 WL 2186473, at *3, 2008 Tex.App. LEXIS 3850, at *8 (Tex.App.-Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.) (holding that hospital could object to expert reports on appeal because claimants failed to raise waiver issue in response to hospital’s motion to dismiss).

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7 As previously noted, the 2007 reports address only Urukalo’s negligence, and the original ADC defendant does not seek dismissal of the health care liability claim asserting its vicarious liability for Urukalo’s alleged negligent conduct as pled in the 2007 original petition. 8 Because the probate court’s order explicitly stated that the ADC defendants’ objections were overruled as untimely (and thus, were waived), we do not reach the Fischers’ additional argument that the original ADC defendant waived its objections to the 2007 reports by participating in discovery. Cf. Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex.2003) (rejecting argument that doctor’s “attempt[ ] to learn more about the case” through discovery demonstrated his intent to waive his right to move for dismissal). 9 The Eleventh Court of Appeals noted that five of our sister courts evaluate direct-liability claims and vicarious-liability claims as separate health care liability claims, but the First Court of Appeals has instead reasoned that the two are merely alternative legal theories for imposing liability in the same health care liability claim and that “if at least one liability theory within a cause of action is shown by the expert report, then the claimant may proceed with the entire cause of action against the defendant, including particular liability theories that were not originally part of the expert report.” Hendrick Med. Ctr. v. Miller, No. 11– 11–00141–CV, 2012 WL 314062, at *3–4, 2012 Tex.App. LEXIS 683, at *9–11 (Tex.App.-Eastland Jan. 26, 2012, no pet.) (mem. op.) (collecting cases and declining to follow Certified EMS, Inc. v. Potts, 355 S.W.3d 683, 692 (Tex.App.-Houston [1st Dist.] May 19, 2011, pet. filed) (op. on reh’g)). To the extent Potts takes the position that an expert report which solely addresses a vicarious-liability claim against a health care provider suffices to support a direct-liability claim against that provider arising, as here, from a different group of operative facts, we decline to follow it. 10 The Fischers filed several amended petitions in 2009, but their amended pleadings against the original ADC defendant, based on the same underlying facts, did not restart their 120–day deadline for serving expert reports. See Maxwell v. Seifert, 237 S.W.3d 423, 426 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); see also Davis v. Baker, No. 03–10–00324–CV, 2010 WL 5463864, at *2–3, 2010 Tex.App. LEXIS 10317, at *5–7 (Tex.App.-Austin Dec. 22, 2010, no pet.) (mem. op.). 11 The Fischers’ response to the defendants’ objections and motions contains a chart reflecting the Fischers’ mistaken belief that the deadline for defendants’ objections to the reports ran from the date that the defendants were served with the petition. The Fischers miscalculated the deadline for the defendants’ objections—and erroneously argued that the objections were waived— by adding twenty-one days to the date that the defendants were served with the petition instead of the date that the defendants were served with the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added). 12 The Fischers appear to have abandoned this argument, which is unaddressed in their brief. See Tex.R.App. P. 38.2(a)(2).

13 The Fischers served only the original pair of defendants, ADC and Urukalo, with the first set of expert reports.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

CHCA Bayshore L.P. d/b/a Bayshore Medical Center (Bayshore) and Ira H. Rapp, M.D. The trial court 189 S.W.3d 855 Court of Appeals of Texas, dismissed Gray’s suit with prejudice after concluding that Houston (1st Dist.). the expert report she filed failed to satisfy the requirements set forth in section 74.351 of the Texas Civil Sylvia GRAY, Appellant, Practice and Remedies Code. See TEX. CIV. PRAC. & v. REM.CODE ANN. § 74.351 (Vernon Supp.2005). In her CHCA BAYSHORE L.P. d/b/a Bayshore Medical sole issue on appeal, Gray argues that the trial court erred Center and Ira H. Rapp, M.D., Appellees. in finding that her expert report did not comply with the statute. No. 01–04–00918–CV. | Jan. 26, 2006. We affirm.

Synopsis Background: Patient brought medical malpractice action against hospital and doctor, seeking to recover damages resulting from the injury to her knee during surgical BACKGROUND treatment of chronic sinusitis and nasal septal deformity. The 281st District Court, Harris County, David Jorge In 2001, Gray was admitted to Bayshore for surgical Bernal, J., dismissed patient’s suit, and patient appealed. treatment of chronic sinusitis and nasal septal deformity. For the surgery, Gray was administered a general anesthetic by Dr. Rapp. Upon regaining consciousness after the operation, Gray became aware of severe pain in [Holding:] The Court of Appeals, Evelyn V. Keyes, J., her left knee. Subsequent examination by an orthopedist held that expert report did not satisfy statutory and a neurologist revealed a dislocation of the knee’s requirements of medical liability statute, and thus, patella. Gray, age 39, had no prior history of knee dismissal of patient’s medical malpractice action was injuries. warranted. In November 2003, Gray brought suit against Bayshore, Dr. Rapp, and Phillip A. Matorin, M.D., seeking to Affirmed. recover damages resulting from the injury to her knee. 1 Gray’s suit alleged that the injury was caused by the flexing of her left leg during surgery and that the injury Attorneys and Law Firms could have *857 been prevented had Dr. Rapp and the Bayshore’s nursing staff properly monitored Gray’s *856 Michael D. Farmer, Plummer & Farmer, Houston, extremities during the operation. In March 2004, Gray TX, for Appellant. filed the report of her medical expert, Dr. Richard F. Toussaint, M.D., as required by section 74.351 of the Larry D. Thompson and Robert G. Smith, Lorance & Thompson, P.C., Griffin Vincent and Solace Kirkland Texas Civil Practice and Remedies Code. See id. Both Southwick, Andrews Kurth LLP, Houston, TX, for Bayshore and Dr. Rapp moved to dismiss Gray’s suit, Appellees. arguing that Dr. Toussaint’s expert report failed to comply with the requirements of section 74.351. See id. Panel consists of Justices NUCHIA, KEYES, and The trial court then granted Gray a 30–day extension to HANKS. cure any deficiencies in her expert report. See id. § 74.351(c).

Gray filed her amended expert report in June 2004. The report, again by Dr. Toussaint, reads in pertinent part:

OPINION Ms. Gray was administered a general anesthetic for the sinus surgery by Ira H. Rapp, M.D. During the surgery, EVELYN V. KEYES, Justice. Ms. Gray’s knees and arms had become flexed, and when she awoke from the anesthetic, she noted severe This appeal arises from a medical malpractice claim pain upon attempting to move from a bedpan. She was brought by appellant, Sylvia Gray, against appellees, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

noted to have a negative history of knee injury. Ms. negligence is the failure to use ordinary care, *858 Gray was seen by John H. Ownby, M.D., neurologist, failure to do what a physician, or operating room nurse, and Ronald B. Heisey, M.D., orthopedist, who upon of ordinary prudence would have done under the same subsequent workup of Ms. Gray’s knee pain or similar circumstances. I also understand that determined that her left patella had become dislocated. proximate cause is a cause which in a natural and continuous sequence produces an event, and without Based on the forgoing and my education, training, which, such an event would not have occurred. I also experience, and reasonable medical probability, it is my understand that in order to be a proximate cause, an act opinion that Dr. Ira H. Rapp, M.D., Dr. Phillip A. or omission complained of must be such that a person Matorin, M.D., and the nursing staff of Bayshore using ordinary care would have foreseen that the event, Medical Center breached the standard of care for or some similar event, might reasonably result failing to properly monitor, treat, and prevent the therefrom. resultant left knee injury and dislocation of the left patella. Based on these definitions, and on a reasonable degree of medical probability, Dr. Ira H. Rapp, M.D., Dr. Based on the Texas definitions, Dr. Ira H. Rapp, M.D., Phillip A. Matorin, M.D., and the Bayshore Medical Dr. Phillip A. Matorin, M.D., and the Bayshore Center perioperative nursing staff failed to meet the Medical Center perioperative nursing staff were standard of care when they neglected to monitor and negligent by failing to properly monitor, treat, and detect a malpositioned left knee resulting in a prevent Ms. Gray’s left patella dislocation. The dislocated left patella on December 5, 2001. The failure negligence was in the following: to monitor and detect the malpositioned left knee resulted in a dislocated left patella, severe pain and 1. Dr. Ira H. Rapp, M.D. failed to monitor the suffering, and subsequent medical treatment. positioning of Ms. Gray’s left knee to prevent the subsequent dislocation of the patella while under a After receiving Gray’s amended expert report, Bayshore general anesthetic. The standard of care in this and Dr. Rapp again moved to dismiss the suit, arguing circumstance would be for a physician to monitor the that the report still did not comply with section 74.351. positioning of the patient’s extremities to prevent injury After a hearing, appellees’ supplemental motions to during surgery and post operatively. dismiss were granted, and Gray timely appealed. 2. The Bayshore Medical Center perioperative nursing staff failed to monitor the positioning of Ms. Gray’s left knee to prevent the subsequent dislocation of the patella while in the operating room. The standard of DISCUSSION care in this circumstance would be for the perioperative nursing staff to monitor the positioning of the patient’s In her sole issue on appeal, Gray contends that the trial extremities to prevent injury during surgery and post court erred in its determination that Dr. Toussaint’s report operatively. did not comply with section 74.351 of the Civil Practice and Remedies Code. Specifically, she argues that Dr. In the above instance, had Dr. Ira H. Rapp, M.D., Dr. Toussaint’s report constituted an objective good faith Phillip A. Matorin, M.D., and the Bayshore Medical effort to comply with the requirements of section 74.351, Center perioperative nursing staff monitored and and thus contends that the trial court acted improperly in detected the flexing of Ms. Gray’s arms and legs during dismissing her suit. See id. § 74.351(l ) (stating that a general anesthesia in a timely fashion, then in court shall grant a challenge to an expert report “only if it reasonable medical probability, the pain and suffering appears to the court, after hearing, that the report does not experienced by Ms. Gray from the dislocated left represent an objective good faith effort” at compliance). patella would not have occurred along with the resultant necessary treatments. The failure to monitor, detect, diagnose, and timely treat a malpositioned left knee during a general anesthetic was negligence and Standard of Review [1] [2] [3] [4] proximately caused the dislocated left patella and We review all section 74.351 rulings under an subsequent pain and suffering experienced by Ms. Gray abuse of discretion standard. Am. Transitional Care Ctrs. on December 5, 2001. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses its discretion if it acts in an arbitrary or This opinion is based on the available medical records unreasonable manner without reference to guiding rules that you have provided for my review. I understand that or principles. See Garcia v. Martinez, 988 S.W.2d 219, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Gray v. CHCA Bayshore L.P., 189 S.W.3d 855 (2006)

222 (Tex.1999). When reviewing matters committed to Dr. Toussaint’s Report the trial court’s discretion, we may not substitute our own Dr. Toussaint’s amended report essentially states that, as judgment for that of the trial court. Walker v. Packer, 827 to both Bayshore and Dr. Rapp: (1) the applicable S.W.2d 833, 839 (Tex.1992). A trial court does not abuse standard of care required monitoring the positioning of its discretion merely because it decides a discretionary Gray’s extremities; (2) appellees failed to monitor the matter differently than an appellate court would in a positioning of Gray’s left knee; and (3) had appellees similar circumstance. See Downer v. Aquamarine monitored the knee’s position, Gray, within reasonable Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). medical probability, would not have suffered a dislocated patella. Although the report, at first glance, thus appears to articulate the three statutorily required elements of an Section 74.351 of the Texas Civil Practice and Remedies expert report, we are compelled, under an abuse of Code discretion standard, to conclude that the trial court did not act unreasonably in granting appellees’ motions to Pursuant to section 74.351, medical malpractice plaintiffs dismiss. must provide each defendant physician and health care provider with an expert report or voluntarily nonsuit the [9] [10] The supreme court held in Palacios that medical action. See TEX. CIV. PRAC. & REM.CODE ANN. § malpractice plaintiffs must provide an expert report 74.351. If a claimant timely furnishes an expert report, a detailing standard of care, breach, and causation as to defendant may file a motion challenging the report’s each defendant. Id. Here, the report states, without adequacy. See id. at § 74.351(a). The trial court shall explanation, that a single standard of care applied to both grant the motion only if it appears, after hearing, that the Bayshore and Dr. Rapp. While it is possible that an report does not represent a good faith effort to comply identical standard of care regarding limb monitoring with the statutory definition of an expert report. See id. § during and after surgery attaches to an anesthesiologist 74.351(l ). The statute defines an expert report as a (Dr. Rapp) and a perioperative nursing staff (Bayshore), written report by an expert that provides, as to each such generic statements, without more, can reasonably be defendant, a fair summary of the *859 expert’s opinions deemed conclusory. Conclusory statements regarding as of the date of the report regarding: (1) applicable standard of care, breach, or causation, do not constitute a standards of care; (2) the manner in which the care good faith effort to comply with section 74.351 in that provided failed to meet the standards; and (3) the causal they fail to adequately inform each defendant of the relationship between that failure and the injury, harm, or specific conduct called into question by the plaintiff’s damages claimed. See id. § 74.351(r)(6); Palacios, 46 claims. See id. S.W.3d at 878–79. [11] Similar weaknesses undermine Dr. Toussaint’s report [5] [6] [7] [8] Although the report need not marshal all the in regard to how appellees breached the applicable plaintiff’s proof, it must include the expert’s opinions on standard of care. Whether a defendant breached the the three statutory elements—standard of care, breach, standard of care due a patient cannot be determined and causation. See Palacios, 46 S.W.3d at 878–79. In without “specific information about what the defendant detailing these elements, the report must provide enough should have done differently.” See id. at 880. Here, Dr. information to fulfill two purposes if it is to constitute a Toussaint’s report contains only a general statement that good faith effort. First, the report must inform the appellees failed to monitor Gray’s left knee properly. The defendant of the specific conduct the plaintiff has called report provides no specific information concerning what into question. Id. at 879. Second, the report must provide actions appellees should have taken in the event they a basis for the trial court to conclude that the claims have observed Gray’s knee flexing. Indeed, a literal reading of merit. Id. A report that merely states the expert’s the report’s most direct statements concerning breach conclusions as to the standard of care, breach, and leads to the conclusion that simply monitoring Gray’s causation does not fulfill these two purposes. Id. The extremities, *860 and taking no corrective action, would expert must explain the basis for his statements and must have prevented her injury. In view of such general and link his conclusions to the facts. Bowie Mem’l Hosp. v. conclusory statements concerning breach, we cannot Wright, 79 S.W.3d 48, 52 (Tex.2002). Furthermore, in conclude that the trial court abused its discretion in assessing the report’s sufficiency, the trial court may not dismissing Gray’s suit.2 See id. at 879. draw any inferences, and must instead rely exclusively on the information contained within the report’s four corners. Conclusory statements also plague the report’s efforts to See Palacios, 46 S.W.3d at 879. satisfy the statutory element of causation. Specifically, Dr. Toussaint’s report does not state with any specificity how appellees departure from the stated standard of care

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caused Gray’s knee injury. Instead, the report provides person in that position, causing damage that would not only the conclusory statement that the failure to monitor have happened had ordinary professional care been used. caused Gray’s injury. By not fleshing out how appellees’ Considering that the trial court is limited to the four failure to monitor Gray’s extremities caused her injury, corners of the report in making its determination, one the report does not convincingly tie the alleged departure could reasonably conclude that the conclusory language from the standard of care to specific facts of the case. in the report, together with the inconsistency as to Such a failure has been found to be a sufficient reason for appellant’s complaint, convinced the trial court that the concluding that an expert report is statutorily inadequate. report failed to satisfactorily inform each appellee of the See Bowie Mem’l Hosp., 79 S.W.3d at 53. specific conduct being challenged. Palacios, 46 S.W.3d at 878–79. We further note that the report appears to be inconsistent with respect to the relationship among the standard of In view of the conclusory, and at times inconsistent, care, breach, and the cause of Gray’s injury. Specific statements within Dr. Toussaint’s expert report, we language in the report indicates that the applicable cannot conclude that the trial court abused its discretion in standard of care breached by the defendants was granting appellees’ motion for dismissal. We thus “monitor[ing] the positioning of the patient’s overrule Gray’s sole issue on appeal. extremities.” The report then appears to depart from this limited standard of care and breach, stating, “The failure to monitor, detect, diagnose, and timely treat a malpositioned left knee during general anesthetic was negligence, and proximately caused the dislocated left CONCLUSION patella.” (Emphasis added.) The report thus fails to put the appellees on notice as to who had what responsibility We affirm the trial court’s order of dismissal. and how that person or persons departed from the standard of ordinary medical care of a patient under anesthesia in failing to do some specific act required by a

Footnotes 1 Dr. Matorin was the admitting physician. He was non-suited in July 2004.

2 We note that in Strom v. Mem’l Hermann Hospt. Sys., this court upheld a trial court’s decision to dismiss a remarkably similar suit due to the filing of an inadequate expert report. 110 S.W.3d 216 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In Strom, the plaintiff similarly alleged that she sustained an injury to her left knee due to improper positioning of her extremities during surgery. Id. at 219. The expert report Strom provided contained considerably more detail than Dr. Toussaint’s report, referring specifically to the need to properly pad, strap, and place a patient’s extremities during surgery. Id. at 224.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)

232 S.W.3d 170 Court of Appeals of Texas, Houston (1st Dist.). OPINION HARRIS COUNTY HOSPITAL DISTRICT, Appellant, TERRY JENNINGS, Justice. v. Autrey GARRETT, Individually and as Next Friend In this interlocutory appeal,1 appellant, Harris County of J.G., D.G., and S.G., Minor Children, Appellees. Hospital District (“HCHD”), challenges the trial court’s order denying its motion to dismiss the health care No. 01–06–00782–CV. | May 3, 2007. liability claim2 of appellees, *173 Autrey Garrett, individually and as next of friend of J.G., D.G., and S.G., her minor children. Synopsis Background: Patient brought malpractice action against We affirm the trial court’s order. physicians and hospital for failure to timely disclose breast cancer biopsy results. The 152nd District Court, Harris County, Kenneth P. Wise, J., denied hospital’s motion to dismiss based on patient’s expert report, and hospital filed interlocutory appeal. Factual and Procedural Background

In their original petition, the Garretts allege that HCHD and others3 were negligent in failing to notify her of her Holdings: The Court of Appeals, Terry Jennings, J., held diagnosis of ductal carcinoma of the breast until July that: 2005, even though pathology findings establishing this [1] diagnosis were made on December 1, 2003, resulting in a an expert report did not have to set forth the expert’s significant delay of Garrett’s treatment and the curriculum vitae as a separate document in order to advancement of her cancer. comply with expert report statute; [2] In October 2003, Garrett sought obstetrics and physician who submitted report was qualified to serve gynecology care at Lyndon B. Johnson Hospital (“LBJ”), as an expert on issue of whether hospital departed from and Dr. John Riggs “assumed care of [Garrett].” Riggs the standards of care in failing to disclose results of breast “discovered a breast mass” in Garrett’s left breast and cancer biopsy; ordered a breast ultrasound, which was performed on [3] October 6, 2003 and revealed that the mass was “possibly report satisfied requirements of expert report statute on suspicious for malignancy.” Garrett followed up on the identifying a standard of care; and results with the Breast Clinic at LBJ, which scheduled a [4] biopsy. The biopsy was performed on November 25, report satisfied causation requirements of expert report 2003, and Garrett was “given a follow up appointment statute. with the Breast Clinic for December 10, 2003 to discuss the results.” Although a “pathology report was ready” on December 1, 2003, Garrett was not informed of the results Affirmed. of the biopsy until July 2005.

Attorneys and Law Firms Garrett “transferred her care to Dr. Enrique Ortega,” and, during her first visit with him on November 13, 2003, *172 John Arlen Pruitt, Assistant County Attorney, Ortega also “noted a left breast mass.” At a January 15, Houston, TX, for Appellant. 2004 appointment, Dr. Ortega told Garrett that he “would obtain her biopsy report from LBJ” because Garrett had Chad Bassett Matthews, League City, TX, for Appellees. informed him that LBJ “was charging $90 for same.” Although Ortega delivered Garrett’s baby on April 23, Panel consists of Chief Justice RADACK and Justices 2004, and Garrett returned to Ortega for two more JENNINGS and BLAND.

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appointments, he never informed Garrett of the biopsy reports of Dr. Ortega, Dr. Riggs, and LBJ. These records results. reveal that Garrett began receiving obstetrical care at LBJ in September 2003 and “underwent her first obstetrical In July 2005, Garrett went to the LBJ emergency room exam with L. Hunt, WNPC on October 3, 2003.” Hunt, a complaining of “worsening pain” in her left breast, and nurse practitioner, recorded a nodule on Garrett’s left she was told, for the first time, of her diagnosis of ductal breast and made notes “reflecting appropriate assessment carcinoma “from the initial November 25, 2003 needle and plans for referral.” Furthermore, “the attending biopsy.” During this visit, the LBJ oncology clinic physician,” Riggs, “also made a note ... reflecting evaluated Garrett and informed her that she had “metastic knowledge of the breast exam and nodule.” breast cancer which had spread to her lumbar spine and lymph nodes in her chest.” These records reveal that Garrett had an ultrasound performed at LBJ on October 6, 2003, and, as a result, The Garretts allege that the defendants were negligent in LBJ’s “radiology staff” recommended a biopsy. Dr. Riggs failing to (1) “timely inform [Garrett] of her cancer”; (2) was notified of the findings of the ultrasound on October “procure the results of the November 25, 2003 biopsy”; 10, 2003, and, on that same date, a “referral note [was] and (3) “follow appropriate American College of made for [Garrett] to go to the breast clinic.” Garrett Radiology (‘ACR’) guidelines.” Garrett contends that as a attended her second prenatal visit at the “LBJ obstetrical result of defendants’ negligence, her “cancer spread clinic” on October 31, 2003, and Hunt again examined beyond the confines of her breast,” rendering her her. Hunt’s notes reflect that Hunt “continued “treatment options and the effectiveness of treatment ... surveillance” of Garrett’s breast nodule and that Garrett much more limited” and “resulting in injuries from an had a biopsy appointment in November 2003. Garrett acceleration and metastatis of her cancer, a significantly attended her third prenatal visit at the “LBJ obstetrical reduced life expectancy, lost effective medical treatment clinic” on November 26, 2003, and Hunt again examined and therapy, and medical and surgical treatment that was her. Notes from this exam indicate that Garrett’s biopsy unnecessary.” The Garretts seek damages for physical was performed on November 25, 2003 and that a follow- pain, impairment, mental anguish, disfigurement, medical up appointment was scheduled for December 10, 2003. expenses, *174 lost earnings, and loss of consortium. The records of the LBJ radiology department also show The Garretts timely served HCHD with an expert report4 that Garrett’s biopsy was performed on November 25, by Dr. Robert McWilliams, M.D. In his report, 2003 and that samples “were obtained and sent to McWilliams details his qualifications as follows: pathology for review.” The LBJ pathology department’s report indicates a “final pathologic diagnosis” of ductal carcinoma.5 I am a board-certified OBGYN and a Fellow of the American College of Obstetricians and Gynecologists. Dr. Ortega’s notes and Garrett’s medical records show I am also board eligible in Reproductive that Garrett transferred her *175 care to Ortega in late Endocrinology. I have practiced obstetrics and 2003 and that Ortega provided Garrett obstetrical care gynecology as a private practitioner in Denver, until April 20, 2004. On November 13, 2003, during Colorado from July 1979 through June, 1998, Ortega’s initial physical of Garrett, he noted her abnormal following my residency at Los Angeles County/USC breast mass. Furthermore, an “authorization for release of Medical Center. I completed a 2–year fellowship in information” was completed, authorizing LBJ to release Reproductive Endocrinology at Baylor College of Garrett’s records to Ortega. Although Ortega’s notes from Medicine in Houston in June 1990. I was an assistant Garrett’s December 18, 2003 visit show that the results of professor in the Department of Obstetrics and Garrett’s biopsy were “to be given on 12/23/03,” on Gynecology, Division of Reproductive Endocrinology January 15, 2004, Ortega noted that he was “[u]nable to at the University of Texas Medical School at Houston obtain Bx. Results (LBJ.), last mo., (Hospital Reportedly from 1990 through 1992. I was Head of the Division of charging pt. $90.00 to give her results!?). Report Reproductive Endocrinology, Department of Obstetrics requested.” Thus, as Dr. McWilliams notes in his report, and Gynecology at MacGregor Medical Association in there is some evidence that, despite their requests, Ortega Houston from January, 1993 until October, 1999. I and Garrett were not able to obtain the biopsy results from reentered private practice in 2000, and am currently a LBJ. solo practitioner in Gynecology and Reproductive Endocrinology in Houston, Texas. Dr. McWilliams further states in his report that Garrett In preparing his report, Dr. McWilliams reviewed the visited the LBJ emergency room on July 11, 2005 “with a pertinent office and clinical notes and lab and radiology 6 month history of left breast pain and swelling.” LBJ’s

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notes reveal that a breast ultrasound and a surgical consult *176 a combination of factors more than likely with the oncology clinic was ordered, and a specific note contributed to the failure to notify Ms. Garrett of her from the emergency room to the oncology service stated breast cancer diagnosis. “no follow up on this ever, please evaluate.” McWilliams reviewed Garrett’s subsequent medical records, which .... confirmed the existence of “advanced disease ... with metastasis.” Garrett initiated treatment soon after she Without a diagnosis of breast cancer then, no effective learned of her diagnosis. diagnostic measure and therapeutic options were considered or offered Ms. Garrett. The inevitable Based upon the above facts, Dr. McWilliams opines in his consequence of Ms. Garrett’s breast cancer and its report that “the medical care provided by LBJ Hospital advancement to a poor prognosis with metastasis over and the physicians providing care to Garrett fell below the an approximate 20 month delay could most likely have standard of care.” McWilliams further opines that been prevented with confirmation of the disease at the “[n]umerous physicians and support staff personnel at time of her biopsy. LBJ Hospital were involved in Ms. Garrett’s diagnosis and confirmation by breast biopsy of breast cancer[,] [y]et HCHD filed objections to Dr. McWilliams’s report and a notification of this unfortunate diagnosis to Ms. Garrett motion to dismiss, which the trial court denied. soon after the diagnosis” was never made “via phone call or certified letter.” In response to any potential defenses to be raised by LBJ and its staff, McWilliams concludes that “[t]he fact that Ms. Garrett transferred her care to an Standard of Review obstetrician outside the LBJ hospital system [did] not absolve them from notifying Ms. Garrett of her breast [1] We review a trial court’s decision on a motion to cancer diagnosis.” Also, accepting the truth of Dr. dismiss under section 74.351 for an abuse of discretion. Ortega’s notes regarding his inability to obtain the See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, biopsy’s results from LBJ and LBJ’s attempt to charge 46 S.W.3d 873, 875 (Tex.2001) (predecessor statute); Garrett $90 before releasing her results, “the medical Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 records department of LBJ Hospital was also liable in (Tex.App.-Houston [1st Dist.] 2006, no pet.). A trial court contributing to the failure to notify Ms. Garrett of her abuses its discretion if it acts in an arbitrary or diagnosis of cancer before it continued to advance to a unreasonable manner without reference to guiding rules stage of poorer prognosis.” With regard to the LBJ or principles. See Garcia v. Martinez, 988 S.W.2d 219, Hospital system, McWilliams stated, 222 (Tex.1999). When reviewing matters committed to the trial court’s discretion, we may not substitute our own Where the greatest degree of medical liability within judgment for that of the trial court. Bowie Mem’l Hosp. v. the LBJ hospital system lies with respect to notification Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does of this diagnosis to Ms. Garrett is difficult to say. From not abuse its discretion merely because it decides a (1) Dr. Riggs, her obstetrician who first made the discretionary matter differently than an appellate court diagnosis of a left breast mass to[;] would in a similar circumstance. Gray, 189 S.W.3d at 858. (2) L. Hunt, her nurse practitioner who initially examined Ms. Garrett’s left breast mass and continued her surveillance of the mass and recommended Ms. Garrett keep her appointments Expert Report with the radiology department for a diagnosis of this mass to[;] In its sole issue, HCHD argues that the trial court abused its discretion in denying its motion to dismiss because Dr. (3) the radiology staff or physicians who performed McWilliams’s expert report (1) “included no curriculum the needle biopsy of the breast mass to[;] vitae and nowhere in the body of the report did it show (4) the pathology department where the tissue the author was a competent expert as to [HCHD]”; (2) diagnosis was initially made to[;] “failed to identify the standard of care applicable to [HCHD]”; and (3) “failed to show that any conduct of (5) the medical records department who may or may [HCHD] caused any damages.” not have refused to give Ms. Garrett her medical records, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Harris County Hosp. Dist. v. Garrett, 232 S.W.3d 170 (2007)

A plaintiff bringing a healthcare liability claim must [9] provide each defendant health care provider with an In regard to the Garretts’ service of Dr. McWilliams’s expert report or voluntarily nonsuit the action. See TEX. curriculum vitae, HCHD has failed to cite any authority CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon for the proposition that a curriculum vitae must be Supp.2006); Gray, 189 S.W.3d at 858. The expert report furnished as a separate document.6 Section 74.351(a) is defined as a fair summary of the expert’s opinions as of provides merely that a claimant shall serve “one or more the date of the report regarding the applicable standards of expert reports, with a curriculum vitae of each expert.” care, the manner in which the care rendered by the health TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) care provider failed to meet the standards, and the causal (Vernon Supp.2006) (emphasis added). Section 74.402, relationship between that failure and the injury, harm, or which addresses the qualifications of an expert in a suit damages claimed. See TEX. CIV. PRAC. & REM.CODE against a health care provider, also does not include a ANN. § 74.351(r)(6) (Vernon Supp.2006). If a plaintiff requirement that a curriculum vitae be served as a timely files an expert report, a defendant may then file an separate document. Id. § 74.402 (Vernon 2005). objection challenging the sufficiency of the report. Id. § [10] 74.351(a). The trial court shall grant a motion to dismiss In regard to Dr. McWilliams’s qualifications, section only if it appears to the court, after hearing, that the report 74.351 defines “expert,” with respect to a person giving does not represent an objective good-faith effort to opinion testimony regarding whether a health care comply with the definition of an expert report. Id. § provider departed from accepted standards of health care, 74.351(l ). to mean “an expert qualified to testify under the requirements of Section 74.402.” Id. § 74.351. Under [2] [3] [4] [5] [6] [7] [8] The only information relevant to the section 74.402, a person may qualify as an expert witness inquiry is within the four corners of the document. on the issue of whether the health care provider departed Palacios, 46 S.W.3d at 878. Although the report need not from accepted standards of care only if the person, marshal all the plaintiff’s proof, it must include the expert’s opinion on each of the elements identified in the (1) is practicing health care in a field of practice that statute. See Palacios, 46 S.W.3d at 878–79; Gray, 189 involves the same type of care or treatment as that S.W.3d at 859. In setting out the expert’s opinions, the delivered by the defendant health care provider, if report must provide enough information to fulfill two the defendant health care provider is an individual, at purposes if it is to constitute a good-faith effort. Palacios, the time the testimony is given or was practicing that 46 S.W.3d at 879. First, the report must *177 inform the type of health care at the time the claim arose; defendant of the specific conduct the plaintiff has called into question. Id. Second, the report must provide a basis (2) has knowledge of accepted standards of care for for the trial court to conclude that the claims have merit. health care providers for the diagnosis, care, or Id. A report that merely states the expert’s conclusions treatment of the illness, injury, or condition involved does not fulfill these two purposes. Id. Rather, the expert in the claim; and must explain the basis of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. (3) is qualified on the basis of training or experience However, a plaintiff need not present evidence in the to offer an expert *178 opinion regarding those report as if she were actually litigating the merits. accepted standards of health care. Palacios, 46 S.W.3d at 879. Furthermore, the report can Id. § 74.402(b) (Vernon 2005). be informal in that the information in the report does not have to meet the same requirements as the evidence “Practicing health care” is defined as including (1) offered in a summary judgment proceeding or at trial. Id. training health care providers in the same field as the defendant health care provider at an accredited educational institution or (2) serving as a consulting Curriculum Vitae and Qualifications health care provider and being licensed, certified, or HCHD first contends that it was not permissible for Dr. registered in the same field as the defendant health care McWilliams to set forth his curriculum vitae in a provider. Id. § 74.402(a)(1), (2). To determine whether an paragraph contained in his expert report. Alternatively, expert “is qualified on the basis of training or experience” HCHD contends that the curriculum vitae is “grossly under subsection (b)(3), a court is to consider whether the inadequate” because it fails to establish Dr. McWilliams’s expert (1) is certified by a licensing agency of one or credentials as an expert “on the operation of a major more states of the United States or a national professional metropolitan hospital’s records systems or pathology certifying agency, or has other substantial training or labs.” experience, in the area of health care relevant to the claim

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and (2) is actively practicing health care in rendering expert “on *179 the operation of a major metropolitan health care services relevant to the claim. Id. § hospital’s records systems or pathology labs.” 74.402(c)(1), (2) (Vernon 2005).

As stated in his expert report, Dr. McWilliams is “a board-certified OBGYN and a Fellow of the American Standard of Care College of Obstetricians and Gynecologists” and is also HCHD next argues that Dr. McWilliams’s report is “board eligible in Reproductive Endocrinology.” inadequate because “it fails to identify the standard of Following his residency, McWilliams practiced obstetrics care that was allegedly breached” and “never states what and gynecology from July 1979 through June 1988. Then, should have been done.” HCHD asserts that after completing a two-year fellowship in Reproductive McWilliams’s statements in his report that no person Endocrinology at Baylor College of Medicine, he served notified Garrett of her diagnosis does not establish that as an assistant professor at the University of Texas the standard of care required such notification. HCHD Medical School in the Department of Obstetrics and also asserts that Garrett was being treated by multiple Gynecology for two years. McWilliams subsequently health care providers, including nurses and physicians, served as the head of the reproductive endocrinology “who all may or may not have had access to the division for the department of obstetrics and gynecology information,” and that the complaint that all of those at a medical association for approximately seven years. providers failed to inform her of her cancer diagnosis Finally, he reentered private practice in 2000, and does not show a duty owed by any one provider. currently practices as a solo practitioner in gynecology [11] [12] [13] and reproductive endocrinology in Houston. In identifying the standard of care, whether a defendant breached his or her duty to a patient cannot be We note that the specific nature of the Garretts’ claims is determined absent specific information about what the that HCHD employees and staff failed to inform Garrett defendant should have done differently. Palacios, 46 of her diagnosis and failed to release her medical records S.W.3d at 880. While a “fair summary” is something less to both her and her doctor. The pertinent standard of care than a full statement of the applicable standard of care and identified in Dr. McWilliams’s report is that HCHD how it was breached, even a fair summary must set out employees and staff should have timely informed Garrett what care was expected, but not given. Id. When a of her cancer diagnosis and should have released her plaintiff sues more than one defendant, the expert report medical records, including her biopsy results, to both her must set forth the standard of care for each defendant and and her doctor upon their respective requests. In regard to explain the causal relationship between each defendant’s the nature of the Garretts’ claims and the pertinent individual acts and the injury. See Doades v. Syed, 94 standard of care, HCHD has provided us with no authority S.W.3d 664, 671–72 (Tex.App.-San Antonio 2002, no that would require McWilliams to possess expertise “on pet.); Rittmer v. Garza, 65 S.W.3d 718, 722–23 the operation of a major metropolitan hospital’s records (Tex.App.-Houston [14th Dist.] 2001, no pet.). systems or pathology labs.” [14] The pertinent standard of care identified by Dr. We conclude that Dr. McWilliams is qualified to serve as McWilliams is that an HCHD employee should have an expert on the issue of whether HCHD departed from informed Garret of her biopsy results and should have the accepted standards of care in regard to the Garretts’ released those results upon Garrett’s or Dr. Ortega’s claims. McWilliams established his expertise in the fields request. See Columbia Rio Grande Regional Healthcare, of obstetrics and gynecology and satisfied the statutory L.P. v. Hawley, 188 S.W.3d 838, 843–44, 848–51 requirements by showing that he is practicing health care (Tex.App.-Corpus Christi 2006, pet. filed) (affirming jury in a field of practice that involves the same type of care or verdict against hospital for its negligence in failing to treatment as that delivered by HCHD; has knowledge of timely and properly convey cancer diagnosis to patient for accepted standards of care for health care providers for almost full year); see also Bowie, 79 S.W.3d at 52 the diagnosis, care, or treatment of the illness, injury, or (recognizing that report fairly summarized standard of condition involved in the claim; and is qualified on the care because it stated that hospital should have established basis of training or experience to offer an expert opinion procedures to read and interpret x-rays in timely manner regarding those accepted standards of health care. and to inform patients about results). HCHD asserts that Accordingly, we hold that the trial court did not err in no one, other than the pathology department and records denying HCHD’s motion to dismiss the health care department, are even mentioned in the report in relation to liability claims of the Garretts on the grounds that Dr. the hospital. However, although the report primarily McWilliams set forth his curriculum vitae in his expert focuses on the actions of Garrett’s treating physicians, report and that he did not establish his credentials as an including Dr. Riggs, the attending physician at LBJ, the

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report also specifically references both the conduct of Furthermore, Dr. McWilliams’s report indicates that after nurse practitioner Hunt and the conduct of LBJ’s medical Garrett transferred her care to Dr. Ortega, an OBGYN records department in refusing or failing to release outside of the LBJ system, Ortega and Garrett sought to Garrett’s biopsy results when Dr. Ortega and Garrett obtain the biopsy results from LBJ, but were unable to requested those results. Thus, we conclude, from our obtain them. McWilliams opined that LBJ staff in the review of the four corners of the report, and in light of the medical records department had a responsibility to specific nature of the Garretts’ claims, that the report provide Garrett her medical records, including her biopsy informs HCHD of the specific conduct that the Garretts results, and that the failure to provide those results have called into question, the standards of care that should violated HCHD’s standard of care. Again, in response to have been followed, and what HCHD should have done. any potential claim by HCHD that Dr. Ortega, or another Accordingly, we hold that the trial court did not err in treating physician for which HCHD was not liable, was denying HCHD’s motion to dismiss the health care solely charged with the responsibility to notify Garrett, liability claims of the Garretts on the ground that McWilliams asserted that HCHD was not absolved of its McWilliams’s report fails to identify HCHD’s standard of responsibility to notify Garrett of her diagnosis because care and state what HCHD should have done. she transferred her care to a doctor outside the LBJ system. McWilliams also noted in his report, despite HCHD’s apparent failure or refusal to release Garrett’s records, that a form authorizing the release of her medical Causation records to Dr. Ortega had been completed. [15] Finally, HCHD asserts that Dr. McWilliams’s report “never identifies what caused the alleged damages” and In regard to whether Garrett sustained any harm as a does not show that Garrett “actually sustained” any result of the approximately one and one-half year delay in damages. HCHD also asserts that the *180 report learning of her cancer diagnosis, Dr. McWilliams stated indicates only that the delay in informing her of her in his report that when Garrett finally visited the LBJ diagnosis led to a “a poor forecast for the disease,” which emergency room, she presented “with a 6 month history “is not an actual damage.” Further, HCHD asserts that the of left breast pain and swelling.” At this point, Garrett had report did not show “that anything different would have developed “advanced disease ... with metastasis.” happened.” As noted above, an expert report must provide McWilliams further stated that because of the delay in a fair summary of the expert’s opinions regarding the communicating the diagnosis, “no effective diagnostic causal relationship between the failure of the health care measure and therapeutic options were considered or provider to provide care in accord with the pertinent offered Ms. Garrett,” with the “consequence” of the standard of care and the injury, harm, or damages cancer’s “advancement to a poor prognosis with claimed. TEX. CIV. PRAC. & REM.CODE ANN. § metastasis.” McWilliams opined that such advancement 74.351(r)(6). Here, Dr. McWilliams states in his report with metastasis7 “could most likely have been prevented that Hunt, a nurse practitioner who examined Garrett with confirmation of the disease at the time of her biopsy” during her prenatal visits, was assisting in “continued and absent the “approximate 20 month delay.” surveillance” of Garrett’s breast nodule, was aware of the biopsy, and failed to inform Garrett of her diagnosis. *181 In support of its causation argument, HCHD relies McWilliams also states in his report that the LBJ on Bowie, where the plaintiff alleged that a hospital’s radiology department performed a biopsy of Garrett’s left physician’s assistant misread or misplaced an x-ray and, breast on November 25, 2003, the biopsy samples were therefore, did not discover that the plaintiff had fractured sent to LBJ’s pathology department for review, and a her foot. Bowie, 79 S.W.3d at 50. Approximately one “final pathologic diagnosis” of ductal carcinoma was month later, the plaintiff’s orthopedic surgeon discovered made on December 1, 2003, yet Garrett was never the fractured foot. Id. The plaintiff filed an expert report, notified of this diagnosis by any LBJ employee. which stated that had the x-ray been properly read, she McWilliams opined that nurse Hunt as well as LBJ “would have had the possibility of a better outcome.” Id. employees in the pathology department and LBJ’s at 51. The supreme court, after recognizing that a report “radiology staff” had a responsibility to notify Garrett of need not use any particular magical words, held that the this diagnosis. McWilliams also cited in his report a note trial court could have reasonably determined that the from LBJ’s emergency room to the oncology service, report did not represent a good-faith effort to summarize made after Garrett visited the LBJ emergency room in the causal relationship. Id. at 53. The court noted that the July 2005, that stated “no follow up on this ever, please report simply opined that the plaintiff had a “possibility of evaluate.” (emphasis added). a better outcome,” and did not sufficiently “[link] the expert’s conclusion (that [the plaintiff] might have had a

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better outcome) to [the hospital’s] alleged breach (that it inform Garrett of her diagnosis eliminated the availability did not correctly read and act upon the x-rays).” Id. of effective diagnostic measures and therapeutic options.

Here, in contrast, Dr. McWilliams opined in his expert We conclude that Dr. McWilliams, in his report, provided report that HCHD’s breach of its standard of care a fair summary of the causal relationship between permitted Garrett’s cancer to advance and metastasize. HCHD’s failure to meet the pertinent standard of care and See Linan v. Rosales, 155 S.W.3d 298, 305–06 the Garretts’ damages. Accordingly, we hold that the trial (Tex.App.-El Paso 2004, pet. denied) (affirming verdict in court did not err in denying HCHD’s motion to dismiss favor of plaintiff for doctor’s failure to timely diagnose the health care liability claims of the Garretts’ on the cancer based on evidence that during two-month period ground that McWilliams’s report does not show that cancer “involved the lymph vessels” and caused edema HCHD’s conduct actually caused the Garretts’ any and that advancement of cancer eliminated option of damages. breast conserving therapy); In re Barker, 110 S.W.3d 486, 491 (Tex.App.-Amarillo 2003, no pet.) (finding expert We overrule HCHD’s sole issue. report stating that negligent failure to recognize medical condition and delay in treatment increased severity of plaintiff’s injuries to be sufficient). McWilliams further noted in his report that as a result of the failure to timely inform Garrett of her cancer, Garrett, in July 2005, Conclusion presented herself at LBJ’s emergency room with a six month history of pain and swelling in her breast. We affirm the order of the trial court. Furthermore, McWilliams opined that the failure to timely

Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2006).

2 “ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.” Id. § 74.001(a)(13) (Vernon 2005). “Health care provider” includes any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including a registered nurse or a health care institution. Id. § 74.001(a)(12)(A). “Health care institution” includes a hospital or a hospital system. Id. § 74.001(a)(11). 3 The Garretts sued HCHD doing business as Lyndon B. Johnson Hospital (“LBJ”). Thus, references in this opinion to LBJ implicate HCHD. The Garretts also sued Michelle Lesslie, D.O., Marian Bonner, M.D., Emily Robinson, M.D., Enrique Ortega, M.D., the University of Texas System, and the University of Texas Health Science Center at Houston, none of whom are parties to this appeal. 4 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp.2006).

5 Dr. McWilliams summarizes the report as follows: “A final pathological diagnosis of the biopsied left breast nodule to be ‘breast with ductal carcinoma, modified Black’s Nuclear Grade: 3 (poorly differentiated), focus suspicious for lymphovascular invasion identified, and ductal carcinoma in situ: possible foci present, await immunostains for confirmation.’ ” 6 Papkov v. Schiffman, No. 01–00–01099–CV, 2002 WL 1041118, at *1 (Tex.App.-Houston [1st Dist.] May 23, 2002, no pet.) (mem. op.), the case cited by HCHD in support of its argument, is not on point as the appellant in that case wholly failed to file a curriculum vitae. Id. Moreover, we note that the Corpus Christi Court of Appeals has rejected a similar complaint. See Carreras v. Marroquin, No. 13–05–082–CV, 2005 WL 2461744, at *2 (Tex.App.-Corpus Christi Oct. 6, 2005, pet. filed) (mem. op.) (“The statute does not expressly prohibit a claimant from including the curriculum vitae within the body of the report, as was done in this case.”). 7 “Metastasis” means “the development of secondary malignant growths at a distance from a primary site of cancer.” THE NEW OXFORD AMERICAN DICTIONARY 1074 (1st ed.2001).

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End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

William E. Zook, Jr., David W. Townend, Ted B. Lyon & 395 S.W.3d 884 Associates, P.C., Mesquite, TX, for appellant. Court of Appeals of Texas, Austin. Before Chief Justice JONES, Justices PEMBERTON and ROSE. Richard HEBERT and Janet Hebert, Appellants v. Timothy E. HOPKINS, M.D., and Shannon Clinic, Appellees.

No. 03–11–00419–CV. | March 1, 2013. OPINION

BOB PEMBERTON, Justice. Synopsis Background: Patient filed health care liability claim Richard Hebert and his wife, Janet Hebert, appeal from a (HCLC) against neurosurgeon and clinic in connection district court judgment dismissing, for failure to serve the with spinal-fracture surgery that purportedly rendered expert report required by chapter 74 of the civil practice patient a quadriparetic. The District Court, Tom Green and remedies code, a health care liability claim they County, 391st Judicial District, Thomas J. Gossett, J., asserted against Timothy Hopkins, M.D., and Shannon dismissed claim after concluding patient had failed to Clinic.1 The Heberts bring two issues, urging respectively serve an expert report meeting statutory requirements. that (1) the district court abused its discretion in Patient appealed. concluding that they failed to serve an expert report complying with chapter 74; and (2) chapter 74’s expert- report requirement violates various constitutional protections. We will overrule these contentions and affirm Holdings: The Court of Appeals, Bob Pemberton, J., held the district court’s judgment. that: [1] trial court did not abuse its discretion in concluding that patient’s expert report did not adequately describe standard of care or alleged breach thereof; BACKGROUND [2] statutory requirements applicable to expert reports in The Heberts filed the underlying suit alleging that Dr. support of HCLCs were rationally related to legitimate Hopkins, a neurosurgeon, committed professional state purpose and therefore did not violate equal negligence in performing spinal surgery on Richard protection based on disparate treatment of health care Hebert at Shannon in September 2008 after Richard broke liability claimants and other litigants; his neck in a fall. Specifically, they pled that Richard had presented with a fracture of the cervical 6(C6) vertebra [3] those requirements did not violate separation-of-powers that was “very unstable” due to a preexisting condition principles; and known as ankylosing spondylitis that had self-fused his spinal vertebrae on either side of the fracture; that the [4] patient failed to demonstrate that those requirements, as standard of care in such circumstances had required applied to him, violated open-courts provision of Texas Hopkins to perform “an anterior and posterior fusion constitution. surgery” to ensure stability; that Hopkins had performed “an anterior fusion with plates and screws at C4–C7 but took no appropriate surgical measures to stabilize the Affirmed. fusion posteriorly;” and that the anterior-only fusion had subsequently “failed as one or more of the screws had J. Woodfin Jones, C.J., filed a dissenting opinion pulled out causing the vertebral segments to move and compress the spinal cord at C4–C7,” rendering Richard a quadriparetic (i.e., paralyzed in all four limbs). The Attorneys and Law Firms Heberts asserted that Shannon was vicariously liable for Hopkins’s negligence by virtue of Hopkins’s status as a *888 Dana D. Banks, Smith Rose Finley, P.C., San “partner or member” of the clinic. Angelo, TX, for appellee. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

provider failed to *890 meet the standards, and the causal Within 120 days thereafter, in an attempt to comply with relationship between that failure and the injury, harm, or chapter 74’s expert-report requirement, the Heberts damages claimed.”8 “A court shall grant a motion served a report from P. Merrill White, M.D., along with challenging the adequacy of an expert report only if it Dr. White’s curriculum vitae.2 Hopkins *889 and Shannon appears to the court, after hearing, that the report does not timely objected to the sufficiency of Dr. White’s report, represent an objective good faith effort to comply” with asserting that the report had failed to adequately set forth, this definition of “expert report.”9 To constitute a “good and was “conclusory” with respect to the underlying faith effort,” as the Texas Supreme Court has explained, factual bases of, opinions regarding the applicable the report must include the expert’s opinion on “each of standard of care for Hebert in light of his underlying the three main elements: standard of care, breach, and medical conditions, the manner in which Hopkins’s care causation,” and must provide enough information to fulfill had failed to meet that standard, or a causal linkage to the two purposes with respect to each element: (1) it must fusion failure and Richard’s injuries.3 By now, the 120– inform the defendant of the specific conduct the plaintiff day period for serving an “expert report” had expired, so has called into question; and (2) it must provide a basis appellees also moved to dismiss the Heberts’ suit with for the trial court to conclude that the claims have merit. prejudice and sought a mandatory award of attorney’s See Jelinek v. Casas, 328 S.W.3d 526, 538–40 & n. 9 fees.4 Both sides submitted briefing on the merits of (Tex.2010); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, appellees’ objections. Following a hearing at which the 52 (Tex.2002) (per curiam); American Transitional Care parties presented argument, the district court sustained Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 appellees’ objections but granted the Heberts a thirty-day (Tex.2001). Although these requirements do not require a extension to cure any deficiencies.5 plaintiff to marshal all of his or her proof or to present expert testimony in a form that would be admissible at Within the extension period, the Heberts served a trial, see Jelinek, 328 S.W.3d at 539–40 & n. 9, they do supplemental report from White. Contending that White’s necessitate that “the expert must explain the basis for his supplemental report had failed to cure the deficiencies in statements to link his conclusions to the facts” and not his original report, appellees again moved to dismiss the merely state conclusions. Id. (quoting Wright, 79 S.W.3d Heberts’ suit with prejudice.6 The Heberts filed a response at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 joining issue regarding the sufficiency of the two reports (Tex.1999))); see also id. at 539–40 (observing, with and also asserting that chapter 74’s expert-report respect to the causation element, “the expert must ... requirement violates various protections of the U.S. or explain, to a reasonable degree, how and why the breach Texas constitutions. Following a hearing, the district court caused the injury based on the facts presented”). This is granted appellees’ motion to dismiss. Subsequently, after so, in the supreme court’s view, because “ ‘[a] report that hearing evidence, the district court awarded appellees merely states the expert’s conclusions about the standard attorney’s fees as required by chapter 74,7 and this order or care, breach, and causation’ does not fulfill the two also served to make the court’s prior dismissal order final. purposes of a good-faith effort.” Id. at 539 (quoting The Heberts then timely perfected this appeal. Palacios, 46 S.W.3d at 879); see also id. at 540 (expert “must include sufficient detail” regarding how breach caused plaintiff’s injuries “to allow the trial court to determine if the claim has merit”).

ANALYSIS [3] Importantly, the only information relevant to determining whether an expert report complies with these Sufficiency of expert reports requirements is that contained within “the four corners” of In their first issue, the Heberts urge that the district court the report itself. Palacios, 46 S.W.3d at 878. abused its discretion in holding that Dr. White’s report, Consequently, neither the trial court nor this Court may either in its original form or as supplemented, did not infer additional opinions or underlying facts to fill in gaps represent an objective good faith effort to comply with the that the report itself leaves open. See Wright, 79 S.W.3d statutory definition of an expert report. at 53; see also Austin Heart, P.A. v. Webb, 228 S.W.3d [1] [2] 276, 279 (Tex.App.-Austin 2007, no pet.) (this The standards governing the contents of the expert requirement “precludes a court from filling gaps in a report or reports required by chapter 74 are well report by drawing inferences or guessing as to what the established. Chapter 74 defines an “expert report” as “a expert likely meant or intended” (citing Wright, 79 fair summary of the expert’s opinion as of the date of the S.W.3d at 53)). report regarding applicable standards of care, the manner in which the care rendered by the physician or health care

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[4] Our standard of review is likewise limited. Chapter 74 S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111 imposes a mandatory duty on a trial court to grant a S.W.3d 56, 63 (Tex.2003)). motion challenging the adequacy of an expert report “if it [5] appears to the court” that the report does not meet the Applying this deferential abuse-of-discretion standard above-described requirements. See Tex. Civ. Prac. & of review, we cannot conclude that the district court acted Rem.Code Ann. § 74.351(l ) (“A court shall grant a arbitrarily, unreasonably, and without guiding rules and motion challenging the adequacy of an expert report only principles in determining that Dr. White’s reports did not if it appears to the court ... that the report does not supply it sufficient information regarding his opinions represent an objective good faith effort to comply with the concerning standard of care and breach, as they relate to definition of an expert report in Subsection (r)(6).”) the underlying facts, to enable it to determine whether the (emphasis added). *891 Conversely, the trial court is Heberts’ claims had merit. prohibited from granting such a motion unless such noncompliance “appears to the court.” Id. (“A court shall In his initial report, White summarized medical records grant a motion challenging the adequacy of an expert reflecting that Richard Hebert sought treatment at report only if it appears to the court ....”) (emphasis Shannon in the early morning hours of September 7, added). But the linchpin determination that controls which 2008, following a fall in which he injured his neck, and of these two alternative sets of mandatory duties that Richard was placed under Hopkins’s care. According applies—whether “it appears to the court” that the report to White, CT scans and other evaluations revealed that does not comply with the requirements—has been Richard had suffered “a trace traumatic subarachnoid committed to the trial court’s sound discretion by the hemorrhage” (i.e., bleeding on the brain) and a “fracture Legislature. See Palacios, 46 S.W.3d at 877–78. through the superior vertebral body of C6 with a fracture Consequently, we review the trial court’s determination extending through the posterior elements of C5–6.” The for abuse of that discretion. See Wright, 79 S.W.3d at 52 injury “was initially managed in a cervical collar which (citing Palacios, 46 S.W.3d at 878). was changed to a Philadelphia collar and spinal precautions were ordered” within about five hours. That A trial court abuses its discretion when it acts in an same evening, White indicated, Hopkins performed a arbitrary or unreasonable manner without reference to any surgical procedure in which the neurosurgeon *892 fused guiding rules or principles. See id. (citing Downer v. Richard’s C5–C6 vertebrae and implanted “C4 through Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 C7 anterior instrumentation”—a plate over or along the (Tex.1985)). “When reviewing matters committed to the front of Richard’s spine, attached by screws to his bone— trial court’s discretion, a court of appeals may not to provide stability and support while the fracture healed. substitute its own judgment for the trial court’s On the following day, White continued, the medical judgment.” Id. (citing Flores v. Fourth Court of Appeals, records indicated that Richard had showed signs of 777 S.W.2d 38, 41 (Tex.1989)). We do not, in other recovery progress and that “[c]ervical collar is words, examine the contents of Dr. White’s reports and discontinued per Dr. Hopkins’[s] order.” But four days make our own de novo determination as to whether he has later, during the afternoon of September 12, Richard had a provided sufficient information, with respect to his decline in neurological function and subsequent CT scans opinions regarding standard of care, breach, and “confirm[ed] failure of implant fixation at C6 and C7” causation, to (1) inform appellees of the specific conduct and injury to the spinal cord. Although another the Heberts have called into question; and (2) provide a neurosurgeon, Dr. Duarte, operated on Richard thereafter basis for the district court to conclude that the claims have to remove the failed anterior instrumentation and merit. See Jelinek, 328 S.W.3d at 538–40 & n. 9; Wright, implement a different type of fixation method, Richard 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878–79. Instead, ended up with “increased neurological deficit we determine only whether the district court acted (quadriparesis).” arbitrarily, unreasonably, and without reference to guiding rules and principles in determining that the reports failed The medical records, as summarized by White, to provide that information. See Wright, 79 S.W.3d at 52; additionally reflected that Richard had a history of see also Jelinek, 328 S.W.3d at 542 (Jefferson, C.J., “coronary artery disease treated with cardiac stints, dissenting) (“The dividing line between a sufficient and Plavix, and aspirin; cerebrovascular accident [ (i.e., a an inadequate report is impossible to draw precisely. We stroke) ] on two occasions with residual left hand have said, therefore, that the determination must be made paraesthesias [ (tingling or prickling sensations) ] treated in the first instance by the trial court, and review of that with Plavix and aspirin; and hypertension,” as well as decision asks not how an appellate court would have “ankylosing spondylitis,” a degenerative condition of the resolved that issue, but instead whether the trial court spine that causes both brittleness of bones and self-fusion abused its discretion.”) (citing Jernigan v. Langley, 195 of vertebrae.

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However, in the next sentence, within the same Although he did not indicate whether or how Richard’s paragraph, White acknowledged that “clinical situations” other medical conditions impacted the standard of care, could arise in which anterior-only instrumentation, White emphasized his opinion that a patient with coupled with “supplemental protection” other than ankylosing spondylitis warranted special precautions posterior implementation, would be consistent with the when performing surgery to address spinal fracture: standard of care:

In the surgical treatment of cervical spine fractures If the clinical situation in which the complicating ankylosing spondylitis, the prudent spine surgeon finds himself and the surgeon must recognize the unstable nature of these patient allows only inadequate fractures. The instability is contributed to by the long internal fixation, the surgeon is level arms cranial and caudal to the fracture site obligated to protect the patient resulting from the multilevel autofusion and poor bone supplementing the internal fixation quality associated with ankylosing spondylitis. These with external bracing and/or two factors result in increased susceptibility to spine activity limitations. The fractures as a result of relatively minor trauma, greater supplemental protection should instability, and a greater likelihood of neurologic deficit continue until the patient can be resulting from a cervical fracture than found in patients returned to the operating room for with cervical spine fractures and otherwise normal additional internal fixation or the spinal anatomy. fracture becomes stable through healing. The prudent spine surgeon should design a surgical plan of care allowing decompression of the spinal cord, reduction of the traumatic deformity, and immediate Following these statements regarding standard of care, White turned to whether or how Hopkins breached an stabilization of the spinal column to protect the spinal applicable standard. Consistent with the first portion of cord and to facilitate mobilization and nursing care to his explanation of the standard of care, White began by the patient in the short term and healing of the spinal asserting that Hopkins breached the standard by utilizing fusion in the longer term. “anterior only plate/screw fixation”: As for the standard of care regarding the specific means by which these objectives should be achieved, White Dr. Timothy Hopkins’[s] choice of initially suggested that anterior-only internal anterior only plate/screw fixation instrumentation was inconsistent with the standard of care fails to meet the applicable and that some form of posterior internal instrumentation, standard of care. Constrained either additionally or as an alternative to anterior anterior cervical plates function as instrumentation, would instead be preferable: tension band devices and require relative stability of the posterior Over the recent years, the debate of the spinal elements. In extension these community has been in which circumstances fusion devices resist distraction of the with posterior only fixation or fusion with anterior and anterior column. These devices do posterior fixation is appropriate. Anterior not effectively resist flexion forces instrumentation only is predictably inadequate in a and require stable posterior fracture pattern with gross anterior and posterior elements to limit deformity column instability such as Mr. Hebert’s. Adequate resulting from flexion forces. In the treatment of Mr. Herbert’s [sic] fracture requires absence of adequate posterior anterior and posterior instrumentation in order to meet stability, anterior plate/screw the standard of care. constructs typically fail in flexion by plate breakage or, as in this In Mr. Herbert’s [sic] situation, the standard of care case, by screw pullout. Mr. requires fixation stable *893 enough to allow Herbert’s [sic] fracture resulted in mobilization of the patient without loss of fixation significant instability of both the resulting in increased neurological deficits. This goal is anterior and posterior elements at more likely to be achieved by multilevel posterior the C5–6 level. Anterior only internal fixation in addition to at least single level plate/screw fixation, in this setting, anterior internal fixation with fusion at appropriate is predictably doomed to failure. levels. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

But in the next sentence, White seemed to allude to his Among their objections to the sufficiency of White’s previously expressed view that a surgeon could act within initial report, appellees urged that the report did not the standard of care by “supplementing” otherwise represent an objective good faith attempt to comply with “inadequate internal fixation” with some form of chapter 74’s requirements—i.e., that it discussed the “external bracing and/or activity limitations” as an standard of care, breach, and causation with sufficient alternative to posterior surgical fixation: specificity to (1) inform them of the conduct called into question and (2) provide a basis for the district court to The prudent spine surgeon must determine that the claims have merit—because it was recognize the limitations of the internally inconsistent as to the standard of care that various internal fixation constructs applied and did not address whether or not Hopkins available and if necessary must complied with the standard of care through the use of the compensate for the predictable “external bracing and/or activity limitation” White had weaknesses by adequate external contemplated. And these asserted deficiencies, appellees bracing and/or activity limitation. further suggested, in turn undermined any factual bases underlying White’s assertions that the standard of care Then White ended his discussion of breach with the either required Hopkins’s use of anterior-only internal following conclusion: fixation or was breached by his choice not to use posterior interior fixation. The standard of care for the surgical treatment of this fracture In arguing that the district court abused its discretion in requires a multilevel posterior sustaining appellees’ objections, the Heberts emphasize fixation and a fusion in conjunction the portions of White’s initial report focusing on the with anterior fixation and fusion relative merits of anterior versus posterior internal with or without supplemental fixation. But the district court was within its discretion external fixation as was ultimately also to consider White’s recognition of an apparent performed by Dr. Duarte on exception, qualification, or limitation to his broader September 12, 2008. criticisms of anterior fixation: “the clinical situation in which the surgeon finds himself and the patient” may White then offered the following opinions as to causation, “allow[ ] only inadequate internal fixation,” in which case now referencing perceived inadequacies in internal and the standard of care could be met by “supplementing the external fixation without elaborating as to the nature or internal fixation with external bracing and/or activity identity of any of the latter category: limitations.” Along with White’s recognition of this aspect of the standard of care, the court also could have The failure to choose the internal reasonably considered that White never elaborated on the and external fixation construct nature or type of “clinical situation” that would “allow [ ] capable of providing stability to only inadequate internal fixation” or whether such a allow mobilization of the patient, situation did or did not exist in regard to Richard, a prevent spinal displacement, and patient who, as White acknowledged in his report, had a protect the spinal cord is the history of coronary artery disease, two strokes, and proximate cause of Mr. Herbert’s hypertension, not to mention bleeding on the brain from [sic] *894 increased neurologic his fall. The court likewise could reasonably have viewed deficit (quadriparesis). This White’s references to “external bracing” or “activity occurred as a result of the limitations” as an alternative to further internal fixation as constrained anterior plate/screw begging the question as to whether the unspecified “spinal construct’s predictable inability to precautions” Hopkins had ordered, the cervical collar neutralize flexion forces resulting Richard wore following surgery, or other “external in screw pullout at C6 and C7 bracing” or “activity limitations” Hopkins imposed had or levels followed by displacement of had not satisfied the standard of care. the spinal column through the C5–6 fracture/allograft site with In short, we cannot conclude that the district court acted subsequent spinal cord injury and arbitrarily, unreasonably, or without regard to guiding deterioration of neurologic principles in determining that White’s initial report fell function. short of describing the applicable standard or care or breach thereof, as applicable to the underlying facts, with sufficient specificity to provide the court a basis to

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determine that White’s claims have merit. See Jelinek, day extension; (2) the requirements focusing judicial 328 S.W.3d at 538–40 & n. 9; Wright, 79 S.W.3d at 52; analysis of a report’s sufficiency solely on the “four Palacios, 46 S.W.3d at 878–79. And in the face of such corners” of the report and prohibiting courts from deficiencies regarding standard of care and breach, the considering extrinsic evidence of a claim’s merits; and (3) district court would have acted within its discretion in the mandatory requirement that courts dismiss health care determining that any assertions by White to the effect that liability claims with prejudice for failing to serve an anterior-only internal fixation breaches the standard of adequate expert report and also award attorney’s fees. The care or that only posterior internal fixation can suffice Heberts contend that these mechanisms unfairly “single lack an underlying factual basis— *895 i.e., are out” health care liability claimants for unconstitutional “conclusory”—and fail to satisfy chapter 74. See Wright, “disparate treatment,” deprive courts of judicial discretion 79 S.W.3d at 52 (“the expert must explain the basis of his in violation of the separation-of-powers protections of the statements to link his conclusions to the facts” (quoting Texas Constitution, and deprive claimants of access to the Earle, 998 S.W.2d at 890)). courts in violation of due-process or open-courts protections.10 The Heberts urge us to indulge a “fair reading” that White’s opinions regarding unspecified “clinical *896 When reviewing the constitutionality of a statute, situations” refers to a surgeon who is attempting to we begin with a presumption that it is constitutional. perform a combined anterior and posterior procedure but Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–61 gets interrupted by “surgical complications such as delays (Tex.App.-Austin 2006, no pet.) (citing Walker, 111 or blood loss,” and that no such complications arose here. S.W.3d at 66); see also Tex. Gov’t Code Ann. § The dissent similarly relies on inferences or implications 311.021(1) (West 2005). The wisdom or expediency of that such “extraordinary circumstances” were not present. the law is the Legislature’s prerogative, not ours. Smith v. But the problem with these arguments is that White never Davis, 426 S.W.2d 827, 831 (Tex.1968). We presume that actually says any of this in his initial report, and the the Legislature has not acted unreasonably or arbitrarily. established rule is that the report must stand or fall on the Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983) (quoting contents within its “four corners.” Palacios, 46 S.W.3d at Davis, 426 S.W.2d at 831). The party challenging a 878. This requirement, again, “precludes a court from statute’s constitutionality has the burden of proving that filling gaps in a report by drawing inferences or guessing the statute fails to meet constitutional requirements. as to what the expert likely meant or intended.” Austin Walker, 111 S.W.3d at 66. A party must show that a Heart, P.A., 228 S.W.3d at 279 (citing Wright, 79 S.W.3d statute is unconstitutional either on its face or as applied at 53). to that party. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n. 16 (Tex.1995); see also City of Nor did the district court abuse its discretion in holding Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, that such deficiencies were not cured by White’s 240–41 (Tex.2001) (per curiam) (Owen, J., concurring). supplemental report. In his supplement, although White To sustain a facial challenge, the party must show that the reiterates and emphasizes at length his conclusions and statute, by its terms, always operates unconstitutionally. assertions regarding anterior versus posterior fixation Garcia, 893 S.W.2d at 528 n. 16. To sustain an as-applied generally, nowhere does he address the deficiencies challenge, the party must show that the statute is concerning the standard of care and breach that the unconstitutional when applied to that particular person or district court could have perceived in his initial report. set of facts. Id.

We overrule the Heberts’ first issue. We note at the outset that the Heberts face an uphill battle because every court that has considered similar challenges to chapter 74’s expert-report requirement, including this Court, has rejected them. See, e.g., Stockton v. Offenbach, Constitutional claims 336 S.W.3d 610, 618 (Tex.2011) (denying open-courts [6] [7] In their second issue, the Heberts bring forward challenge); Hightower v. Baylor Univ. Med. Ctr., 348 constitutional challenges to chapter 74’s expert-report S.W.3d 512, 521–22 (Tex.App.-Dallas 2011, pet. denied) requirement. While not appearing to quarrel with the (rejecting special-law, vagueness, due-course-of-law, and general concept that the Legislature can validly impose separation-of-powers challenges); Broxterman v. Carson, some form of threshold report requirement for asserting 309 S.W.3d 154, 159 (Tex.App.-Dallas 2010, pet. denied) health care liability claims or other types of civil claims, (rejecting due-process challenge); Gulf Coast Med. Ctr., the Heberts complain about three basic features of chapter LLC v. Temple, No. 13–09–00350–CV, 2010 WL 196972, 74’s expert-report requirement: (1) the fixed deadline of at *6 (Tex.App.-Corpus Christi Jan.21, 2010, no pet.) 120 days to serve an expert report, subject to a single 30– (mem. op.) (rejecting due-process and due-course-of-law

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challenges); Bogar v. Esparza, 257 S.W.3d 354, 372–73 but was the result of an accident or mistake. Id. § (Tex.App.-Austin 2008, no pet.) (same); Wilson–Everett 13.01(d), (g). v. Christus St. Joseph, 242 S.W.3d 799, 802–04 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) The Heberts also assert that “4590i did not mandate what (rejecting separation-of-powers challenge); Ledesma v. had to be included in the contents of the report,” and that Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at “there was no requirements or authorization for the court *9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. to summarily dismiss the case based on the deficiencies in op.) (rejecting due-process and open-courts challenges); the language of the report.” They also contend that parties Thoyakulathu v. Brennan, 192 S.W.3d 849, 855–56 opposing an article 4590i expert report had to “satisfy (Tex.App.-Texarkana 2006, no pet.) (due process does not summary judgment procedures to secure a dismissal with require “exceptions [to the expert-report requirement] that prejudice.” To the contrary, a court considering the would encompass any conceivable complication in order sufficiency of an expert report under article 4590i, as to pass constitutional muster”); Herrera, 212 S.W.3d at under chapter 74, was limited to the “four corners” of the 461–62 (rejecting equal-protection, due-process, due- report. See Palacios, 46 S.W.3d at 878. Likewise, if a course-of-law, and open-courts challenges). Texas courts claimant failed to serve a report, or served a report that also uniformly rejected constitutional challenges to an the trial court concluded did not represent a good faith expert-report requirement under chapter 74’s predecessor effort to comply with the statutory definition of expert statute, article 4590i. See, e.g., Strom v. Memorial report, the trial court was required to dismiss the case Hermann Hosp. Sys., 110 S.W.3d 216, 227 (Tex.App.- with prejudice and award costs and attorney’s fees to the Houston [1st Dist.] 2003, pet. denied) (rejecting due- opposing party. See former art. 4590i, § 13.01(e), (l ), process, equal-protection, and jury-trial challenges); Villa (r)(6); see also Palacios, 46 S.W.3d at 877. v. Hargrove, 110 S.W.3d 74, 81 (Tex.App.-San Antonio 2003, pet. denied) (rejecting due-process and equal- protection challenges); Walker, 111 S.W.3d at 66 (rejecting due-process challenge); *897 Perry v. Stanley, “Disparate treatment ” [8] 83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.) The Heberts contend that chapter 74 irrationally singles (rejecting open-courts challenge); Mocega v. Urquhart, them out for disparate treatment in violation of their rights 79 S.W.3d 61, 64 (Tex.App.-Houston [14th Dist.] 2002, to due process and equal protection. The due-course-of- pet. denied) (same); Gill v. Russo, 39 S.W.3d 717, 718–19 law guarantee of the Texas Constitution provides: “No (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same); citizen of this State shall be deprived of liberty, property, Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo privileges or immunities, or in any manner 2000, pet. denied) (rejecting equal-protection, due- disenfranchised, except by due course of the law of the process, open-courts and free-speech challenges); Schorp land.” Tex. Const. art. I, § 19. Similarly, the federal due- v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736–38 *898 process clause provides: “No state shall make or (Tex.App.-San Antonio 1999, no pet.) (rejecting due- enforce any law which shall abridge the privileges or process, open-courts, and jury-trial challenges).11 immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, The Heberts acknowledge the constitutional validity of without due process of law;....” U.S. Const. amend. XIV, the expert-requirement in chapter 74’s predecessor § 1. While the Texas Constitution is textually different in statute, article 4590i, but attempt to distinguish it as “less that it refers to “due course” rather than “due process,” draconian.” See Act of May 5, 1995, 74th Leg., R.S., ch. Texas courts regard these terms as without substantive 140, § 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985–88, distinction unless and until a party demonstrates repealed and recodified as amended by Act of June 2, otherwise, and the Heberts suggest no reason to construe 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351, 2003 them differently here. See University of Tex. Med. Sch. at Tex. Gen. Laws 847, 875–77 (amended 2005) (current Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (citing version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351). Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, They emphasize differences in the deadlines article 4590i 252–53 (1887)). imposed for serving expert reports and the extent of [9] [10] [11] [12] [13] discretion vested in trial courts to extend deadlines. Under federal and state guarantees of due Specifically, article 4590i allowed claimants to either process, legislation that does not affect a fundamental serve an expert report within 90 days of filing suit or file a right or interest is valid if it bears a rational relationship to cost bond. See former art. 4590i, § 13.01(a). An expert a legitimate state interest. Rylander v. B & A Mktg. Co. ex report was required within 180 days of suit, though the rel. Atl. Richfield Co., 997 S.W.2d 326, 333–34 court could grant a 30–day extension if the failure to serve (Tex.App.-Austin 1999, no pet.) (citing Williamson v. Lee was not intentional or the result of conscious indifference, Optical, 348 U.S. 483, 491, 75 S.Ct. 461, 99 L.Ed. 563

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(1955); Garcia, 893 S.W.2d at 525). Similarly, the Accordingly, the expert-report requirement applies constitutional guarantee of equal protection requires only equally to all physicians and health care providers and that disparate treatment of different classifications be rationally relates to the interests of the State “in ensuring rationally related to a legitimate state purpose, unless the that medical practitioners were not ‘being placed in the classification impinges on the exercise of a fundamental situation of defending frivolous claims at a high cost’ to right or distinguishes between people on a “suspect” the health care system.” Id. (quoting Schorp, 5 S.W.3d at basis, such as race or national origin.12 The Heberts have 737). Recently, the Dallas Court of Appeals adopted the not demonstrated that chapter 74 impinges on a Smalling analysis and applied it to chapter 74. See fundamental or important right or a suspect class. By its Hightower, 348 S.W.3d at 521. terms, chapter 74 is facially neutral and applies to any party asserting a health care liability claim. Consequently, While Smalling and Hightower dealt with special-law in addressing the Heberts’ due-process and equal- challenges, we previously rejected an equal-protection protection claims, we must determine whether chapter 74 challenge to chapter 74’s predecessor for similar reasons. bears a rational relationship to a legitimate state interest Fields v. Metroplex Hosp. Found., No. 03–04–00516–CV, and whether the Legislature had a rational basis in 2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006, differentiating between health care liability claimants and no pet.) (mem. op.) (“[T]he legislature determined that other litigants. “In so doing, we must uphold the law if we medical liability plaintiffs should be treated differently can conceive of any rational basis for the Legislature’s because of the negative effects of the numbers and cost of action.” Owens Corning v. Carter, 997 S.W.2d 560, 581 their lawsuits had on the provision of health care.”). In (Tex.1999). that case, the claimant failed to show article 4590i’s expert-report requirement was not rationally or In enacting chapter 74, the Legislature made a number of substantially related to the government’s interest in findings about the state of the health care system in reducing the aggregate costs of defending against Texas. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § frivolous costs and reducing the costs of insurance and 10.11, 2003 Tex. Gen. Laws 847, 884–85. Specifically, it medical care to all. Id.; see also Bogar, 257 S.W.3d at found the frequency of claims and the amounts paid out 373 (in addressing due-process challenge to chapter 74: by insurers in judgments and settlements had risen “We disagree that it is irrational, in light of the inordinately since 1995, which created a public problem legislature’s goal of curtailing frivolous health care in the availability and affordability of adequate medical liability claims, for it to require that appellees serve an professional liability insurance. Id. § 10.11(a)(1), (3), (4). expert report explaining why or how this outcome was This “crisis” increased costs to physicians, hospitals, actually caused by the conduct of [the defendant], as patients, and the public. Id. § 10.11(a)(5), (7). As a result, opposed to some other person or health care provider.”). the Legislature concluded the “adoption of certain modifications in the medical, insurance and legal The Heberts challenge the Legislature’s rationale as “pre- systems” would “have a positive effect on the rates textual, not supported by empirical data and refuted by charged by insurers for medical professional liability surveys showing there aren’t excessive frivolous medical insurance.” Id. § 10.11(a)(12). In enacting various malpractice suits.” They reason that because the measures, including chapter 74, the Legislature intended Legislature had previously acted to curb frivolous medical to reduce the frequency and severity of health care malpractice claims by enacting article 4590i, its liability claims, decrease costs of claims, and ensure *899 subsequent enactment of chapter 74 reflects intent to that awards were rationally related to costs, but “do so in “single out medical malpractice claimants for special and a manner that will not unduly restrict a claimant’s rights harsh treatment by making it so onerous to file and any more than necessary to deal with the crisis.” Id. § prosecute [a claim] that they or their counsel will not take 10.11(b)(1), (2), (3). the case, or once it is filed, to make it so difficult to prosecute the case that they or their counsel will just give In Smalling v. Gardner, the Fourteenth Court of Appeals up.” The Heberts likewise complain that chapter 74 strips recognized that the “legislature has broad authority to them “of all the rights accorded to other litigants in the create classifications for legislative purposes, so long as Texas Rules of Civil Procedure,” but does not place they have a reasonable basis and operate equally on all similar restrictions on “major corporations like insurance persons within the class.” 203 S.W.3d 354, 371 companies and banks suing for breach of contract, or on (Tex.App.-Houston [14th Dist.] 2005, pet. denied) individual or corporate clients suing attorneys, *900 (addressing special-law challenge to constitutionality of accountants, bankers and brokers.” According to the article 4590i).13 The expert report is required only for Heberts, no compelling state interest or rational basis claims against healthcare providers for departures from supports this “arbitrary” classification. accepted standards of medical or health care or safety. Id.

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[14] [15] We find no merit in the Heberts’ argument that the serving the expert report does not restrict the trial court’s Legislature, evaluating the impact of 4590i, could not power to hear evidence, determine the facts of a case and have rationally concluded that a problem had nonetheless the rights of the parties, apply the law to the facts and to persisted in the cost and availability of health care due to enter a judgment appropriate to the case, any more than a the prevalence of medical-malpractice suits. To the extent statute of limitations does.”). The same is true of chapter the Heberts challenge the underlying policies of chapter 74’s requirement that courts award attorney’s fees upon 74, it is not our place to question the Legislature’s policy dismissal. Hightower, 348 S.W.3d at 522 (rejecting decisions when conducting a rational basis review. See separation-of-powers challenge based on attorneys’ fees Bell v. Low Income Women of Tex., 95 S.W.3d 253, 264 provision because “court still retains its constitutional (Tex.2002) (“The restriction clearly serves [the act’s] authority to determine the reasonable fees based on the purposes, and it is not for us to second-guess the law and the evidence presented by the parties”). The Legislature’s policy choices.”). The Heberts fail to Heberts offer no persuasive authority to the contrary. demonstrate that the Legislature lacked any rational basis Accordingly, we reject the *901 Heberts’ separation-of- in differentiating between health care liability claimants powers constitutional challenge. and other litigants. Accordingly, we reject the Heberts’ “disparate treatment” constitutional challenges.

Right of access [18] [19] [20] [21] Finally, the Heberts argue chapter 74 Separation of powers violates their right of access to the courts and due course [16] [17] For similar reasons, the Heberts’ other of law. The open-courts provision of the Texas constitutional challenges fail. They claim the Legislature Constitution guarantees litigants the right to redress their has impermissibly interfered with the judicial branch grievances. Tex. Const. art. I, § 13; LeCroy v. Hanlon, through chapter 74. The Texas Constitution vests the 713 S.W.2d 335, 341 (Tex.1986). It protects a person judicial power of the State in the courts. Tex. Const. art. from having his or her right to sue cut off by a legislative V, § 1. The separation-of-powers requirement prohibits act before the individual has been afforded a reasonable one branch of government from exercising a power opportunity to discover the wrong and bring suit. Shah v. inherently belonging to another branch. Id. art. II, § 1; Moss, 67 S.W.3d 836, 842 (Tex.2001). It is premised on Wilson–Everett, 242 S.W.3d at 802 (citing General Servs. the rationale that the Legislature has no power to make a Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 600 remedy by due course of law contingent upon an (Tex.2001)). Only when the executive or legislative impossible condition. Hightower, 348 S.W.3d at 522 branch interferes with the functioning of the judicial (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, process in a field constitutionally committed to the control 355 (Tex.1990)); see also Stockton, 336 S.W.3d at 618 of the courts does a constitutional problem arise. Wilson– (rejecting open-courts challenge based on chapter 74’s Everett, 242 S.W.3d at 802. 120–day deadline). To prove that the statute violates the open-courts provision, the Heberts must show that: (1) a Chapter 74’s expert report imposes a threshold procedural cognizable common law cause of action is being requirement aimed at filtering out meritless or premature restricted, and (2) the restriction is unreasonable or lawsuits from proceeding until a claimant makes a good- arbitrary when balanced with the statute’s purpose and faith effort to demonstrate that at least one expert believes basis. Sax, 648 S.W.2d at 666. that a breach of the applicable standard of care caused the [22] claimed injury. Id. at 802–04 (rejecting argument that A claimant bringing an as-applied open-courts chapter 74 “interefere[d] with the judiciary’s challenge to chapter 74 must show that the expert-report constitutional power to decide when and how to render requirements actually prevented him from bringing his judgments” (citing Murphy v. Russell, 167 S.W.3d 835, claims. Herrera, 212 S.W.3d at 461; McGlothlin v. 838 (Tex.2005) (per curiam); Walker, 111 S.W.3d at 66). Cullington, 989 S.W.2d 449, 453 (Tex.App.-Austin 1999, Though the Heberts contend chapter 74 “prohibits the pet. denied). The Heberts failed to prove how the courts from using the rules of procedure and directs the provisions of chapter 74, as opposed to their own failure courts in every respect,” in actuality, the courts retain the to provide an adequate report, prevented them from judicial power to determine whether a timely served pursuing their claims. See Ledesma, 2007 WL 2214650, report is adequate in this regard and to render a decision at *9 (rejecting open-courts challenge when plaintiff accordingly. See Tex. Civ. Prac. & Rem.Code Ann. § failed to serve sufficient reports); see also Stockton, 336 74.351(l ), (r)(6); see also Carrick v. Summers, 294 S.W.3d at 618–19 (rejecting as-applied open-courts S.W.3d 886, 891 (Tex.App.-Beaumont 2009, no pet.) challenge when plaintiff failed to exercise due diligence (“[I]mposing a strict, non-discretionary time limit on in serving expert report on defendant physician).

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and Jelinek v. Casas, 328 S.W.3d 526 (Tex.2010). [23] [24] As discussed above, the Heberts have also failed to Together, those three cases describe and clarify the show chapter 74 is unreasonable or arbitrary when standards by which courts are to evaluate an expert report. balanced with the statute’s purpose and basis. Health care Because those standards are appropriately set forth in the liability claims require expert testimony at trial. See majority opinion, I will not repeat them all. But it is Smalling, 203 S.W.3d at 371. The expert-report crucial to remember that all that is necessary to avoid requirement “ ‘does not violate the open-courts provision dismissal is that the report represent a “good faith effort” by requiring an expert report sooner rather than later in to comply with the statutory definition of an expert report, the litigation.’ ” Id. (addressing article 4590i (quoting which in turn requires only that the report provide “a fair Mocega, 79 S.W.3d at 64)); see also Gill, 39 S.W.3d at summary of the expert’s opinions” regarding standard of 718–19 (article 4590i expert-report requirement did not care, breach, and causation. Most important, the supreme violate open-courts provision because plaintiff raising court has defined “good faith effort” as “one that provides medical negligence claim required to prove claim by information sufficient to (1) ‘inform the defendant of the competent expert testimony to avoid summary judgment specific conduct the plaintiff has called into question,’ and/or prevail at trial); Bankhead v. Spence, 314 S.W.3d and (2) ‘provide a basis for the trial court to conclude that 464, 466 (Tex.App.-Waco 2010, pet. denied) (“This Court the claims have merit.’ ” Jelinek, 328 S.W.3d at 539 and others have determined that the expert-report (quoting Wright, 79 S.W.3d at 52). I believe the report in requirement itself does not violate the open-courts the present case easily meets that test. guarantee because it ‘is rationally related to the purpose of the statute to discourage frivolous malpractice suits.’ ” The first prong of the good-faith test is that the report (quoting Powell v. Clements, 220 S.W.3d 138, 140 must “inform the defendant of the specific conduct the (Tex.App.-Waco 2007, pet. denied))); Fields, 2006 WL plaintiff has called into question.” In this regard, the 2089171, at *4 (holding report requirement not so expert report in this case could not be clearer: the standard onerous that it “effectively deprived the litigant of access of care requires that a spinal fracture complicated by pre- to the court”).14 existing ankylosing spondylitis must be treated by posterior internal fixation, either alone or in combination *902 [25] [26] The Heberts have failed to demonstrate a with anterior internal fixation, not by anterior fixation constitutional defect in chapter 74’s expert-report alone, as was done by the defendant physician here. By requirement.15 Accordingly, we overrule their second my count, the medical expert’s report contains no less issue.16 than nine separate statements and/or explanations of this requirement, four in his original report and five more in his supplemental report.

• “Anterior instrumentation only is predictably CONCLUSION inadequate in a fracture pattern with gross anterior and posterior column instability such as Mr. Having overruled the Heberts’ issues on appeal, we affirm Hebert’s. Adequate treatment of Mr. Herbert’s the district court’s judgment. fracture requires anterior and posterior instrumentation in order to meet the standard of care.”

• “Dr. Timothy Hopkins’ choice of anterior only *903 Jones, C.J., dissent. plate/screw fixation fails to meet the applicable standard of care.” J. WOODFIN JONES, Chief Justice, dissenting. • “In the absence of adequate posterior stability, Because I believe the expert report in this case represents anterior plate/screw constructs typically fail in a good-faith effort to comply with the statutory definition flexion by plate breakage or, as in this case, by screw of an expert report, I respectfully dissent. pullout.... Anterior only plate/screw fixation, in this setting, is predictably doomed to failure.” The three significant Texas Supreme Court opinions that • “The standard of care for the surgical treatment of address the issue of determining the adequacy of an this fracture requires a multilevel posterior fixation expert report are American Transitional Care Centers of and a fusion in conjunction with anterior fixation and Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex.2002);

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fusion with or without supplemental external performing a multilevel posterior fixation....” instrumented fusion caused permanent and irreversible spinal • “Dr. Hopkins performed an anterior (front) only cord injury when the screw plate and screw fixation.... The standards of care predictably pulled out in the post governing a prudent surgeon require that he not perioperative period.... When the perform anterior only fixation with plate and screw pulled out of the vertebral screws....” segments of C–6 and C–7, the C–5 vertebral body was allowed to • “The standards of care governing a prudent surgeon move on C–6 resulting in cord require that he perform a multilevel posterior compression. The screw instrumented fusion alone or in conjunction with an predictably failed because the anterior instrumented fusion....” anterior only approach was insufficient in the absence of *904 • “My opinion is that Dr. Hopkins breached the inherent or surgically created standard of care by performing a multi-level anterior posterior element stability, to only fusion and fixation with plate/screws without stabilize the fracture and resist also performing a multi-level posterior fusion and deformation due to flexion forces. fixation with instrumentation.” When the screws failed, the vertebral segments moved resulting • “The factual basis for this opinion is that a prudent in cord compression. As a result, surgeon following the standards of care would not Mr. Hebert is now a quadraparetic, have performed an anterior only fusion with meaning he is nearly completely instrumentation to attempt to stabilize this very paralyzed from the chest down. If, unstable fracture but would have performed an instead of the anterior only surgery, anterior instrumented fusion with plates/screws and a Dr. Hopkins had performed an multilevel posterior instrumented fusion or a anterior and posterior instrumented multilevel posterior instrumented fusion alone.” fusion, like Dr. Duarte did on • “[P]erforming an anterior only fusion with 9/12/08, it is highly probable the instrumentation without also performing the anterior implants would not have posterior fusion and fixation was a breach of the failed as they did, the resulting cord standard of care because the standards of care require compression would have been performing both procedures to adequately stabilize avoided and Mr. Hebert would not the very unstable fracture and anterior only surgery have sustained his spinal cord was doomed to fail....” injury and paralysis.

There can be no doubt what conduct is being called into In the face of the expert report’s highly detailed question. explanation of all of the elements required by Palacios, Wright, and Jelinek, the majority holds that a single The second prong of the supreme court’s good-faith sentence from the original report was so “internally definition is that the report must “provide a basis for the inconsistent” as to the applicable standard of care that all trial court to conclude that the claims have merit.” Here, of the report’s detailed explanations and opinions were the expert report goes into great detail in explaining the vitiated: standard of care, why the actions of the defendant physician constituted a breach of the standard, and “how If the clinical situation in which the and why the breach caused the injury based on the facts surgeon finds himself and the presented.” Jelinek, 328 S.W.3d at 539–40. The report patient allows only inadequate does not contain mere conclusions of the expert. Quite the internal fixation, the surgeon is contrary. As to causation, for example, the report explains obligated to protect the patient at length the process by which the breach of the standard supplementing the internal fixation of care resulted in the plaintiff’s paralysis: *905 with external bracing and/or activity limitations. My opinion is that performing an anterior only fusion with There are several things to note about this sentence. First, instrumentation without also it does not say that anterior only internal fixation could © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Hebert v. Hopkins, 395 S.W.3d 884 (2013)

ever meet the standard of care in treating a patient with during discovery and possibly trial, not as part of a the conditions existing here. Indeed, the sentence does not gatekeeper effort to deter frivolous lawsuits. This is explicitly reference anterior internal fixation at all. It is especially true in light of the fact that the medical records simply a general reference to a hypothetical situation in available to the expert in preparing his report may not which “inadequate internal fixation” is, temporarily, the have reflected whether any such extraordinary only available option under some presumably circumstances existed at the time of the surgery.1 To extraordinary circumstances. Second, whatever the require a report to negate possible defenses at this stage of general references to “clinical situation” and “inadequate the litigation creates an extra-statutory burden and is internal fixation” mean, the report goes on to specify that unfair to both the plaintiff and the medical expert. the defendant breached the standard of care in this case, as to this patient. This is an implicit statement that, to the I believe the expert report in this case constituted a good- best of the expert’s knowledge, there were no faith effort to comply with the definition of an expert extraordinary circumstances in this case. Third, and report, as required by the applicable statutes and supreme perhaps most important, the possible existence of court precedent. Accordingly, I respectfully dissent. extraordinary circumstances that might—or might not— justify the defendant physician’s temporary use of anterior only internal fixation is a matter to be fleshed out

Footnotes 1 The parties have advised us that Richard Hebert died shortly after the Heberts perfected their appeal. As contemplated by rule 7.1 of the rules of appellate procedure, the parties have proceeded on appeal as if all parties are alive, and so have we. See Tex.R.App. P. 7.1(a)(1). 2 See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West 2011) (“In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”). In the absence of material intervening substantive changes, we have cited the current version of chapter 74 for convenience. 3 See id. (“Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.”). 4 See id. § 74.351(b) (“If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall ... enter an order that: (1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.”); see also id. § 74.351(c) (recognizing that “an expert report has not been served within the period specified by Subsection (a)” when “elements of the report are found deficient”). 5 See id. § 74.351(c).

6 See id. § 74.351(b), (c).

7 See id. § 74.351(b)(1).

8 See id. § 74.351(r)(6). Chapter 74 also imposes requirements regarding the qualifications of the “expert” who may prepare an “expert report,” see id. § 74.351(r)(5), but appellees have not disputed that White meets those standards here. 9 Id. § 74.351(l ).

10 The Heberts acknowledge that Richard’s death during the pendency of this appeal may have terminated his open-courts claim. “[W]rongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either.’ ” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 903 (Tex.2000) (quoting Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex.1995)). The Texas Supreme Court also has declined to rule on an open-courts argument in a similar situation when the claimant died during the pendency of the appeal. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (per curiam).

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While we have similar reservations, we will address the Heberts’ open-courts argument to the extent its substance implicates due-process and due-course-of-law protections they have also raised. See, e.g., Bogar v. Esparza, 257 S.W.3d 354, 370 n. 6 (Tex.App.-Austin 2008, no pet.) (noting open-court protections not directly implicated in statutory wrongful-death and survivor action before conducting similar due-process analysis). 11 In their reply brief, the Heberts attempt to distinguish some of these cases on the basis that they involved “a complete failure to file an expert report,” instead of “addressing the legislature’s restriction placed on the courts in deciding the issue” of a report’s sufficiency. However, Texas courts, including this Court, have rejected constitutional challenges where, as here, an expert report was served, but found deficient. See, e.g., Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520 (Tex. App.-Dallas 2011, pet. denied) (upholding dismissal of deficient reports); Ledesma v. Shashoua, No. 03–05–00454–CV, 2007 WL 2214650, at *7–8 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem. op.) (same). 12 Classifications that impinge upon the exercise of a fundamental right or distinguish between people on a suspect basis (i.e., race, national origin, and alienage) “are subject[ ] to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (plurality opinion). When a statute burdens a sensitive class or impinges on an important right, the statute is subject to an intermediate level of scrutiny, which requires a showing that the statute is substantially related to an important state interest. Id. at 440–41, 105 S.Ct. 3249. 13 Though the Heberts did not explicitly claim chapter 74 was an unconstitutional special law prohibited by the Texas Constitution, many of their complaints track arguments raised by parties who have raised such claims. Accordingly, we find cases addressing special-law challenges instructive. 14 The Heberts also argue that chapter 74 “effectively revives the general demurrer practice which permitted judges to dismiss cases on the pleadings.” They argue that summary judgment is the preferred method for defendants to obtain a dismissal on the merits. Our rules of procedure prohibit the use of general demurrers. Tex.R. Civ. P. 90. However, “[w]hen a rule of procedure conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute....” Johnstone v. State, 22 S.W.3d 408, 409 (Tex.2000) (per curiam). The current version of chapter 74 was passed in 2003 and amended in 2005; rule 90 was approved in 1940 and amended in 1980. Thus, to the extent chapter 74 and rule 90 conflict, chapter 74 controls. See Mitchell v. Berry, No. 05–06–01328–CV, 2007 WL 4111923, at *4 (Tex.App.-Dallas Nov. 20, 2007, pet. denied) (mem. op.) (rejecting argument Tex. Civ. Prac. & Rem.Code Ann. § 13.001 allowing for dismissal in inability-to- pay cases was a general demurrer in contravention of Rule 90); see also Smalling v. Gardner, 203 S.W.3d 354, 367 n. 8 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (distinguishing dismissal under general demurrer from dismissal for failure to serve expert report). 15 The Heberts make passing reference to infringement of their right to trial by jury, but provide no authority or argument in support of any challenge based on that provision that is distinct from their other arguments. To the extent the Heberts intended to advance a distinct challenge based on their right to jury trial, it too would fail. The right to a jury trial is not an absolute right in civil cases, but is subject to certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 738 (Tex.App.-San Antonio 1999, no pet.) (citing Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344, 346 (Tex.Civ.App.-Dallas 1968, no writ)). “Imposing the requirement to file an expert report and the failure to meet that requirement allows the trial court to dismiss the case. This dismissal is not based on the merits, but merely operates to dismiss the case on a procedural requirement which is directly related to the statute’s purpose of limiting the number of frivolous suits.” Id. (addressing article 4590i (citing Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 149 (Tex.1982) (holding that failure of plaintiff to fulfill bonding requirement for challenging school board election did not deny taxpayer right to jury trial on merits))). 16 The Heberts point to decisions from other jurisdictions that, in their view, struck down expert-report requirements similar to chapter 74 based on constitutional provisions analogous to the protections on which they rely here. See, e.g., Putman v. Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 216 P.3d 374, 378–79 (2009) (law requiring certificate of merit from expert at time of filing violated separation of powers and right of access as it cut off rights of discovery and abrogated pleading requirements in rules of procedure); Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (law requiring certificate of merit violated separation of powers); Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415, 421 (2007) (law requiring expert affidavit within 30 days of suit violated separation of powers); Zeier v. Zimmer, Inc. 152 P.3d 861, 873 (Okla.2006) (law requiring affidavit of merit with petition barred right of access). They also acknowledge that courts in at least two jurisdictions upheld laws similar to chapter 74. See McAlister v. Schick, 147 Ill.2d 84, 167 Ill.Dec. 1021, 588 N.E.2d 1151, 1157–58 (1992); Mahoney v. Doerhoff Surgical Servs. Inc., 807 S.W.2d 503, 512–13 (Mo.1991). Additionally, they favorably cite cases from other jurisdictions that upheld similar laws “so long as the Legislature [does] not direct[ ] the Courts how to decide the legitimacy of the case.” Texas decisions regarding chapter 74 are consistent with that reasoning. See, e.g., Wilson–Everett v. Christus St. Joseph, 242 S.W.3d 799, 803 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (rejecting argument that chapter 74 “interfere[d] with the judiciary’s constitutional power to decide when and how to render judgments”). In any event, cases from other jurisdictions have no precedential value for this Court. Instead, we are bound to follow the Supreme Court of Texas and

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our own precedent, as well as the persuasive cases of our sister courts. Texas authorities have consistently rejected constitutional challenges similar to those advanced by the Heberts. 1 Medical issues, like legal ones, are seldom black and white. One can imagine a hypothetical conversation between a plaintiff’s attorney and the plaintiff’s medical expert, in which the expert says something like, “In the overwhelming majority of cases like this, the standard of care is X. But I have to be candid: in a very small percentage of such cases, extraordinary circumstances may call for a different treatment approach. Nothing in the medical records I have seen indicates that such extraordinary circumstances existed in this case, but I would not be completely honest if I did not at least mention that possibility.”

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*529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez, L.L.P., McAllen, for Michael T. Jelinek, M.D. 328 S.W.3d 526 Supreme Court of Texas. John N. Mastin, San Antonio, Francisco J. Rodriguez, Michael T. JELINEK, M.D. and Columbia Rio Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco Grande Healthcare, L.P. d/b/a Rio Grande Casas. Regional Hospital, Petitioners, Mike A. Hatchell, Sarah B. Duncan, Elissa Gail v. Underwood, Locke Lord Bissell & Liddell, LLP, Austin, Francisco CASAS and Alfredo DeLeon, Jr., as Raul Javier Guerra, Green, DuBois & Guerra, San Personal Representatives of the Estate of Eloisa Antonio, Susan A. Kidwell, Locke Lord Bissell & Casas, Deceased, Respondents. Liddell, LLP, Austin, for Columbia Rio Grande No. 08–1066. | Argued Feb. 18, 2010. | Decided Dec. Healthcare, L.P. 3, 2010. Opinion

Synopsis Justice GUZMAN delivered the opinion of the Court, in Background: Patient’s surviving family members which Justice HECHT, Justice WAINWRIGHT, Justice brought medical malpractice action against hospital and MEDINA, Justice JOHNSON, and Justice WILLETT physician, arising out of treatment of patient at hospital. joined, and in which Chief Justice JEFFERSON, Justice Following non-suiting of physician, and following jury GREEN, and Justice LEHRMANN joined as to Parts I trial, the 275th District Court, Hidalgo County, Juan R. and II.A. Partida, J., entered judgment for family members. Hospital and physician appealed. The Corpus Christi When circumstantial evidence is consistent with several Court of Appeals, 2008 WL 2894889, affirmed. Hospital possible medical conclusions, only one of which and physician petitioned for review. establishes that the defendant’s negligence caused the plaintiff’s injury, an expert witness must explain why, based on the particular facts of the case, that conclusion is Holdings: The Supreme Court, Guzman, J., held that: medically superior to the others. If the expert fails to give any reason beyond an unsupported opinion, the expert’s [1] testimony is legally insufficient evidence of causation. In lay testimony of family members did not present some evidence in support of finding that hospital’s alleged this case, we determine whether legally sufficient negligence caused patient’s additional pain and suffering; evidence supports the jury’s verdict in favor of the estate of Eloisa Casas1 against Rio Grande Regional Hospital [2] (the Hospital).2 Following her admission to the Hospital expert testimony did not present some evidence in support of finding that hospital’s alleged negligence with abdominal pain, doctors placed Casas on antibiotics caused patient’s additional pain and suffering; and used to treat and prevent certain intra-abdominal infections. Two days later she underwent major [3] abdominal surgery and continued on the antibiotics for expert report was conclusory with regard to causation and, thus, was deficient. another five days, but the Hospital allowed the prescriptions to lapse for four-and-a-half days. The Hospital admits it should have continued the antibiotics Reversed and rendered in part; reversed and remanded in but denies that the lapse caused Casas any additional pain. part. We hold that the Casases failed to present legally sufficient evidence that Casas suffered from an infection Jefferson, C.J., dissented in part, and filed opinion in the omitted antibiotics would have treated. Accordingly, which Green and Lehrmann, JJ., joined. we reverse the court of appeals’ judgment and render judgment that the Casases take nothing.3 Lehrmann, J., filed opinion dissenting in part. In a separate petition, Dr. Michael Jelinek, one of Casas’s treating physicians sued by the Casases, argues that the Attorneys and Law Firms trial court should have granted his motion for sanctions and dismissal because the Casases’ expert report was deficient. We agree and hold that an award of attorney’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

fees is proper. Therefore, we reverse and remand to the on July 23, he informed Casas and then prescribed trial court for an award of attorney’s fees and costs. different antibiotics, Levaquin and Vancomycin. On July 25, after a CAT scan showed no abscess, Dr. Garcia– Cantu removed the drain. Casas left the Hospital on August 23, but she returned in early September and died two months later. *530 I. Background In May 2003, several members of Casas’s family, In 2000, Eloisa Casas was diagnosed with colon cancer including her husband and son, filed suit against the and underwent surgery, radiation, and chemotherapy. A Hospital, Dr. Garcia–Cantu, and Dr. Jelinek. The year later, doctors told her that the cancer appeared to be plaintiffs claimed that the defendants’ negligence caused in remission, and she thought she was cured. But on July Eloisa Casas to “suffer grievous embarrassment and 10, 2001, she was admitted to the Hospital with humiliation, as well as excruciating pain the remainder of abdominal pains; she also had a fever and a mildly her life which she would not have suffered to such degree elevated white-blood-cell count, potentially indicating an or extent if properly diagnosed, treated and cared for.” infection. To treat this possible infection, her surgeon and The plaintiffs sought to recover damages for Casas’s primary physician, Dr. Carlos Garcia–Cantu, consulted injuries and mental anguish. They twice amended their with an infectious disease specialist at the Hospital, Dr. petition, ultimately leaving the Casases as the sole Michael Jelinek, who on July 11 prescribed two plaintiffs. medications, Maxipime (a broad-spectrum antibiotic), and Flagyl (an antibiotic used to treat anaerobic bacteria). *531 As required by former article 4590i § 13.01 of the Medical Liability and Insurance Improvement Act, see The Hospital performed several diagnostic tests, which TEX.REV.CIV. STAT. art. 4590i § 13.01,5 the Casases revealed abnormal collections of fluid in Casas’s filed an expert report within 180 days of filing the original abdomen. On July 13, she underwent major abdominal petition. In the report, Dr. John Daller opined that Dr. surgery during which Dr. Garcia–Cantu discovered that Garcia–Cantu and Dr. Jelinek were negligent in failing to “fairly extensive” metastatic cancer had perforated discover that the antibiotics were not being given to Casas Casas’s colon and allowed material to leak into her and that within “reasonable medical probability” this abdominal cavity, causing an intra-abdominal abscess. Dr. negligence resulted in a prolonged hospital stay and Garcia–Cantu drained the abscess, repaired Casas’s colon, increased pain and suffering. Dr. Jelinek later filed a and inserted a Jackson–Pratt drain to prevent further motion for sanctions and dismissal under article 4590i § problems. Following the surgery, Dr. Garcia–Cantu 13.01(e), alleging that the expert report was deficient continued the Maxipime and Flagyl prescriptions, and a because, among other things, it failed to explain any culture of the removed abscess revealed an E. coli causal connection between the negligence and the infection, which is effectively treated with Maxipime. purported injury. The trial court denied the motion. Casas received Maxipime and Flagyl for another five Before trial began, however, the Casases nonsuited Dr. days, but hospital staff inadvertently failed to place a Jelinek and Dr. Garcia–Cantu. prescription renewal form on Casas’s chart, resulting in a four-and-a-half-day period between July 18 and 23 during At trial, Dr. Daller testified as the Casases’ medical which Casas did not receive either medication. Even so, expert. During direct examination, he analyzed the Casas never tested positive for E. coli again and a culture Hospital’s daily patient notes regarding Casas and of the incision site on July 18 instead grew Candida (a identified the significant events. He noted changes in fungus) for which Diflucan (an antifungal) was Casas’s vital signs on July 21 and 22, such as increased prescribed. Then, on July 21, a second culture from a heart rate and temperature, inflammation, and tenderness blood sample grew coagulase-negative staph, for which of the surgery site. Dr. Daller stated that “in medical Vancomycin was prescribed.4 Neither Maxipime nor probability” there was an infection in the abdomen, but on Flagyl would have treated the Candida or coagulase- cross-examination he admitted that “there was no negative staph infection. objective evidence present to demonstrate that intra- abdominal infection.” When reviewing the patient notes On July 23, Dr. Garcia–Cantu noted an abscess in the for July 24, which noted the presence of a foul smell, he wound, which he drained by removing the staples and suggested that the smell was consistent with an anaerobic opening the wound. The next day, records indicate that a infection that would be difficult to culture because foul smell was emanating from the wound site, and anaerobic bacteria die when exposed to air. Dr. Carl hospital staff brought fans into the room to dissipate the Berkowitz, the Hospital’s expert, offered several other odor. When Dr. Jelinek learned of the lapsed prescription

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explanations for the smell, such as the Candida infection A. Sufficiency of the Evidence [1] or dying tissue. The facts of this case are unfortunate: a woman with advanced colon cancer underwent surgery to repair her The Casases also called Casas’s relatives to testify about cancer-perforated and infected colon, and in the course of her condition. Consistent with Dr. Daller’s testimony, treatment for her many symptoms the Hospital failed to Casas’s son linked the smell with the opening of the renew her antibiotic prescriptions for a four-and-a-half- wound to drain the abscess: “The odor that I noticed was day period. The Hospital admits it should have continued after they had taken out the staples on her incision, and the antibiotics. Even so, the plaintiff bears the burden to one day that I went to see her as soon as they opened the prove that the negligence caused an injury: “[A]t trial the door the whiff of this putrid smell just engulfed me.” He plaintiff must establish two causal nexuses in order to be also testified that Casas was upset upon learning that she entitled to recovery: (a) a causal nexus between the had not received the antibiotics but was even more upset defendant’s conduct and the event sued upon; and (b) a when the incision had to be opened and drained: “Well, causal nexus between the event sued upon and the after she was told and I was told that she wasn’t getting plaintiff’s injuries.” Morgan v. Compugraphic Corp., 675 antibiotics, like I said, she was upset. What really upset S.W.2d 729, 731 (Tex.1984). Only the second nexus is at her more was when they had to—they had to take out the issue here. staples out of her incision, and they had to open her [2] [3] [4] incision up again.” Casas’s husband testified that, while In City of Keller v. Wilson, we considered at she was upset and did not trust the nurses or doctors after length the parameters of legal sufficiency review, quoting learning of the lapsed prescription, “she was still fighting. with approval Chief Justice Calvert’s seminal article on She ... wanted to beat this cancer she had.” The son the topic: testified that Casas did not lose hope until she witnessed the events of September 11, 2001, following her re- “No evidence” points must, and admission to the Hospital: “That’s why I remember that may only, be sustained when the day so vividly in my mind because that was the turning record discloses one of the point in my mom. She seemed to just give up, not fight, following situations: (a) a complete not want to fight anymore like she used to. And that was a absence of evidence of a vital fact; very, very sad day.” (b) the court is barred by rules of law or of evidence from giving *532 The jury found that the negligence of the Hospital, weight to the only evidence offered Dr. Jelinek, and Dr. Garcia–Cantu proximately caused to prove a vital fact; (c) the Casas’s injury. The jury apportioned ninety percent of the evidence offered to prove a vital negligence to the Hospital, five percent to Dr. Jelinek, and fact is no more than a mere five percent to Dr. Garcia–Cantu. It awarded $250,000 in scintilla; (d) the evidence damages to the Casases as compensation for Casas’s pain establishes conclusively the and mental anguish. opposite of the vital fact.

The Hospital appealed, arguing that the evidence was 168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W. legally and factually insufficient to prove causation or Calvert, “No Evidence” and “Insufficient Evidence” damages for mental anguish. Dr. Jelinek also appealed, Points of Error, 38 TEX. L.REV. 361, 362–63 (1960)). challenging the trial court’s denial of his motion for “When the evidence offered to prove a vital fact is so sanctions and dismissal. The court of appeals affirmed on weak as to do no more than create a mere surmise or all issues. ––– S.W.3d ––––. suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The same is true when the evidence equally supports two alternatives: “ ‘When the circumstances are equally II. Analysis consistent with either of two facts, neither fact may be inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting We address in turn the two issues raised in this appeal: the Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 legal sufficiency of the causation evidence and the S.W.2d 801, 805 (Tex.1991)). When considering such sufficiency of the Casases’ expert report. cases, “we must ‘view each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances,’ ” id. at 813–14 (quoting Lozano v. Lozano, 52 S.W.3d 141, 167 (Tex.2001) (per curiam)),

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and we “must consider not just favorable but all the recognized treatment, unless he proves by a doctor of the circumstantial evidence, and competing inferences as same school of practice as the defendant: (1) that the well.” Id. at 814. diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate [5] To meet the legal sufficiency standard in medical cause of the patient’s injuries.”). We have allowed lay malpractice cases “plaintiffs are required to adduce evidence to establish causation “in those cases in which evidence of a *533 ‘reasonable medical probability’ or general experience and common sense will enable a ‘reasonable probability’ that their injuries were caused by layman to determine, with reasonable probability, the the negligence of one or more defendants, meaning causal relationship between the event and the condition.” simply that it is ‘more likely than not’ that the ultimate Morgan, 675 S.W.2d at 733 (citing Lenger v. Physician’s harm or condition resulted from such negligence.” Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399– must be taken to avoid the post hoc ergo propter hoc 400 (Tex.1993) (citations omitted). Thus, we examine the fallacy, that is, finding an earlier event caused a later record to determine if the Casases presented legally event merely because it occurred first. Stated simply, sufficient evidence that “in reasonable medical correlation does not necessarily imply causation. As we probability” the Hospital’s negligence caused Casas noted in Guevara, “[e]vidence of an event followed additional pain and suffering. closely by manifestation of or treatment for conditions which did not appear before the event raises suspicion When distilled to its essence, the Casases’ claim is that the event at issue caused the conditions. But predicated on the presence of an infection—treatable by suspicion has not been and is not legally sufficient to the lapsed antibiotics—that caused Casas pain and mental support a finding of legal causation.” 247 S.W.3d at 668. anguish above and beyond that caused by the cancer, the [10] surgery, and the other known infections. The absence of When lay testimony is credited as evidence of an infection treatable by Maxipime and Flagyl would causation, it usually highlights a connection between two undermine the Casases’ claim, for then the prescription events that is apparent to a casual observer. In Morgan, lapse would amount to an unfortunate, but harmless, for example, a previously healthy employee, upon occurrence. The Hospital argues that the Casases exposure to leaking chemicals, suffered watering of the presented no evidence that the Hospital’s negligence eyes, blurred *534 vision, headaches, and swelling of the caused such an infection. The Casases’ expert admitted breathing passages. 675 S.W.2d at 733. In such a there is no direct evidence of an anaerobic infection, circumstance, lay testimony sufficed to connect the leaving the jury to consider the circumstantial evidence specific injury to the negligence with no evidence of and make proper inferences from it. In reviewing the causation beyond the leaking chemicals. Id. Likewise in record, we initially decide if jurors can determine Guevara, we stated that determining causation of “certain causation under these facts unaided by expert testimony— types of pain, bone fractures, and similar basic that is, whether lay testimony regarding causation is conditions” following an automobile accident was within legally sufficient. the competence of lay jurors. 247 S.W.3d at 668. But we held that expert testimony was required to prove that a patient’s medical expenses resulted from the accident, noting that “[p]atients in hospitals are often treated for more than one condition brought on by causes 1. Lay Testimony of Causation independent of each other.” Id. at 669. These cases [6] [7] [8] [9] illustrate this basic premise: “[N]on-expert evidence alone Lay testimony may be used as evidence of is sufficient to support a finding of causation in limited causation in certain circumstances, but “[w]hen expert circumstances where both the occurrence and conditions testimony is required, lay evidence supporting liability is complained of are such that the general experience and legally insufficient.” City of Keller, 168 S.W.3d at 812. In common sense of laypersons are sufficient to evaluate the medical malpractice cases, expert testimony regarding conditions and whether they were probably caused by the causation is the norm: “The general rule has long been occurrence.” Id. at 668. that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and The present case does not fall within this rule. Unlike in experience of jurors.” Guevara v. Ferrer, 247 S.W.3d Morgan, an otherwise healthy person did not suddenly 662, 665 (Tex.2007); see also Bowles v. Bourdon, 148 experience health difficulties following the defendant’s Tex. 1, 219 S.W.2d 779, 782 (1949) (“It is definitely negligent conduct when the plaintiff’s symptoms were settled with us that a patient has no cause of action against reasonably attributable to the negligence and to nothing his doctor for malpractice, either in diagnosis or else. Rather, a patient with terminal colon cancer did not

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receive antibiotics for four-and-a-half days following husband and son is evidence of her suffering, but not of major abdominal surgery and after having received the its cause. Thus, we hold that the lay testimony presented medications for eight days. There is no direct evidence by the Casases is legally insufficient to establish that the that she suffered from an infection treatable by the Hospital’s negligence caused Casas additional pain and omitted antibiotics, but there is evidence that she had two suffering. other infections that accounted for all of her symptoms during that time. Given Casas’s medical condition, expert testimony was crucial to link the prescription lapse to an infection causing additional pain and suffering beyond what she would otherwise have experienced. See Kaster v. 2. Expert Testimony Woodson, 123 S.W.2d 981, 983 (Tex.Civ.App.-Austin [11] 1938, writ ref’d) (“What is an infection and from whence The Casases also presented expert testimony regarding did it come are matters determinable only by medical causation. The Casases’ expert, Dr. Daller, testified that experts.”); see also Hart v. Van Zandt, 399 S.W.2d 791, the Hospital’s negligence “in medical probability” caused 792 (Tex.1966) (“In determining negligence in a case Casas additional pain and suffering. He based this opinion such as this, which concerns the highly specialized art of on the presence of an intra-abdominal infection that could treating disease, the court and jury must be dependent on have been treated using Maxipime and Flagyl. Admitting expert testimony. There can be no other guide, and where that no direct evidence indicated such an infection, Dr. want of skill and attention is not thus shown by expert Daller pointed to various circumstantial indicators that evidence applied to the facts, there is no evidence of it suggested an infection. These indicators were primarily proper to be submitted to the jury.”). Casas’s changed vital signs, such as fever and increased heart rate: “Well, given the fact that two to three days The Casases point to testimony by Casas’s husband and after the antibiotics had been mistakingly [sic] stopped son to support their argument that she deteriorated rapidly her fever curve went up and her heart rate went up, to me after discovering she did not receive the antibiotics. But that suggests the presence of on going [sic] infection.”6 this characterization overstates the evidence. While But on cross-examination, he conceded these data were Casas’s husband testified she was upset and did not trust equally consistent with two other infections cultured from her doctors following the discovery, she was still Casas’s incision and blood—Candida and coagulase— determined to fight her cancer. The son also observed negative staph—neither of which is treatable by Casas’s anger and lack of trust but testified that the Maxipime or Flagyl: opening of her wound, which occurred the same day she learned of the lapse, upset her even more. As Dr. Daller Q. Now, Candida, infection of a wound like this, they admitted, Candida likely caused the abscess that required can cause high temperatures. Correct? Dr. Garcia–Cantu to drain the wound. Further, based on his experience at Casas’s bedside, her son pinpointed the A. Fungal infections can cause a high temperature, tragic events of September 11, 2001, and their effect on yes. his mother as the turning point in her mental state. The latter event was some seven weeks after discovery of the Q. It can cause increased heart rate? lapsed prescriptions and after Casas’s discharge from and re-admission to the Hospital. This evidence does not bear A. That is correct. out the Casases’ claim of a marked shift in Casas’s mental resilience following the omission of the medications. Q. And inflammation?

*535 More importantly, Casas’s husband and son were A. That is correct. unable to precisely identify the cause of her suffering. While they could accurately describe her discomfort, they Q. Pain? were unable to say if it was the cancer, the surgery, the other infections, or the lapse that caused it. Even A. That is correct. testimony that Casas suffered after learning of the Q. How about an abscess? omission raises no more than a mere suspicion of causation, and that is not enough, see Guevara, 247 A. It caused or is part of the abscess in that wound S.W.3d at 668, particularly in light of the evidence that that was present, that wound infection that needed to Casas thought she was cured of cancer before the surgery be opened. and then learned that not only was it “back with a vengeance,” it was terminal. The testimony of Casas’s

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Q. So when Doctor Garcia went in on 7/23 ... and defendant’s negligence. The expert must explain why the drained that wound at bedside that abscess was inferences drawn are medically preferable to competing within a reasonable degree of medical probability inferences that are equally consistent with the known caused by the Candida? facts. Thus, when the facts support several possible conclusions, only some of which establish that the *536 A. That was one of the organisms that was defendant’s negligence caused the plaintiff’s injury, the there. It was the organism that was cultured. That is expert must explain to the fact finder why those correct. conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion. See Lenger, .... 455 S.W.2d at 707 (“[E]xpert testimony that the event is a possible cause of the condition cannot ordinarily be Q. ... This coagulase negative staph causes fever? treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal A. Correct. explanations, it becomes more likely than not that the Q. Increased heart rate? condition did result from the event.”); Hart, 399 S.W.2d at 792 (“The burden of proof is on the plaintiff to show A. The fever will cause increased heart rate. that the injury was negligently caused by the defendant and it is not enough to show the injury together with the .... expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of Q. It can cause pain? the doctor. Such evidence has no tendency to show that negligence did cause the injury.”). A. Depending upon the site. Correct. By conceding that Casas’s symptoms were consistent Q. Okay. All of these things can be caused by with infections not treatable by Maxipime or Flagyl, Dr. coagulase negative staph and Candida, which we Daller undermined his conclusion that an undetected know were present 7/18 through 7/23, the time infection was also present. While it is possible that Casas period she did not get antibiotics? did have such an infection, its presence can only be inferred from facts that are equally consistent with the A. That’s correct. Candida and coagulase-negative staph infections. “ ‘When the circumstances are *537 equally consistent with Q. Neither one would have been killed by Maxipime either of two facts, neither fact may be inferred.’ ” City of or Flagyl? Keller, 168 S.W.3d at 813 (quoting Tubelite, 819 S.W.2d A. That’s correct. at 805). Here, objective data—the cultures—support the [12] [13] It is not enough for an expert simply to opine that Candida and staph infections but not the supposed the defendant’s negligence caused the plaintiff’s injury. anaerobic infection.7 The expert must also, to a reasonable degree of medical [14] [15] probability, explain how and why the negligence caused Based on the record evidence, an anaerobic the injury. We have rejected expert opinions not grounded infection cannot be proved or disproved. It is equally in a sound evidentiary basis: “[I]f no basis for the opinion plausible that Casas had such an infection or that she did is offered, or the basis offered provides no support, the not. Dr. Daller opined that she did, but he did not explain opinion is merely a conclusory statement and cannot be why that opinion was superior to the opposite view. Such considered probative evidence, regardless of whether evidence raises no more than a possibility of causation, there is no objection. ‘[A] claim will not stand or fall on which is insufficient. As we said in Bowles v. Bourdon, “ the mere ipse dixit of a credentialed witness.’ ” City of ‘[t]he proof must establish causal connection beyond the San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009) point of conjecture. It must show more than a possibility. (quoting Burrow v. Arce, 997 S.W.2d 229, 235 Verdicts must rest upon reasonable certainty of proof. (Tex.1999)); see also Whirlpool Corp. v. Camacho, 298 Where the proof discloses that a given result may have S.W.3d 631, 637 (Tex.2009) ( “Conclusory or speculative occurred by reason of more than one proximate cause, and opinion testimony is not relevant evidence because it does the jury can do no more than guess or speculate as to not tend to make the existence of material facts more which was, in fact, the efficient cause, the submission of probable or less probable.”). When the only evidence of a such choice to the jury has been consistently condemned vital fact is circumstantial, the expert cannot merely draw by this court and by other courts.’ ” 219 S.W.2d at 785 possible inferences from the evidence and state that “in (quoting Ramberg v. Morgan, 209 Iowa 474, 218 N.W. medical probability” the injury was caused by the 492, 498–99 (1928)).

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when those findings are not supported by credible The Casases argue that the foul smell, which is consistent evidence. When the evidence compels the jury to guess if with an anaerobic infection, is strong evidence of such an a vital fact exists, a reviewing court does not undermine infection. Looking at the patient notes for July 24, Dr. the jury’s role by sustaining a no-evidence challenge. The Daller commented on the smell: evidence in this case—being consistent with an anaerobic infection that was treatable by Flagyl, a fungal infection A. The text says something about drainage to the that was not, or even with dying tissue, cancerous or abdomen with moderate amount of drainage. And it otherwise—did not provide the jury a reasoned basis from says that it is foul smelling. which to infer the presence of a negligence—induced infection. Because the jury could not reasonably infer an .... infection caused by the Hospital’s negligence, we agree with the Hospital that no evidence supports the jury’s Q. The [previous notes] that I remember that we have verdict. gone over didn’t say anything about foul smelling? We understand the Casas family’s predicament and A. That’s correct. They were just described as I recall frustration at the Hospital’s conduct, and we recognize the as being purulent and looking like puss [sic]. difficulty of proving that the lapsed prescriptions caused a Q. What does that mean when it says “foul smelling”? painful infection. But the Casases shouldered that burden and must prove the causal link with reasonable certainty. A. When you have foul smelling, it suggests that the In that quest, the Casases offered the testimony of Dr. organism is an anaerobe. In other words, one of those Daller, but he did not explain why an undetected, bacteria that didn’t need oxygen in order to grow that, anaerobic infection is medically more probable than one for example, Flagyl would treat. based on the known infections and the dying tissue, leaving the jury to guess if the lapsed prescriptions caused Q. Okay. Does that give you clinical evidence that had additional pain and suffering. Without probative medical she been continued on Maxipime and Flagyl that they testimony that the lapse caused—by means of an infection would have had some effect with regards to the treatable by Maxipime and Flagyl—more pain than the condition as we see it on the 24th? cancer, the surgery, and the other infections already inflicted, there is no legally sufficient evidence of A. Well, like I said, most anaerobes are sensitive or causation. Dr. Daller did not provide that causal link; susceptible to Flagyl. And she had previously been on accordingly, we hold that his testimony is legally Flagyl and at this time she is not. So I would have insufficient to support the jury’s verdict. Because the expected that that would be an appropriate antibiotic Casases failed to prove causation, we reverse the that would have covered the organism that’s causing judgment of the court of appeals and render judgment that that foul smell. the Casases take nothing.

Dr. Berkowitz, the Hospital’s expert, offered several other explanations for the smell, including necrotic tissue, dead cancer tissue, and the Candida infection.8 As *538 noted, B. Adequacy of the Expert Report Casas’s son noticed the smell after the incision was [18] [19] In his petition, Dr. Jelinek raises a single issue: opened to drain the abscess, which Dr. Daller admitted whether the trial court abused its discretion by denying was likely caused by Candida. his motion for sanctions and dismissal because the Casases’ expert report was deficient under former article [16] [17] Here again, there are competing explanations for 4590i § 13.01, the statute in effect at the time. See the smell, which amounts to no more than circumstantial TEX.REV.CIV. STAT. art. 4590i § 13.01. Article 4590i evidence of some kind of infection or possibly dying required the report to provide “a fair summary of the tissue. Because there is no direct evidence of the infection expert’s opinions as of the date of the report regarding and the circumstantial evidence is meager, we “must applicable standards of care, the manner in which the care consider not just favorable but all the circumstantial rendered by the physician or health care provider failed to evidence, and competing inferences as well.” City of meet the standards, and the causal relationship between Keller, 168 S.W.3d at 814. Courts should not usurp the that *539 failure and the injury, harm, or damages jury’s role as fact finder, nor should they question the claimed.” Id. § 13.01(r)(6). “If a plaintiff timely files an jury’s right to believe one witness over another. But when expert report and the defendant moves to dismiss because reviewing a verdict for sufficiency of the evidence, courts of the report’s inadequacy, the trial court must grant the need not—indeed, must not—defer to the jury’s findings motion ‘only if it appears to the court, after hearing, that

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the report does not represent a good faith effort to comply Palacios element—it does not give the trial court any with the definition of an expert report in Subsection (r)(6) reasonable basis for concluding that the lawsuit has merit. of this section.’ ” Bowie Mem’l Hosp. v. Wright, 79 See 46 S.W.3d at 879. An expert’s conclusion that “in S.W.3d 48, 51–52 (Tex.2002) (per curiam) (quoting § medical probability” one event caused another differs 13.01(l )). Dismissal for failure to serve an adequate little, without an explanation tying the conclusion to the expert report also carried mandatory sanctions, requiring facts, from an ipse dixit, which we have consistently an award to the defendant of his costs and attorney’s fees criticized. See Pollock, 284 S.W.3d at 818 (citing Burrow, against the plaintiff or the plaintiff’s attorney. See Am. 997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 expert’s simple ipse dixit is insufficient to establish a S.W.3d 873, 877 (Tex.2001) (citing § 13.01(e)). matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.”). Instead, [20] [21] We have defined a “good-faith effort” as one that the expert must go further and explain, to a reasonable provides information sufficient to (1) “inform the degree, *540 how and why the breach caused the injury defendant of the specific conduct the plaintiff has called based on the facts presented. While we have said that no into question,” and (2) “provide a basis for the trial court “magical words” need be used to meet the good-faith to conclude that the claims have merit.” Wright, 79 requirement, mere invocation of the phrase “medical S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879). All probability” is likewise no guarantee that the report will information needed for this inquiry is found within the be found adequate. See Wright, 79 S.W.3d at 53. four corners of the expert report, which need not “marshal all the plaintiff’s proof” but must include the expert’s Under these standards, the Casases’ report is conclusory opinion on each of the three main elements: standard of on causation. It offers no more than a bare assertion that care, breach, and causation. Id. Importantly for this case, Dr. Jelinek’s breach resulted in increased pain and the “report cannot merely state the expert’s conclusions suffering and a prolonged hospital stay. Beyond that about these elements,” but “ ‘the expert must explain the statement, the report offers no explanation of how the basis of his statements to link his conclusions to the breach caused the injury. Again, the plaintiff need not facts.’ ” Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 marshal all of his proof in the report, but he must include (Tex.1999)). “A report that merely states the expert’s sufficient detail to allow the trial court to determine if the conclusions about the standard of care, breach, and claim has merit. Because the Casases’ report lacks any causation” does not fulfill the two purposes of a good- explanation linking the expert’s conclusion to the relevant faith effort. Palacios, 46 S.W.3d at 879. facts, we hold that the trial court abused its discretion by denying Dr. Jelinek’s motion and the court of appeals [22] [23] We review the trial court’s grant or denial of a erred by affirming that ruling.9 See id. at 52. Accordingly, motion for sanctions and dismissal under the abuse-of- we remand the case to the trial court for an award of discretion standard. Palacios, 46 S.W.3d at 877–78. A attorney’s fees and costs10 under former article 4590i § district court “abuses its discretion if it acts in an arbitrary 13.01(e) against the Casases and their counsel.11 or unreasonable manner without reference to any guiding rules or principles.” Wright, 79 S.W.3d at 52 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). *541 III. Conclusion Dr. Jelinek argues that the Casases’ report is deficient in two ways, failing (1) to state the applicable standard of For the foregoing reasons, we reverse the court of care, and (2) to provide more than conclusory statements appeals’ judgment, render judgment that the Casases take of causation. We focus on the latter. Dr. Daller’s report nothing, and remand to the trial court for an award of Dr. concluded that Dr. Jelinek’s breach of the appropriate Jelinek’s attorney’s fees and costs consistent with this standard of care in “reasonable medical probability, opinion. resulted in a prolonged hospital course and increased pain and suffering being experienced by Ms. Casas.” Aside from repeating essentially the same phrase twice more, the report says nothing more regarding causation. The Chief Justice JEFFERSON filed an opinion, dissenting in Casases argue this statement is sufficient to meet the part, in which Justice GREEN and Justice LEHRMANN good-faith requirement. We disagree. joined.

An expert cannot simply opine that the breach caused the Justice LEHRMANN filed an opinion, dissenting in part. injury. Stated so briefly, the report fails the second

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Chief Justice JEFFERSON, joined by Justice GREEN and Dr. Jelinek and the hospital appealed the trial court’s Justice LEHRMANN, dissenting in part. judgment. The hospital complained that the evidence was legally insufficient to support the verdict. Dr. Jelinek We must decide whether an expert report gave a “fair complained that the trial court improperly denied him summary” of the expert’s opinions regarding standard of attorney’s fees, as the expert report was not a good faith care, failure to meet the standard, and the link between effort to comply with statutory requirements. The court of that failure and the patient’s damages. We must consider appeals affirmed, 2008 WL 2894889, *9–*10, 2008 the expert’s opinions “as of the date of the report.” Tex.App. LEXIS 5647, *28–*29 (Tex.App.-Corpus TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6) (repealed Christi July 29, 2008), and the appellants below are now 2003). To do so, we must disregard today’s holding that, petitioners here. I fully join the *542 Court’s rendition of at trial, there was no evidence linking the discontinuation judgment for the hospital. I disagree with the Court’s of antibiotics to increased suffering by Casas. The expert holding as to the doctor. report submitted in this case gave fair notice of a meritorious claim—that the doctor failed to ensure that his patient received antibiotics, thereby increasing her pain and suffering. I would affirm the court of appeals’ II. Good faith effort; fair summary judgment with respect to the doctor. Former article 4590i provided that “[a] court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does I. Background not represent a good faith effort to comply with the definition of an expert report in [the statute].” Eloisa Casas, a patient recently diagnosed with colon TEX.REV.CIV. STAT. art. 4590i § 13.01(l ). “That cancer, was admitted to Rio Grande Hospital for definition requires, as to each defendant, a fair summary abdominal pain. The cancer had perforated her colon, the of the expert’s opinions about the applicable standard of contents of which leaked into her abdominal cavity, care, the manner in which the care failed to meet that causing an abscess. After the doctor drained and standard, and the causal relationship between that failure surgically removed the abscess, he discovered that Casas and the claimed injury.” Am. Transitional Care Ctrs. of had an E. coli infection, for which the doctor prescribed Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) two antibiotics. Although those prescriptions were (citing TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6)). supposed to have been renewed five days later, they Because an expert report is filed long before discovery is lapsed. Casas contends this mistake occurred because the complete, we cannot judge it according to what doctor failed to ensure that hospital staff complied with subsequent discovery reveals or how the evidence his renewal order. During the four days after the develops at trial. The question is whether the report fairly prescriptions expired, Casas’s surgical incision began to summarizes the malpractice elements before the case is emit a putrid odor. She developed several infections in tested in a full adversary process. For that reason, “to addition to E. coli, exacerbating her pain and extending avoid dismissal, a plaintiff need not present evidence in her stay in the hospital. Casas died two months after she the report as if it were actually litigating the merits. The was discharged. report can be informal in that the information in the report does not have to meet the same requirements as the Casas’s estate sued the Hospital and two of the treating evidence offered in a summary-judgment proceeding or at doctors, Dr. Garcia–Cantu and Dr. Jelinek, for negligently trial.” Id. at 879. causing Mrs. Casas “grievous embarrassment and humiliation, as well as excruciating pain the remainder of The report must also give the defendant notice of the her life which she would not have suffered to such degree conduct the plaintiff challenges, and the trial court must if properly diagnosed, treated and cared for....” The trial have a basis to determine whether the claim has merit. Id. court denied Dr. Jelinek’s motion to dismiss the case The dividing line between a sufficient and an inadequate against him. Nevertheless, the estate nonsuited both report is impossible to draw precisely. We have said, doctors more than a year before Casas’s claim against the therefore, that the determination must be made in the first Hospital was tried to a jury. At that trial, the jury found instance by the trial court, and review of that decision the hospital 90% negligent, and each doctor 5% negligent. asks not how an appellate court would have resolved the The trial court rendered judgment against the hospital, issue, but instead whether the trial court abused its and the court’s order non-suiting Dr. Jelinek “with discretion. See, e.g., Jernigan v. Langley, 195 S.W.3d 91, prejudice” merged into that final judgment. 93 (Tex.2006); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003).

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did not abuse its discretion by dismissing the plaintiff’s claim for lack of a good faith effort to summarize the expert’s opinions. III. Dr. Daller’s report Subsequently, in Bowie Memorial Hospital v. Wright, we Dr. Daller is a physician and an expert on intra-abdominal held that the trial court did not abuse its discretion in abscesses and infection. His report states that a doctor concluding that an expert report failed to comply with the treating a patient like Casas must ensure that the statute, as the report did not “establish how any act or antibiotics he prescribes are actually administered. omission of employees of Bowie Memorial Hospital Despite that standard, Dr. Daller states that antibiotics caused or contributed to [the patient’s] injuries.” See prescribed for Ms. Casas were not administered from July Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–53 17 through July 23, even though “[t]here [wa]s no order (Tex.2002) (quoting the expert in that case as speculating, to discontinue the antibiotic therapy.” He concluded that “I do believe that it is reasonable to believe that if the x- Dr. Jelinek breached the standard of care by his “failure to rays would have been correctly read and the appropriate recognize that the antibiotics were not being administered medical personnel acted upon those findings then [the as ordered.” Dr. Daller concludes that “[t]his breach in the plaintiff] would have had the possibility of a better standard of care ..., within reasonable medical probability, outcome.”). We observed that a report must satisfy resulted in a prolonged hospital course and increased pain Palacios’s two-part test. Id. at 52. Because the report and suffering....” “lack[ed] information linking the expert’s conclusion (that [the plaintiff] might have had a better outcome) to [the defendant’s] alleged breach (that it did not correctly read and act upon the x-rays), the trial court could have IV. Dr. Daller gave a “fair summary” of the required reasonably determined that the report was conclusory.” standard of care and how the allegedly inadequate Id. at 53. care fell below that standard. In each of those cases, the trial court could not have The Court concludes that Dr. Daller’s report lacks the evaluated the claim’s merit without speculating about detail necessary to conclude that the estate’s lawsuit has actions the defendant could have taken to prevent injury. merit. But the cases it cites as support involve situations No such speculation is required here. Dr. Daller states that in which a hindsight view is entirely appropriate. Earle v. had the antibiotics been administered from July 17 Ratliff, for example, is a summary judgment case; it through July 23, Eloisa Casas would have suffered less. presents the higher evidentiary standard that Palacios Dr. Daller could have stated that conclusion in greater rejected for expert reports. Earle v. Ratliff, 998 S.W.2d detail, of course, but “[a] report need not marshal all the 882, 890 (Tex.1999) (“Summary judgment can be granted plaintiff’s proof.” Palacios, 46 S.W.3d at 878. Daller’s on the affidavit of an interested expert *543 witness, ... report includes his opinions on (1) the applicable standard but the affidavit must not be conclusory.... [R]ather, the of care (to maintain vigilance over a patient’s treatment), expert must explain the basis of his statements to link his (2) the manner in which the care failed to meet that conclusions to the facts.”). Similarly, the standard standard (failing to ensure the treatment he ordered was employed in City of San Antonio v. Pollock, 284 S.W.3d actually administered), and (3) the causal connection 809, 817–18 (Tex.2009), also cited by the Court, is between the failure and the claimed injury (without the inapplicable here, since it examined an expert report antibiotics, the patient’s pain and suffering increased and under the “no evidence” standard of review. See ––– she required additional hospitalization). S.W.3d at ––––. A “good faith effort” does not require that the report In Palacios we held that an expert report that failed to “meet the same requirements as the evidence offered in a articulate a standard of care or explain how the defendant summary-judgment proceeding or at trial”; therefore, an hospital breached that standard was not a good faith effort expert report does not fail the good faith effort test merely to comply with the statutory requirements. Palacios, 46 because it may not later prove legally sufficient to support S.W.3d at 880. The expert in that case blamed the hospital a judgment. Id. at 879. So, here, whether the Casas estate for taking no action to prevent a patient from falling out ultimately amassed sufficient proof in an adversarial trial of his bed, even though the patient “had a habit of trying is beside the point; the claim itself was far from frivolous. to undo his restraints.” Id. at 879–880. The report, as See id. at 878 (noting that “one purpose of the expert- such, was not a fair summary of the evidence because it report requirement is to deter frivolous *544 claims”). neglected to articulate what actions the hospital should The law imposes a penalty for filing a frivolous suit. Only have taken that it did not. Id. at 880. Thus, the trial court by today’s decree does it also punish a claimant for failing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

to win an arguably meritorious case. Cf. TransAmerican period provisions of section 13.01(g).” Walker v. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). Thus, health (1991) (holding that “sanctions cannot be used to care claimants could receive an opportunity to rectify adjudicate the merits of a party’s claims or defenses deficiencies in a report if they could show that they did unless a party’s hindrance of the ... process justifies a not intentionally, or with conscious indifference, submit presumption that its claims or defenses lack merit.”). an inadequate report.

I agree with the Court that the Estate failed to prove Here, the Casases never had the chance to request an causation at trial; I disagree that, as to Dr. Jelinek, the opportunity to cure any deficiencies in their report expert report was not a good faith attempt to comply with because the trial court determined that the report the statute. I respectfully dissent in part from the Court’s adequately complied with section 13.01(d). In Gutierrez, judgment. we were guided by our recognition that it would be “perverse” to allow a claimant who filed no report a second chance to comply with the statute’s expert report requirement, while “punishing those who attempt to Justice LEHRMANN, dissenting in part. comply with the statute but fail.” Id. In this case, perversely, the Casases may have been in a better position I fully join Chief Justice Jefferson’s dissent. I write *545 than they are now if the trial court had found that the separately, however, to highlight the incongruity inherent report was inadequate; they might have had an in the Court’s decision to remand the case for an award of opportunity to eliminate any deficiencies. attorney’s fees and costs under former article 4590i § 13.01(e), given this case’s circumstances. See I agree fully with Chief Justice Jefferson that the report TEX.REV.CIV. STAT. art. 4590i § 13.01(e) (repealed represents a good-faith effort to comply with section 2003)1. The Court presumes that Dr. Michael Jelinek is 13.01. Even if it did not, however, I would remand the entitled to attorney’s fees because the expert report filed case to allow the Casases an opportunity to show that by Eloisa Casas’s estate2 was, on appeal, determined to be their failure to present an adequate report was not insufficient. But, after a pre-trial hearing was held on the intentional or the result of conscious indifference. See defendant’s motion to dismiss the lawsuit, the trial court City of DeSoto v. White, 288 S.W.3d 389, 401 (Tex.2009) rejected Dr. Jelinek’s contention that the report was (remanding in the interest of justice sua sponte to allow inadequate; consequently, the Casases had no opportunity police officer “to make an appellate election with full to rectify any deficiencies as the statute and our precedent knowledge of his appellate rights and with knowledge of” would have allowed. the guidance provided in Court’s opinion). In my view, the Casases should not be assessed attorney’s fees and Section 13.01(e) of article 4590i provided for an order costs if they can make the showing section 13.01(g) awarding attorney’s fees and costs if a health care requires and then submit a report complying with the claimant failed to supply an expert report within the time statute. For these reasons, as well as those expressed by required under subsection (d)—180 days. But the statute Chief Justice Jefferson, I respectfully dissent in part. provided several avenues for health care claimants to obtain an extension of the 180–day deadline, including section 13.01(g). That provision required the trial court to grant a thirty-day extension of the statutory deadline if a Parallel Citations claimant’s failure to provide an expert report was not intentional or the result of conscious indifference. And we 54 Tex. Sup. Ct. J. 272 have expressly held that “a party who files a timely but inadequate expert report may seek relief under the grace

Footnotes 1 Francisco Casas and Alfredo DeLeon Jr., Casas’s husband and son, respectively, serve as personal representatives of her estate. We refer to them collectively as “the Casases.” 2 Columbia Rio Grande Regional Healthcare, L.P., d/b/a/ Rio Grande Regional Hospital.

3 Because we conclude legally insufficient evidence supports the jury’s verdict, we do not reach the Hospital’s second issue— whether the Hospital preserved error regarding its proposed unavoidable accident instruction.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

4 There was a several-day lag between taking the culture and ordering the prescription, presumably to allow the culture to grow and to transmit the results to the treating physicians. Thus, the Diflucan was prescribed on July 21 and the Vancomycin on July 23. 5 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Former article 4590i § 13.01 was replaced by Texas Civil Practice and Remedies Code § 74.351, as amended. 6 When asked if the lapsed prescriptions affected Casas’s hospital stay, Dr. Daller equivocated: A. I think that it certainly did impact it. However, I cannot quantitate that because there are multiple variables that are present in a clinical condition. Whether it lengthened her stay by one day, two days, three days, I cannot say that. What I would say from a scientific standpoint is that for four and a half days she did not receive appropriate therapy. Had she received the appropriate therapy then you would expect her length of stay to be shortened somewhat. To quantitate that, I could not do that. .... A. Obviously, not receiving antibiotics is not going to shorten your stay. Therefore, if it impacted the stay it must have lengthened it. (emphases added). 7 Admittedly, anaerobic bacteria are hard to culture because they are averse to oxygen.

8 Dr. Berkowitz testified: I think that there are a number of things that can cause things smelling bad besides just infection. Tissue that dies doesn’t smell good. There’s bacteria and products released by the dead tissue that don’t smell good. And we know based on the pathology report of the cancer that they took out of her abdomen, that this had grown enough that it was dying. In other words, it was probably outgrowing it’s [sic] blood supply and was starting to die. That in and of itself can smell bad. Then you have a wound that is infected; although Candida itself does not typically smell bad, not like something dead. It smells funky and people don’t like the way it smells. The wound itself when it wasn’t healing was probably having some necrotic tissue, as well, or dead tissue that is in the wound. I’m sure that smelled bad, as well. And they were never able to completely get rid of all that dead cancer tissue that was in her abdomen. I think there’s a number of reasons why she would have had a bad smell, none of which can be explained by four or five days of not getting Flagyl [or] Maxipime. 9 In his dissent, CHIEF JUSTICE JEFFERSON argues that an expert report need not meet the legal sufficiency requirements necessary to support a judgment and suggests that we hold it must. We agree that an expert report need not “meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. But, as we stated earlier, the report must provide more than conclusory statements concerning applicable standards of care, breach of those standards, and causation. See id. An expert report must instead, within its four corners, provide some explanation as to each of these elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r)(6); Wright, 79 S.W.3d at 52. The report here offered only a conclusory statement concerning causation with no explanation as to how the lapse in antibiotic treatment resulted in longer hospitalization, increased pain and suffering, or ultimately Casas’s death. 10 In her dissent, JUSTICE LEHRMANN indicates that (1) she would remand the case to allow the Casases an opportunity to show that their failure to present an adequate report was not intentional or the result of conscious indifference, and (2) Dr. Jelinek should not be entitled to attorney’s fees and costs if the Casases can make this showing and submit an adequate report. We note that the Casases did not request a remand of this nature, nor brief the attorney’s fees issue. See State v. Brown, 262 S.W.3d 365, 370 (Tex.2008) (observing that “[a] party generally is not entitled to relief it does not seek” and refusing to sua sponte grant relief that was not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex.1997) (noting that ordinarily, failure to brief an argument waives error on appeal); TEX.R.APP. P. 38.1(h). 11 We briefly note that under former article 4590i a trial court’s order denying a motion to dismiss premised on an inadequate expert report was not immediately appealable, as it now is under Texas Civil Practice and Remedies Code §§ 51.014 and 74.351. Nor did we definitively say that mandamus review was appropriate for such orders until almost four years after the trial court denied Dr. Jelinek’s motion for dismissal and sanctions. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–62 (Tex.2008). Thus, we do not fault Dr. Jelinek for waiting until final judgment to seek review of the trial court’s order. See Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“Generally, appeals may only be taken from final judgments....”). We mention this point because we have since cautioned that a defendant—having foregone the interlocutory appeal now available—risks losing the right to appeal following final judgment if, after a trial on the merits, the jury finds the defendant liable. See id. at 321. Even if the present statute applied here, this caution would not bar Dr. Jelinek’s appeal because he was not a party at trial, having been nonsuited earlier. We will not bar a nonsuited defendant’s appeal after final judgment because the jury finds him liable at a former codefendant’s trial. Such a defendant did not call or cross-examine witnesses, present © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

evidence, or otherwise participate at trial and should not be bound by what happens there. 1 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, amending the Medical Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. For ease of reference, I will refer to the relevant provisions as they were identified in article 4590i. 2 I refer to the estate, which was represented by Casas’s husband and son, as “the Casases.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Jernigan v. Langley, 195 S.W.3d 91 (2006) 49 Tex. Sup. Ct. J. 717

Opinion 195 S.W.3d 91 Supreme Court of Texas. PER CURIAM. Floyd E. JERNIGAN, M.D., Petitioner, v. The issue in this medical malpractice case is whether the Marie LANGLEY, Individually and as plaintiff’s expert reports meet the specificity requirements Representative of the Estate of John Langley and of section 13.01 of the Medical Liability and Insurance Mariah Langley, a Minor, Respondent. Improvement Act (the “MLIIA”). Former TEX. REV. CIV. STAT. art. 4590i, § 13.01.1 No. 05–0299. | June 9, 2006. In September 1998, Marie Langley brought suit alleging Synopsis that the death of her 46–year–old husband, John Langley, Background: Wife of patient who died two days after resulted from the negligence of Providence Hospital in emergency surgery brought medical malpractice action Waco and several physicians, including Dr. Floyd against attending physician and others. The 19th District Jernigan. The trial court dismissed Langley’s suit against Court, McLennan County, Ralph Strother, J., dismissed Dr. Jernigan for failure to provide an expert report that action against attending physician for failure to provide an satisfied the requirements of section 13.01 of the MLIIA. expert report that satisfied the requirements of the The court of appeals reversed the trial court’s dismissal. Medical Liability and Insurance Improvement Act. Wife We reverse the judgment of the court of appeals and appealed. The Court of Appeals, 76 S.W.3d 752, reversed. dismiss with prejudice Langley’s claims against Dr. Attending physician petitioned for further review. The Jernigan. Supreme Court, 111 S.W.3d 153, reversed. On remand, the Court of Appeals initially affirmed the district court’s On the morning of October 6, 1996, John Langley went to dismissal, but upon grant of wife’s motion for rehearing, Providence Hospital complaining of stomach pain. An the Court of Appeals, 2005 WL 486759, reversed. abdominal x-ray was performed, and John was diagnosed Attending physician petitioned for review. with fecal impaction. He was given a gallon of GoLYTELY to drink at home and was instructed to return that evening. He returned a few hours later in acute pain and was admitted to the hospital. John’s condition Holdings: The Supreme Court held that: worsened, and he underwent emergency surgery that evening. He fared poorly overnight and was operated on [1] expert reports failed to identify with specificity any again the following day. John died the next morning, action or inaction by attending physician that breached the October 8, 1996. applicable standard of care, and thus reports failed to comply with the Act, and Marie Langley filed this suit in September 1998, and filed two timely expert reports thereafter. In June 2000, Dr. [2] expert reports could not constitute a good faith effort to Jernigan filed a motion to dismiss with prejudice under comply with the Act, and thus trial court had no discretion section 13.01(e) of the MLIIA based on alleged but to dismiss claims against attending physician. deficiencies in Langley’s expert reports. At the hearing on the motion to dismiss, Langley argued that Dr. Jernigan had waived his statutory right to seek dismissal because Judgment of Court of Appeals reversed. he had waited more than 600 days to challenge the reports. Langley also moved for an extension of time to allow the late filing of a third expert report. The trial court Attorneys and Law Firms denied Langley’s motion for an extension of time, and then severed and dismissed Langley’s claims against Dr. *92 Greg White, Nancy Napier Morrison, Waco, Bob Jernigan. The court of appeals reversed, holding that Dr. Burleson, Naman, Howell, Smith & Lee, L.L.P., Temple, Jernigan had impliedly waived his rights under section for Petitioner. 13.01. 76 S.W.3d 752 (Tex.App.—Waco 2002). This Thomas B. Cowart, Law Offices of Windle Turley, P.C., Court disagreed, reversing and remanding the case back Dallas, for Respondent. to the court of appeals. 111 S.W.3d 153 (Tex.2003).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Jernigan v. Langley, 195 S.W.3d 91 (2006) 49 Tex. Sup. Ct. J. 717

On remand, the court of appeals initially affirmed the trial [4] court’s dismissal, *93 No. 10–00–00373–CV, 2004 WL Limiting our section 13.01(1) adequacy analysis to the 1211607, 2004 Tex.App. LEXIS 4972 (June 2, 2004), but four corners of Langley’s two timely-filed expert reports, nine months later issued a new opinion holding that id. at 878, it is notable that one report does not mention Langley’s reports were adequate under section 13.01, and Dr. Jernigan at all, and the other report only mentions him therefore the trial court abused its discretion in dismissing in this single sentence: “At 4:30 p.m. [John Langley’s] Langley’s claims against Dr. Jernigan, 2005 WL 486759, case was discussed with Dr. Jernigan and at 4:50 p.m. a 2005 Tex.App. LEXIS 1687 (Mar. 2, 2005). lactulose enema was ordered.” Alternatively, the court concluded that the trial court abused its discretion in refusing to grant Langley a 30– Dr. Jernigan appears in only one line of one report. This day grace period under section 13.01(g) because passing reference does not identify with specificity any Langley’s failure to comply was not intentional or the action or inaction by Dr. Jernigan that breached the result of conscious indifference. Id. 2005 WL 486759, at applicable standard of care. This perfunctory mention *5, 2005 Tex.App. LEXIS 1687 at *10–18. alleges no misconduct whatsoever, much less discusses the required elements with “sufficient specificity” to [1] Under section 13.01(d)(1) of the MLIIA, a plaintiff inform Dr. Jernigan of “the conduct the plaintiff has bringing a health care liability claim must furnish an called into question.” Id. at 875. expert report within 180 days of filing suit. Former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)(1). The expert As to the standard of care applicable to Dr. Jernigan, the report need not marshal every bit of the plaintiff’s court of appeals found that the following stand-alone evidence, but it must provide “a fair summary of the statement in one of the reports captured the standard *94 expert’s opinions as of the date of the report regarding of care for each defendant-physician: “surgical applicable standards of care, the manner in which the care consultation should have been obtained once the x-rays rendered by the physician or health care provider failed to demonstrated obstruction.” 2005 WL 486759, at *2, 2005 meet the standards, and the causal relationship between Tex.App. LEXIS 1687 at *8–9. Even assuming arguendo that failure and the injury, harm or damages claimed.” Id. that the standard of care applicable to every doctor § 13.01(r)(6). If a claimant fails to file an adequate expert reviewing such x-ray results is to obtain an immediate report timely, the trial court must dismiss a claimant’s suit surgical consult, neither of Langley’s expert reports with prejudice upon motion by the defendant. Id. § asserts that Dr. Jernigan was ever provided with the x-ray 13.01(e). The trial court must grant a motion challenging results or had any independent duty to review them. the adequacy of an expert report only if the report does Instead, the court of appeals indulges multiple inferences not represent a good faith effort to comply with section that are simply unsupported by the scant reports. 13.01(r)(6)’s definition of an expert report. Id. § 13.01(1). Finally, upon timely motion, the trial court must grant the Moreover, according to the reports, the x-rays were taken claimant a 30–day grace period to comply with the statute on John Langley’s first visit to Providence Hospital at if the trial court finds that the claimant’s failure to comply 6:40 a.m. on October 6, 1996, whereas Dr. Jernigan did was “not intentional or the result of conscious not become involved in John’s treatment until the case indifference but was the result of an accident or mistake.” was “discussed” with him at 4:30 p.m., nearly ten hours Id. § 13.01(g). later. The expert reports state that the surgeons were called at 6:40 p.m., but do not assert that Dr. Jernigan [2] [3] A trial court’s decision to dismiss under section personally failed to order a surgical consult prior to that 13.01(e) is reviewed for abuse of discretion. Am. time or that the roughly two-hour gap between when the Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 surgeons were called and when they arrived at 8:30 p.m. S.W.3d 873, 877–78 (Tex.2001). Denial of a section was attributable to Dr. Jernigan. 13.01(g) grace period is also reviewed for abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 63 We agree with the dissent below that Langley’s expert (Tex.2003). reports failed to comply with section 13.01 because “[e]ven if we assume that the reports address the standard We held in Palacios that in order to constitute a good- of care with respect to each doctor, ... neither report faith effort under section 13.01(1), an expert report must addresses how Dr. Jernigan breached the standard or how “discuss the standard of care, breach, and causation with his unstated breach of duty caused John’s death with sufficient specificity to inform the defendant of the sufficient specificity for the trial court, and Jernigan, to conduct the plaintiff has called into question and to determine that the allegations against Jernigan had any provide a basis for the trial court to conclude that the merit.” 2005 WL 486759, at *14, 2005 Tex.App. LEXIS claims have merit.” 46 S.W.3d at 875. 1687 at *51–52 (Gray, C.J., dissenting). A glancing

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statement that John’s case was “discussed” with Dr. Jernigan sheds no light whatsoever on what Dr. Jernigan The trial court did not abuse its discretion in dismissing allegedly did wrong, much less how his alleged error(s) Langley’s claims against Dr. Jernigan. Accordingly, proximately caused John’s death. Thus, we conclude that without hearing oral argument, we reverse the court of the reports omitted statutory elements of Marie Langley’s appeals’ judgment and dismiss with prejudice Langley’s claim against Dr. Jernigan. claims against Dr. Jernigan. TEX. R. APP. P. 59.1. [5] Because Langley’s expert reports omit at least one of the three specifically enumerated requirements of section 13.01(r)(6), they cannot constitute a good faith effort to Parallel Citations meet the statutory requirements. Palacios, 46 S.W.3d at 879. Accordingly, the trial court had no discretion but to 49 Tex. Sup. Ct. J. 717 conclude, as it did here, that Langley’s claims against Dr. Jernigan must be dismissed. Id. at 880.

Footnotes 1 Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985–87 (adding expert report requirement, at former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898–99 (“House Bill 4”) (adopting chapter 74 of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing prior law in effect for actions filed before that date) (current version at TEX. CIV. PRAC. & REM CODE § 74.351).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kocurek v. Colby, Not Reported in S.W.3d (2014)

Colby was under Kocurek’s care for approximately two months after sustaining injuries on the job; his primary 2014 WL 4179454 Only the Westlaw citation is currently available. medical complaints were numbness and pain in his left hip and tingling in his right hand. According to Colby, SEE TX R RAP RULE 47.2 FOR DESIGNATION Kocurek performed no physical examination on him and AND SIGNING OF OPINIONS. instead had only oral conferences with him. Further, Kocurek indicated to him orally that she would refer him MEMORANDUM OPINION to a specialist, but never did. Court of Appeals of Texas, Austin. After receiving treatment from Kocurek, Colby moved out of state and transferred his care to an orthopedic Kristen KOCUREK, M.D., and Texas MedClinic, specialist there. Shortly thereafter, however, Colby Appellants returned to see Kocurek, claiming new symptoms. v. According to Colby’s petition, at that visit Kocurek again Anthony D. COLBY, Appellee. failed to examine him physically, ignored his symptoms, and displayed an inappropriate demeanor toward him. No. 03–13–00057–CV. | Aug. 22, 2014. Colby filed suit against Kocurek and Texas MedClinic,2 From the District Court of Travis County, 419th Judicial alleging departures from accepted standards of medical District No. D–1–GN–12–000186, Tim Sulak, Judge care that proximately resulted in injuries to him. Colby Presiding. alleged that Kocurek failed to meet the applicable standards of care in failing to (1) perform a thorough Attorneys and Law Firms examination of him; (2) secure appropriate treatment for Anthony D. Colby, Austin, TX, pro se appellee. him; (3) properly diagnose and treat him; (4) refer him to or consult with a specialist; and (5) monitor his condition. Laura A. Macom, George F. Evans Jr., Brett B. Rowe, Colby also made a claim for fraudulent Evans & Rowe, PC, San Antonio, TX, for appellant. misrepresentation/common-law fraud relating to Kocurek’s documentation of his injuries and treatment. In Before Chief Justice JONES, Justices GOODWIN and addition, Colby claimed that Kocurek’s actions caused (1) FIELD. a pinched nerve in his right hand to become entrapped, (2) his left hip to develop bursitis and soft-tissue nerve damage, (3) limited range of motion in his hip, as well as constant pain and nerve damage that will worsen with age, and (4) a need for surgery in his right hand due to numbness, tingling, and serious pain. MEMORANDUM OPINION After filing suit, Colby served appellants with the expert SCOTT K. FIELD, Justice. report of Dr. Ronald Devere, a neurologist, to comply with the expert-report requirement of section 74.351 of *1 Appellants Kristen Kocurek, M.D., and Texas the Texas Civil Practice and Remedies Code. See id. MedClinic appeal from the trial court’s denial of their Appellants then filed a motion to dismiss the suit, motion to dismiss appellee Anthony D. Colby’s1 suit for claiming that Devere’s expert report failed to satisfy the medical malpractice based on Colby’s alleged failure to statutory elements under section 74.351. After a hearing, provide an adequate expert report as required by chapter the trial court agreed with appellants that Devere’s expert 74 of the Texas Civil Practice and Remedies Code. See report was deficient, but granted Colby a 30–day Tex. Civ. Prac. & Rem.Code § 74.351. We will reverse extension to cure the deficiencies. In response to the trial the trial court’s judgment and remand for dismissal and a court’s ruling, Colby served appellants with an amended determination of attorneys’ fees. report from Devere. Appellants again filed a motion to dismiss, contending that Devere’s amended report remained deficient. After a hearing, the trial court denied appellants’ motion to dismiss.3 Appellants then filed this FACTUAL AND PROCEDURAL BACKGROUND interlocutory appeal. See id. § 51.014(a)(9).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kocurek v. Colby, Not Reported in S.W.3d (2014)

ANALYSIS dismiss the plaintiff’s claims. See id. § 74.351(a), (b). In two appellate issues, appellants contend that the trial court Jurisdiction abused its discretion in denying their motion to dismiss *2 In response to appellants’ appeal, Colby contends that because (1) Devere is not a qualified expert to provide a this Court lacks jurisdiction over the appeal. Colby report in this case, and (2) Devere’s report is conclusory appears to argue that once a trial court grants a 30–day with regard to the element of causation. We will begin extension for a plaintiff to file an amended report and the with analysis of whether Devere’s report adequately plaintiff files an amended report, no appeal may be taken demonstrates causation. with regard to the trial court’s ruling on the adequacy of the amended report. Colby argues that, in any event, a *3 When a party challenges the adequacy of an expert party may not appeal the denial of a motion to dismiss report, the trial court should sustain the objection only if it relating to the adequacy of the expert report. In support of determines that the report does not represent an “objective his argument, Colby relies on this Court’s opinion in good faith effort to comply with the definition of an Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d expert report.” Id. § 74.351(l ). To constitute a good-faith 184 (Tex.App.-Austin 2005, no pet.). Our opinion in effort, the report must inform the defendant of the specific Andra, however, does not support Colby’s position. In conduct called into question and provide a basis for the Andra, the defendant filed an interlocutory appeal of a trial court to determine whether the claims have merit. denial of a motion to strike an expert report, not a motion American Transitional Care Ctrs. of Tex., Inc. v. to dismiss as in this case. Id. at 186. Because of the Palacios, 46 S.W.3d 873, 879 (Tex.2001). A report does unique procedural posture in the Andra case, we not fulfill these purposes if it fails to address the standard concluded that the motion for relief was a motion under of care, breach of the standard of care, and causation, or if section 74.351(l ), for which there is no provision for an it merely states the expert’s conclusions regarding these interlocutory appeal when denied. Id. at 189; see Tex. elements. Id. The expert must link his conclusions to the Civ. Prac. & Rem.Code § 51.014(a)(10) (allowing facts of the case. Bowie Mem’l Hosp. v. Wright, 79 interlocutory appeal of order granting relief under section S.W.3d 48, 52 (Tex.2002). We review a trial court’s 74.351(1 )). That is not the type of motion appellants filed denial of a motion to dismiss under section 74.351 under in this case. an abuse-of-discretion standard. Palacios, 46 S.W.3d at 878. However, “if an expert report contains only Appellants filed a motion to dismiss and request for conclusions about the statutory elements, the trial court attorneys’ fees under section 74.351(b). See Tex. Civ. has ‘no discretion but to conclude ... that the report does Prac. & Rem.Code § 74.351(b) (providing that physician not represent a good-faith effort’ to satisfy the statute.” provider may move to dismiss when sufficient expert Smith v. Wilson, 368 S.W.3d 574, 577 (Tex.App.-Austin report not served and 120–day deadline has expired). The 2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880). denial of a motion to dismiss and request for attorneys’ To perform its review, the trial court must look only to the fees under section 74.351(b) is subject to interlocutory four corners of the report itself. Palacios, 46 S.W.3d at appeal under section 51.014(a)(9) of the Texas Civil 878. Practice and Remedies Code. Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008). Colby’s jurisdictional Devere’s eight-page report contains a paragraph on his complaint is overruled, and we now turn to the merits of qualifications, lists the issues he is reviewing and the this appeal. materials used in that review, and states the background facts. The report then turns to a discussion of the standards of care for Kocurek’s treatment of Colby and a discussion applying those standards of care to the facts Sufficiency of Expert Report presented. Finally, it contains a conclusion section. The In a health-care-liability claim, a claimant must provide report contains some detail of Colby’s complaints, the each defendant with an expert report and curriculum vitae standards of care applicable to those complaints, and an for each expert within 120 days of filing suit. Tex. Civ. opinion as to whether Kocurek breached the applicable Prac. & Rem.Code § 74.351(a). The expert report must standards of care. Devere’s report, however, contains summarize the expert’s opinions “regarding applicable nearly no discussion of causation to link Colby’s alleged standards of care, the manner in which the care rendered harm to Kocurek’s actions. by the physician or health care provider failed to meet the standards, and the causal relationship between that failure Looking only to the four corners of the report, the and the injury, harm, or damages claimed.” Id. § following are the only statements from Devere’s report 74.351(r)(6). After an expert report is filed, the defendant that could potentially be considered as touching on may object to the sufficiency of the report and move to causation:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kocurek v. Colby, Not Reported in S.W.3d (2014)

• “Based on Dr. Kocurek’s failure to act, secure alleged breaches of the standards of care to any one of treatment and properly execute a referral for Mr. Colby’s injuries. Colby, his condition has worsened and he has suffered tremendously and unnecessarily.” (from An expert report must explain, to a reasonable degree, Background Facts section of report) how and why the alleged breach caused the injury based on the facts presented. See Jelinek v. Casas, 328 S.W.3d • “By not making this referral [to a specialist], 526, 539–40 (Tex.2010). The closest Devere’s report Defendant, Dr. Kocurek, deceived Mr. Colby, comes to providing a causal link is in his statement that created anxiety in Mr. Colby by making him think “[b]ased on [Kocurek’s] actions or failures to act, Mr. that a referral to a specialist was coming when it was Colby suffered and [Kocurek’s] actions or failures to act not and resulted in a delay in Mr. Colby receiving were a direct cause of worsening pain and numbness to any needed care, treatment or therapy that might Mr. Colby. Her violations of the standard of care resulted have been recommended by a specialist, if that in a delay of Mr. Colby receiving appropriate care for his referral had been made.” (from Application of injuries, and the worsening of his symptoms.” This Standard of Care section) statement, however, never identifies which breach of which standard of care by Kocurek led to a worsening of *4 • “In my expert opinion, the Defendant violated Colby’s pain and numbness. Further, the statement fails to the applicable standard of care for physician’s [sic] identify how any specific injury sustained by Colby operating in the State of Texas based on the reasons would have been prevented or lessened had he received mentioned above. Based on her actions or failures to “appropriate care” sooner. Devere’s statement that act, Mr. Colby suffered and her actions or failures to referring Colby to a specialist might have made a act were a direct cause of worsening pain and difference in Colby’s condition—“treatment or therapy numbness to Mr. Colby. Her violations of the that might have been recommended by a specialist, if that standard of care resulted in a delay of Mr. Colby referral had been made”—amounts to nothing more than receiving appropriate care for his injuries, and the speculation. See id. at 539 (concluding that statement in worsening of his symptoms.” (from the Conclusion expert report that breach of standard of care “in section) reasonable medical probability resulted in [injury]” was insufficient). The report does not explain what treatment • “Based on these worsening injuries, Mr. Colby has or therapy a specialist would have provided had Colby endured and will continue to endure significant pain, been referred earlier or how such treatment or therapy numbness and incapacity until he can receive the would have prevented Colby’s injuries. As a result, the appropriate treatment to correct these conditions.” statements in Devere’s report regarding causation amount (from the Conclusion section) to “no more than a bare assertion that [Kocurek’s] breach resulted in increased pain and suffering.” See id. at 540. The issue is whether these statements, which appear to be the only attempts made at establishing causation in *5 This Court has consistently required more than what Devere’s report, are sufficient to meet the requirements of Devere has provided in terms of expert testimony on section 74.351. We conclude they are not. causation in the context of section 74.351. See Smith, 368 S.W.3d at 577–78 (holding that expert report failed to The problem with Devere’s report is that it fails to show, show how doctor’s alleged breach of standard of care within its four corners, what specific actions Kocurek did caused patient to commit suicide); Constancio v. Bray, or did not take, or could have taken, that would have 266 S.W.3d 149, 157–58 (Tex.App.-Austin 2008, no pet.) prevented Colby’s symptoms or injuries. See Tex. Civ. (holding that expert report that alleged that breach of Prac. & Rem.Code § 74.351(r)(5) (expert report must standard of care by doctor caused patient’s death is include “fair summary” or expert’s opinion as to “causal insufficient when report did not explain how increased relationship” between medical defendant’s failure to meet monitoring of patient, detection of hypoxemia, and other standard of care and injury). Nowhere in the report does actions would have prevented patient’s death); Perez v. Devere actually state what specific violation of which Daughters of Charity Health Servs. of Austin, No. 03–08– standard of care led to a particular health problem of 00200–CV, 2008 WL 4531558, at *4 (Tex.App.-Austin Colby’s. The report lists five standards of care that Oct. 10, 2008, no pet.) (mem.op.) (concluding expert Kocurek allegedly violated in her treatment of Colby and report insufficient on causation because it did not link the specific ways Devere believes Kocurek violated those hospital’s actions to patient’s death or any cause of death standards of care. Devere, however, did not provide facts and did not identify any specific injury that would have that would explain a causal link between any of those been prevented had hospital complied with standard of care). To find Devere’s report sufficient on causation, we

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kocurek v. Colby, Not Reported in S.W.3d (2014)

would have to make inferences from beyond the four corners of his report; this we are not allowed to do.

Based on the record before us and the four corners of the expert report, we are left with no choice but to conclude CONCLUSION that the report does not provide an adequate causal link between Kocurek’s alleged shortcomings and Colby’s We reverse the trial court’s order denying appellants’ symptoms or injuries. Because the report is insufficient as motion to dismiss. We remand the cause to the trial court to Kocurek, it is also insufficient as to Texas MedClinic, for a determination of attorneys’ fees, see Tex. Civ. Prac. which Colby sued solely on the basis of its alleged & Rem.Code § 74.351(b), and for entry of a final order vicarious liability for Kocurek’s actions. See Smith, 368 dismissing Colby’s claims against appellants. S.W.3d at 579. Accordingly, we sustain the appellants’ second issue on appeal.4

Footnotes 1 Colby represents himself in this appeal as he did in the trial court proceedings.

2 Colby’s claims against Texas MedClinic were solely for vicarious liability arising from Kocurek’s actions.

3 The trial judge who denied appellants’ motion to dismiss Devere’s amended expert report was not the same trial judge who ruled that Devere’s expert report was deficient in the context of appellants’ first motion to dismiss. 4 Because appellants’ second issue is dispositive of this appeal, we need not reach appellants’ first appellate issue challenging the trial court’s conclusion that the expert report adequately demonstrated Devere’s qualifications as an expert.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

2006 WL 728068 Only the Westlaw citation is currently available. MEMORANDUM OPINION SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. RICK STRANGE, Justice. MEMORANDUM OPINION *1 This is a medical malpractice action. Michael J. Court of Appeals of Texas, Dragun, M.D. and West Texas Urology filed a motion to Eastland. dismiss contending that Kelly and Terry Kuykendall’s expert report did not satisfy the requirements of Kelly KUYKENDALL and Husband, Terry TEX.REV.CIV. STAT. art. 4590i, § 13.01 (2001).1 The Kuykendall, Appellants trial court granted appellees’ motion to dismiss and v. denied appellants’ request for an extension of time to file Michael J. DRAGUN, M.D. and West Texas an amended report. We find no error and affirm. Urology, Appellees.

No. 11-05-00230-CV. | March 23, 2006.

Synopsis Facts Background: Patient filed medical malpractice action Kelly Kuykendall underwent a bilateral salphingo- against surgeon who was brought in during surgery to oophorectomy and a laparoscopic-assisted vaginal address complications from perforation of patient’s hysterectomy on June 24, 2002. The surgery was bladder. The 142nd District Court, Midland County, performed by Dr. Brady Locke. Kelly’s bladder was granted surgeon’s motion to dismiss. Patient appealed. perforated during the surgery. Dr. Dragun was contacted and was asked to repair the injury. He performed a laparotomy and was assisted in the procedure by Dr. Holdings: The Court of Appeals, Rick Strange, J., held Locke. that The original surgery was scheduled for two hours. [1] expert report submitted by patient did not satisfy Because of the bladder complication, the surgery lasted statutory requirements, and six hours. Appellants allege that Kelly’s peripheral nerves were damaged during the extended surgery. [2] trial court did not abuse its discretion when it denied patient’s request for a 30-day grace period to amend Appellants filed a medical malpractice action against Dr. report. Dragun and other health care providers on May 29, 2003. They timely filed the expert report and curriculum vitae of Dr. Mearl A. Naponic. Appellees filed a motion to Affirmed. dismiss, contending the expert report did not satisfy the requirements of Article 4590i, section 13.01. Appellants responded that Dr. Naponic’s expert report was sufficient On Appeal from the 142nd District Court, Midland and, alternatively, requested an Article 4590i, section County, Texas, Trial Court Cause No. CV45114. 13.01(g) thirty-day extension. The trial court conducted a hearing and granted appellees’ motion to dismiss and Attorneys and Law Firms denied appellants’ request for an extension.

Rick Dunbar, for Appellants.

Jack Tidwell, for Appellees. Issues Panel consists of WRIGHT, C.J., and McCALL, J., and STRANGE, J. In two issues, appellants contend that their expert report satisfies the requirements of Article 4590i, section 13.01

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

or, alternatively, that the trial court abused its discretion not fulfill these two purposes. Nor can a report meet by denying their request for an Article 4590i, section these purposes and thus constitute a good-faith effort if 13.01(g) thirty-day grace period to amend their report. it omits any of the statutory requirements. However, to avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as Standard of Review the evidence offered in a summary-judgment proceeding or at trial. (citations omitted) A trial court’s decision to dismiss a lawsuit because of an inadequate expert report is reviewed under an abuse of Courts have identified additional considerations when discretion standard. Am. Transitional Care Ctrs. of Tex., multiple defendants are sued. In that instance, the expert Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). A trial report must provide an explanation of how each defendant court’s decision to grant or deny an Article 4590i, section specifically breached the applicable standard of care and 13.01(g) grace period is also reviewed under an abuse of how that breach caused or contributed to the cause of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, injury. Taylor v. Christus Spohn Health Sys. Corp., 169 62 (Tex.2003). S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.).

A trial court abuses its discretion if it acts in an arbitrary That portion of Dr. Naponic’s expert report which or unreasonable manner without reference to any guiding addressed Dr. Dragun’s actions contained the following rules or principles. Downer v. Aquamarine Operators, language: Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court is not allowed to substitute its judgment for that of On June 24, 2002, Kelly Kuykendall underwent the trial court when reviewing a discretionary decision. bilateral salphingo-oophorectomy, as well as a Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 laparoscopic assisted vaginal hysterectomy. Theses (Tex.1989). The mere fact that a trial court may decide a [sic] surgical treatments were performed in an effort to matter within its discretionary authority in a different relieve pre-operative symptoms of pelvic pain, manner than an appellate court in a similar circumstance dysmenorrhea and menorrhagia and failed medical does not demonstrate that an abuse of discretion has management of same. The initial procedure scheduled occurred. Downer, 701 S.W.2d at 241-42. for two hours was performed by Dr. Brady Locke and was complicated by an intra-operative injury to the bladder. The perforation of the bladder necessitated surgical repair; and, thus this two hour surgery evolved into a six hour surgery, involving a laparotomy to Does Dr. Naponic’s Report Satisfy Article 4590i? repair an incision into the bladder of approximately eight to nine centimeters. This second surgery was *2 [1] In Palacios, 46 S.W.3d at 878-79, the supreme court performed by Dr. Michael Dragun and assisted by Dr. outlined the criteria for evaluating the efficiency of expert Brady Locke. reports. Specifically, the court wrote: The standard of care for such procedures as described [T]he expert report must represent only a good-faith above, necessarily require[s] that the peripheral nerves effort to provide a fair summary of the expert’s in and adjacent to the operative site be identified and opinions. A report need not marshal all the plaintiff’s protected. This is particularly true when a self-retaining proof, but it must include the expert’s opinion on each retractor is used and the length of the surgery is of the elements identified in the statute. In setting out prolonged. Complications, including nerve injuries, the expert’s opinions on each of those elements, the from self-retaining retractors are well-known and well- report must provide enough information to fulfill two described in the relevant literature. Failing to properly purposes if it is to constitute a good-faith effort. First, pad the self-retaining retractor, failure to adequately the report must inform the defendant of the specific position the patient and/or leaning on the patient during conduct the plaintiff has called into question. Second, this prolonged surgery are the most likely cause of the and equally important, the report must provide a basis intra-operative injuries and complications suffered by for the trial court to conclude that the claims have Kelly Kuykendall and are below the accepted standard merit. of care for these procedures. As both Dr. Locke and Dr. A report that merely states the expert’s conclusions Dragun performed the bladder repair, they shared the about the standard of care, breach, and causation does

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

responsibility to protect Kelly Kuykendall against this The supreme court’s holding in Palacios, 46 S.W.3d at injury. 873, that a trial court’s decision to grant a motion to dismiss is subject to an abuse of discretion review, *3 A fair summary is something less than a full statement mandates that we provide trial courts with some deference of the applicable standard of care and how it was when determining what constitutes a good faith effort to breached. A fair summary must set out what care was comply with the statute in a particular case. Because Dr. expected but not given. Palacios, 46 S.W.3d at 880 Naponic’s report failed to provide specific information (“[w]hether a defendant breached his or her duty to a concerning Dr. Dragun’s conduct, because he assumed patient cannot be determined absent specific information the two doctors were equally responsible for Kelly’s about what the defendant should have done differently”). injury, and because Dr. Naponic relied upon assumptions An expert report must show causation beyond mere to determine the “most likely” cause of her injury, we conjecture. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, hold the trial court did not abuse its discretion when it 52 (Tex.2002). Knowing what specific conduct the granted appellees’ motion to dismiss. Appellants’ first plaintiff’s expert has called into question is critical to both issue is overruled. the defendant’s ability to prepare for trial and the trial court’s ability to evaluate the viability of the plaintiff’s claims. Palacios, 46 S.W.3d at 876-77. Dr. Naponic’s report does not provide this level of information because his analysis is premised on several assumptions and Were Appellants Entitled To A Thirty-Day Extension To because he fails to distinguish between the actions of Dr. Amend Their Report? Locke and Dr. Dragun. *4 [2] Article 4590i, section 13.01(d) required claimants to Dr. Naponic’s analysis is similar to a res ipsa approach. furnish an expert report within 180 days after the claim Because Kelly suffered from peripheral nerve damage and was filed. Article 4590i, section 13.01(g) gave trial courts because the relevant literature documents a connection the discretion to provide a thirty-day grace period to file between that injury and the failure to properly pad self- an amended report if the failure to timely file an adequate retaining retractors, improperly positioning the patient, or report “was not intentional or the result of conscious leaning on the patient, Dr. Naponic assumes that these are indifference but was the result of an accident or mistake.” the “most likely” causes of her injury. He assumes further that Dr. Locke and Dr. Dragun are collectively In their response to appellees’ motion to dismiss, responsible for one or more of these actions. 2 appellants included an alternative request for a thirty-day extension based upon their belief that Dr. Naponic’s There are several problems with this approach. First, Dr. report was adequate and, if not, contended that their Naponic’s report does not document that a self-retaining failure to provide an adequate report was due to accident retractor was even used or, if so, by whom. This is not a or mistake and not an intentional act or conscious question of mere semantics. Dr. Dragun cannot be held indifference. Appellants’ request was supported by the responsible for any actions taken before he arrived in the testimony of their trial counsel who stated that he operating room, nor can he be held responsible for contacted Dr. Naponic based upon the referral of a improperly using equipment that was never utilized. general surgeon, that he provided Dr. Naponic with the Knowing what Dr. Naponic alleges Dr. Locke did during relevant records and caselaw, that they discussed this the initial portion of the procedure and what Dr. Naponic case, that Dr. Naponic indicated that it would be difficult alleges happened during Dr. Dragun’s portion of the to distinguish from the medical records which defendant procedure are vital. caused the intraoperative injuries absent an admission, but that Dr. Naponic informed him that all the health care Second, even assuming Dr. Dragun used a self-retaining providers shared a duty to protect Kelly. Counsel testified retractor, Dr. Naponic did not document how it was that he relied upon Dr. Naponic, who was a board- padded or how it should have been padded. Third, the certified obstetrician and gynecologist, to provide him report does not document how Kelly was positioned at with a sufficient report and that he believed Dr. Naponic any point in time during her surgical procedure, nor how had done so. she should have been positioned during Dr. Dragun’s procedure. Finally, the report provides no support for his The Texas Supreme Court faced a similar situation in hypothesis that Dr. Dragun leaned on Kelly beyond his Walker, 111 S.W.3d at 56. There, as here, claimant’s contention that this is frequently the cause of her type of counsel mistakenly believed that his expert’s report was injury. sufficient. The supreme court comprehensively reviewed intermediate court decisions on Article 4590i, section

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

13.01(g) extensions, finding that some courts were records would contain information on the surgical erroneously holding that any mistake of law was equipment utilized, the manner in which the patient was sufficient to support an extension while others were positioned, and the surgery conducted. Because two impermissibly applying a standard that precluded an different doctors operated on Kelly, their respective extension because of a mistake of law. Id. at 63-64. records would provide information unique to each doctor According to the supreme court, some-but not all- and their procedures. The trial court could have mistakes of law may negate a finding of intentional reasonably concluded that in this case appellants had the conduct or conscious indifference and, therefore, support ability to distinguish between the actions of the two an extension. The distinction turns on the knowledge and doctors and determine what surgical equipment and acts of the claimant. Id. at 64. procedures were utilized and that their failure to do so precluded a thirty-day grace period. The supreme court concluded that counsel’s belief that his expert’s report was sufficient, despite clear statutory The cases decided since Walker indicate that the trial requirement to the contrary, “does not establish a court’s decision to grant or deny a thirty-day grace period ‘sufficient excuse’ necessary to support a finding that a when counsel argues that his mistaken belief that a report party made a mistake of law.” Id. at 64-65. This follows was sufficient constitutes a mistake of law, are afforded because a medical malpractice claimant is charged with great deference due to their individual factual patterns. knowledge of Article 4590i, section 13.01 and its Compare In re Zimmerman, 148 S.W.3d 214, 217 requirements. Id. Appellants distinguish Walker by (Tex.App.-Texarkana 2004, orig. pro-ceeding) (affirming alleging it involved a report which was absent the relevant the trial court’s decision to grant a thirty-day grace period standard of care and how the defendants breached that based upon mistake of law) with Sandles v. Howerton, standard. Appellants contend that, if their report is 163 S.W.3d 829, 838 (Tex.App.-Dallas 2005, no inadequate, it is not because of the absence of a critical pet.)(affirming the trial court’s decision to not grant a element but simply insufficient information. thirty-day grace period based upon a mistake of law).

*5 The trial court is best positioned to assess what We cannot say that the trial court abused its discretion appellants knew and to evaluate their actions. The extent when it denied appellants’ request for a thirty-day grace and quality of the information available to a medical- period. Appellants’ second issue is overruled. malpractice claimant will vary from case to case. That information directly impacts the report a good faith effort will produce. We have found that the trial court did not abuse its discretion when it held Dr. Naponic’s report was insufficient because Dr. Naponic failed to distinguish Conclusion between the actions of the two doctors and because his analysis relies heavily on assumption. During oral The trial court did not abuse its discretion when it granted argument, appellants’ counsel pointed out that physicians appellees’ motion to dismiss and denied appellants’ are unlikely to admit to errors in their medical records request for a thirty-day grace period. The trial court’s and, therefore, that one cannot expect doctors to judgment is affirmed. affirmatively state that they leaned on their patient during surgery. Even if we accept this as true, the medical

Footnotes 1 Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2005). 2 In Palacios, the supreme court noted that, as a general rule, res ipsa loquitur does not apply in medical malpractice cases. 46 S.W.3d at 880. Consequently, an expert report must do more than simply assume that a health care provider is responsible for any surgical complication.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Kuykendall v. Dragun, Not Reported in S.W.3d (2006)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

ON APPELLEES’ MOTION FOR REHEARING 300 S.W.3d 343 Court of Appeals of Texas, Opinion by: REBECCA SIMMONS, Justice. San Antonio. The motion for rehearing filed by appellees Barbara REGENT CARE CENTER OF SAN ANTONIO II, Hargrave, Individually and as Executrix of the Estate of LTD. PARTNERSHIP d/b/a Regent Care Center of Dorothy Montgomery, and Vernon Lloyd Pierce, Oakwell Farms and RCCSA II, Inc., Appellant, Individually, is denied. This court’s opinion and judgment v. dated April 3, 2009, are withdrawn, and this opinion and Barbara HARGRAVE, Individually and as judgment are substituted. Executrix of the Estate of Dorothy Montgomery, and Vernon Lloyd Pierce, Individually, Appellees. This case is on remand from the Texas Supreme Court. See Regent Care Ctr. of San Antonio II, Ltd. P’ship v. No. 04–05–00274–CV. | Aug. 31, 2009. Hargrave, 251 S.W.3d 517 (Tex.2008). On original submission, we dismissed the appeal for lack of Synopsis jurisdiction holding that this Court lacked subject matter Background: Executrix of nursing home resident’s estate jurisdiction to review the denial of the motion to dismiss filed medical malpractice action against hospital. Hospital and for sanctions which was rendered moot by the trial motioned to dismiss based on inadequate expert report. court’s subsequent nonsuit. This court, however, never The 150th Judicial District Court, Bexar County, Lori reached the merits of the appeal. On remand, the sole Massey, J., denied hospital’s motion. Hospital appealed. remaining issue is the adequacy of the expert report.

Appellants Regent Care Centers of San Antonio II, Limited Partnership d/b/a Regent Care Center of Oakwell [Holding:] The Court of Appeals, Rebecca Simmons, J., Farms and RCCSA II, Inc. (Regent Care) appeal the *345 held that expert report did not contain necessary elements trial court’s denial of its motion to dismiss based on an of causation. inadequate expert report under former article 4590i of the Texas Revised Civil Statutes. Appellees Barbara Hargrave, Individually and as Executrix of the Estate of Reversed and remanded. Dorothy Montgomery and Vernon Lloyd Pierce, Individually (collectively Hargrave) contend that the Opinion, 2009 WL 902233, superseded. expert report, taken in its entirety, provided sufficient information for the trial court to determine that the See also 251 S.W.3d 517. allegations against Regent Care had merit. On remand, we hold the trial court erred in denying Regent Care’s motion to dismiss in accordance with the requirements set forth in Attorneys and Law Firms article 4590i. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, *344 D. Ann Comerio, Law Offices of Ann Comerio, San 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. Antonio, TX, for Appellant. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Alex M. Miller, Mikal C. Watts, Francisco Guerra, IV, Watts Guerra Craft LLP, San Antonio, TX, for Appellee.

Sitting: Chief Justice ALMA L. LÓPEZ1, SANDEE FACTUAL BACKGROUND BRYAN MARION, Justice, REBECCA SIMMONS, Justice. On November 15, 2000, Dr. Rafael Parra performed back surgery on seventy-two year old Dorothy Montgomery. Approximately six days later, Mrs. Montgomery was discharged for rehabilitation into the custody of Regent Care. On December 18, 2000, Mrs. Montgomery was OPINION transferred from Regent Care back to the hospital with acute renal failure. By the time of her transfer, Mrs. Montgomery was suffering from a staphylococci infection © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

and was septic due to an open and draining surgical standards, and (3) the causal relationship between that wound on her back. Mrs. Montgomery was transferred failure and the injury, harm, or damages claimed. See Act back and forth between the hospital and Regent Care of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. several times before her death on February 18, 2001. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed 2003). If a plaintiff fails to comply with section 13.01(d), Hargrave filed a medical malpractice lawsuit against two a defendant may seek sanctions pursuant to section physicians and Regent Care. In order to comply with the 13.01(e) and the trial court shall grant the motion to Texas Medical Liability and Insurance Improvement Act dismiss with prejudice and award costs and attorneys’ (the Act), Hargrave timely filed an expert report prepared fees to the defendant. See id. sec. 13.01(e), (f), 1995 Tex. by Dr. Christopher M. Davey. See id.2 Regent Care Gen. Laws 985, 986. The dispositive question is whether subsequently moved to dismiss the lawsuit, with the expert report represents a good-faith effort to comply prejudice, claiming the report did not comply with the with section 13.01(r)(6). Bowie Mem’l Hosp. v. Wright, statutory requirements. See id. sec. 13.01(e), (l ), (r)(6), 79 S.W.3d 48, 51–52 (Tex.2002) (citing Act of May 30, 1995 Tex. Gen. Laws 985, 986–87. The trial court denied 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(r)(6), 1995 Regent Care’s motions to dismiss, and this appeal Tex. Gen. Laws 985, 987 (repealed 2003)). followed. [3] [4] [5] [6] [7] To constitute a good-faith effort to establish the causal relationship element under the Act, the expert “report need not marshal all the plaintiff’s proof,” or present evidence as if the plaintiff was actually litigating ADEQUACY OF EXPERT REPORT the merits. See Bowie Mem’l Hosp., 79 S.W.3d at 52–53; accord Palacios, 46 S.W.3d at 878. No magic words such Regent Care asserts that the trial court abused its as “reasonable medical probability” are required for the discretion in denying Regent Care’s Motion to Dismiss report to comply with the Act. Bowie Mem’l Hosp., 79 with Prejudice and for Statutory Sanctions and the motion S.W.3d at 53. The report must (1) “inform the defendant to reconsider the same because the expert report of the specific conduct the plaintiff has called into inadequately explains causation. Hargrave contends the question,” and (2) “provide a basis for the trial court to expert report contains sufficient information regarding conclude that the claims have merit.” Palacios, 46 S.W.3d causation for the court to have reasonably concluded the at 879. A report that merely sets forth the expert’s claims against Regent Care had merit. conclusions is insufficient to satisfy these two purposes. Bowie Mem’l Hosp., 79 S.W.3d at 53. In assessing the adequacy of the report, the trial court may not make inferences and is confined to the four corners of the A. Standard of Review [1] report. Id. The standard of review of a trial court’s order either dismissing or refusing to dismiss a medical malpractice claim for failure to comply with the expert report provisions of section 13.01(d) of article 4590i is abuse of C. Causation discretion. See Walker v. Gutierrez, 111 S.W.3d 56, 62 Regent Care argues that the expert report filed by Dr. (Tex.2003); Am. Transitional Care Ctrs. of Tex., Inc. v. Davey is inadequate and, consequently, dismissal was Palacios, 46 S.W.3d 873, 877 (Tex.2001). An abuse of mandatory. Regent Care challenges only the causation discretion occurs when a trial court acts arbitrarily or element of the report, and contends the report does not unreasonably and “without reference to any guiding rules meet the statutory requirements because it is conclusory or principles.” Walker, 111 S.W.3d at 62. A clear failure and based upon mere conjecture and possibility.3 In by the trial court to analyze or apply the law correctly will particular, Regent Care complains that Dr. Davey’s constitute an abuse of discretion. Baylor Univ. Med. *346 report: (1) contains conclusory statements as to causation Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas and fails to link the alleged breaches to the injuries and 2007, pet. denied). damages alleged, and (2) fails to address the numerous allegations contained in the First Amended Original Petition. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(l ), 1995 Tex. Gen. Laws 985, 987 B. Sufficiency of the Expert Report [2] (repealed 2003). The Act defines an expert report as a written report by an expert that provides a fair summary of the expert’s [8] [9] As to causation, in the concluding paragraph, Dr. opinions regarding: (1) applicable standards of care, (2) Davey opines “the Breach of the Standard of Care as set the manner in which the care rendered failed to meet the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Regent Care Center of San Antonio II, Ltd. Partnership v...., 300 S.W.3d 343 (2009)

forth for each Physician and[/]or Nursing Home in this and care provided by Dr. Wilcox in December. See report was a proximate cause of the death of Dorothy Costello v. Christus Santa Rosa Health Care Corp., 141 Montgomery.” Regent Care argues that the one sentence S.W.3d 245, 247 (Tex.App.–San Antonio 2004, no pet.) conclusion on causation is insufficient to satisfy article (criticizing the expert report as insufficient because it 4590i. We agree. While a claimant is not required to does not “explain the causal connection between [the conclusively prove her case through a preliminary expert hospital’s] claimed omissions (failed to appropriately report, the report may not merely state conclusions *347 triage and evaluate) and [the patient’s] death”). Dr. about any of the elements. Palacios, 46 S.W.3d at 879. “ Davey’s opinion fails to articulate facts connecting the ‘[T]he expert must explain the basis of his statements to criticized deviations from the standard of care by Regent link his conclusions to the facts.’ ” Bowie Mem’l Hosp., Care with Mrs. Montgomery’s dehydration, sepsis, or 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d death. 882, 890 (Tex.1999)). Bowie cautions that no “ ‘magical words’ ” are required to establish the necessary causal Bowie cautions that no “ ‘magical words’ ” are required to link. See Bowie Mem’l Hosp., 79 S.W.3d at 53. But, to establish the necessary causal link. See Bowie Mem’l avoid being conclusory, “the expert must explain the basis Hosp., 79 S.W.3d at 53. But, to avoid being conclusory, of his statements to link his conclusions to the facts.” “the expert must explain the basis of his statements to link Bowie, 79 S.W.3d at 52 (emphasis added) (quoting Earle his conclusions to the facts.” Bowie, 79 S.W.3d at 52 v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). (emphasis added) (quoting *348 Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). Dr. Davey’s opinion Hargrave responds that the report provides “several contains no information about the cause of Mrs. statements about causation of Mrs. Montgomery’s injuries Montgomery’s dehydration; we are, therefore, left to infer (renal failure and sepsis) and eventual death, and provides that because Mrs. Montgomery presented at the hospital factual information to allow the court to understand his with severe dehydration, Regent Care violated a standard causation opinions.” Specifically Hargrave identifies the that caused the dehydration. See Villa v. Hargrove, 110 following two standards of care breached by Regent Care: S.W.3d 74, 79 (Tex.App.–San Antonio 2003, pet. denied) (noting that the expert report’s statement that defendants (i) The nursing home staff did not adequately and should have “ ‘recognized’ imminent sepsis and timely inform the physician of the increasing amount ‘hospitalized’ [plaintiff] does not explain how each failed of drainage from her back incision in December to meet the explicable standard of care” and is 2000, which reasonable staff in a similar situation conclusory). Accordingly, we conclude that Dr. Davey’s would do[, and;] expert report fails to establish a causal relationship between the alleged departure from a standard of care and (ii) The nursing home allowed [Mrs. Montgomery] Mrs. Montgomery’s dehydration, sepsis, or death. to become so dehydrated that she actually went into renal failure by 12/18/00. Her initial lab results Dr. Davey’s expert report required the trial court to infer indicate severe dehydration, which most likely causation, and under the four corners rule, the trial court occurred over several days and should have been is prohibited from doing so. See Bowie Mem’l Hosp., 79 physically apparent—i.e., not taking fluids, dry S.W.3d at 52. It, therefore, follows that Dr. Davey’s tongue, increasing lethargy. A reasonable nursing report was deficient as to causation and “the report does home in a similar situation would have noted her not represent a good-faith effort to comply with the decline and alerted the physician much earlier. [statutory requirements].” See id. at 51. Because we hold the expert report was inadequate as to causation, we need In essence, Hargrave criticizes the nursing staff for failing not address the allegations concerning negligence. See to inform the doctors about Mrs. Montgomery’s increased TEX.R.APP. P. 47.1 (requiring concise opinions drainage and for allowing her to become dehydrated. addressing only those issues “necessary to find disposition of the appeal”). Dr. Davey’s report provides that: “the cause of the renal failure was most likely dehydration, as it resolved just with fluid replacement” (emphasis added) thereby refuting dehydration as the cause of Mrs. Montgomery’s death. Additionally, he fails to link Regent Care’s failure CONCLUSION to timely inform a physician of increased drainage in December 2000 to Mrs. Montgomery’s subsequent death The expert report fails to link Regent Care to Mrs. in February 2001 due to sepsis.4 This is particularly true Montgomery’s dehydration, sepsis, or subsequent death; considering Mrs. Montgomery’s admission to the hospital thus, it does not contain the necessary elements of

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causation. Accordingly, because the expert report is therefore, reverse the order of the trial court and remand inadequate, the trial court abused its discretion in failing this matter to the trial court for further proceedings to dismiss the case against Regent Care, with prejudice, consistent with this opinion. and award reasonable attorney fees. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(e), (l ), 1995 Tex. Gen. Laws 985, 986–87 (repealed 2003). We,

Footnotes 1 Chief Justice Alma L. López, retired, not participating.

2 All health care liability claims filed before September 1, 2003, must comply with section 13.01(d) of article 4590i. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. 3 Because Regent Care does not dispute that the expert report fairly summarizes the elements of applicable standard of care and breach, we review Dr. Davey’s report as to the causation element only. 4 Although Hargrave suggests that Dr. Davey’s report includes several statements regarding causation of “Mrs. Montgomery’s injuries (renal failure and sepsis) and eventual death,” the report clearly provides that Mrs. Montgomery “died of sepsis under palliative Hospice care 2/18/01.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Shenoy v. Jean, Not Reported in S.W.3d (2011)

approximately three weeks after gallbladder surgery as a result of hypoxic encephalopathy. Dr. Zuniga performed 2011 WL 6938538 Only the Westlaw citation is currently available. the surgery. Dr. Shenoy, a cardiologist, cleared Jean for the surgery. SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. In two issues, Shenoy contends that the trial court abused its discretion in denying his motion to dismiss because MEMORANDUM OPINION Jean’s expert, Dr. Mazzei, an anesthesiologist, is not Court of Appeals of Texas, qualified to opine on the applicable standard of care for a Houston (1st Dist.). cardiologist, breach of that standard or causation, and his report does not adequately address standard of care, Vasudev SHENOY and Dario Zuniga, Appellant breach, or causation. In his sole issue, Zuniga contends v. that the trial court abused its discretion because (1) Penny JEAN, Individually, and as Wrongful Death Mazzei is not qualified to offer an opinion on the Beneficiary of Willie Ann Jean, Deceased, and on applicable standard of care for a surgeon, (2) the report Behalf of the Estate of Willie Ann Jean, Deceased, does not address how Zuniga caused Willie Ann’s death and on Behalf of all Wrongful Death Beneficiaries beyond mere conclusions, and (3) it is “impermissibly of Willie Ann Jean, Deceased, Appellee. cumulative”—that is, it does not adequately identify the particular breaches of the standard of care or causation No. 01–10–01116–CV. | Dec. 29, 2011. with respect to each separate defendant. We reverse and render an order dismissing the claims against Shenoy and On Appeal from the 151st District Court, Harris County, Zuniga. Texas, Trial Court Case No.2010–28302.

Attorneys and Law Firms

John G. Myers, Dee L. Dawson, Myers Doyle, Houston, Background for Appellant Vasudev Shenoy. Mazzei’s expert report provides the background facts in Robert G. Smith, David O. Cluck, Scott B. Novak, this case. The medical records are not before us, and we Lorance & Thompson, P.C., Houston, for Appellant Dario accept the factual statements for the limited purpose of Zuniga. this appeal.2 Monica C. Vaughan, for Penny Jean, Individually, and as Willie Ann Jean, age 57, was taken by ambulance to the Wrongful Death Beneficiary of Willie Ann Jean, emergency room of Doctor’s Hospital on February Deceased, and on Behalf of the Estate of Willie Ann Jean, 15,2008, complaining of abdominal pain, vomiting, chest Deceased, and on Behalf of all Wrongful Death pain of three hours’ duration, and difficulty breathing. As Beneficiaries of Willie Ann Jean, Deceased. part of her admission, Willie Ann gave an extensive Panel consists of Chief Justice RADACK and Justices medical history that included diabetes, hypertension, SHARP and BROWN. angina, surgery for a brain aneurysm, coronary artery disease, chronic obstructive pulmonary disease, hypercholesterolemia, and a prior myocardial infarction. Willie Ann reported she had experienced abdominal and chest pain for years without treatment. Based on a physical examination and ultrasound, the emergency MEMORANDUM OPINION room physician, Dr. Mireles, determined that she had polyps and diagnosed symptomatic gallstones in her HARVEY BROWN, Justice. gallbladder. He recommended that she undergo surgery to remove her gallbladder. He ordered a surgical *1 In this interlocutory appeal,1 Dr. Shenoy and Dr. consultation and a cardiology consultation. Zuniga appeal the trial court’s orders denying their motion to dismiss Penny Jean’s healthcare liability claim Shenoy, a cardiologist, saw her that same day, and noted for failure to serve an adequate expert report. See TEX. that Willie Ann had a two- to three-year history of CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West epigastric and right upper quadrant abdominal pain as 2011). Penny’s mother, Willie Ann Jean, died © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Shenoy v. Jean, Not Reported in S.W.3d (2011)

well as a history of a previous myocardial infarction and a cereberovascular accident (i.e., a stroke). Shenoy noted Penny filed a wrongful death medical malpractice suit that Willie Ann had suffered chest pain, accompanied by against Doctor’s Hospital, Mireles, Amin–Sankar, shortness of breath and sweating for four to six hours Shenoy, and Zuniga.3 Penny alleged that Shenoy and earlier that day. Willie Ann also had an abnormal Zuniga were negligent in clearing her mother for surgery. electrocardiogram (EKG). Shenoy’s diagnosis was that Specifically, Penny alleged that there was no emergency Willie Ann had sufferedan acute myocardial infarction, or urgent reason to remove her mother’s gallbladder and symptomatic gallstones, hypertension, and diabetes. that her mother had experienced abdominal and chest pain for years without treatment. In addition, Willie Ann had *2 Zuniga, a surgeon, performed the surgical consultation suffered an acute myocardial infarction before the three days after her initial admission, on February 18, gallbladder surgery and had a history of numerous health 2008. Zuniga confirmed the presence of gallstones, problems. Although she was stable, her history created diagnosed inflammation of the gallbladder, and cleared additional risks that made her a poor candidate for Willie Ann for surgery to remove her gallbladder the next surgery, and therefore Shenoy and Zuniga negligently day, February 19, subject to a cardiology assessment. Dr. cleared Willie Ann for the surgery. Shenoy saw Willie Ann again on February 18. A nuclear test was negative for ischemia. Shenoy also ordered an *3 Penny timely served an expert report from Mazzei, an EKG, the results of which are included in Mazzei’s report anesthesiologist.4 Mazzei’s report focused primarily on but the significance of which are not explained. Shenoy the anesthesiologist, Amin–Sankar. Concerning Shenoy cleared Willie Ann for the gallbladder surgery. and Zuniga, Mazzei stated that if Willie Ann “had not undergone elective surgery on February 19, 2008, she Dr. Amin–Sankar, an anesthesiologist, performed a would not have experienced the respiratory arrests that preoperative anesthesia assessment on February 19. He resulted from her extubation and she would have, in all noted Willie Ann’s past medical history, including her probability, survived.” acute myocardial infarction and abnormal EKG. Amin– Sankar cleared Willie Ann for surgery. Concerning Amin–Sankar, Mazzei’s report states, “In reasonable medical probability, if Ms. Jean had not been On February 19, 2008, Zuniga performed the surgery. The prematurely extubated, she would not have had the surgery was an “uneventful” procedure. After leaving the increased demands placed on her body which caused her post-anesthesia careunit (PACU), Willie Ann was to be subsequent respiratory arrest, anoxic brain injury and sent to the intensive care unit because she had fluctuating death.” He further explained in his general discussion of oxygen saturation levels, inadequate ventilation, and causation that the anesthesiologist should have been shallowness of breath. Shortly thereafter, she was aware of the risks of premature extubation. A fair reading transported back to the PACU and was placed on a of Mazzei’s report is that the premature extubation was ventilator. According to Mazzei’s report, Amin–Sankar the immediate cause of death: prematurely extubated Willie Ann ten minutes later.Within a few minutes, Willie Ann was in respiratory The time it takes for a patient’s arrest. She received CPR and medications, and Amin– anesthesia effect to lessen enough Sankarreintubated her. for them to be able to breathe independently varies from patient Thirty minutes later, Willie Ann was returned to the ICU. to patient and is affected by a According to Mazzei’s report, Jean became “agitated” and patient’s physiology and had trouble with the ventilator. She extubated herself and underlying disease processes. For a suffered a second respiratory arrest. She was re-intubated patient like Ms. Jean who had and given medications. An EEG the following day recently suffered a MI, it should showed possible hypoxic encephalopathy—brain damage have been expected that it would caused by lack of oxygen. A follow-up EEG the next day take her a significant period of time also indicated hypoxic encephalopathy. Mazzei’s report before she was capable of being does not discuss whether the EEGs differentiate between extubated to breathe on her own. any damage caused by the first extubation and arrest and This was not taken into account nor the second extubation and arrest. Willie Ann was was her clinical picture when she unresponsive to stimuli, including painful stimuli. On was untimely extubated [by the February 25, Willie Ann was transferred to another anesthesiologist]. This caused her facility for long-term care. She died on March 5, 2008 due to suffer a respiratory arrest which to the hypoxic encephalopathy. further stressed Ms. Jean’s ability © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Shenoy v. Jean, Not Reported in S.W.3d (2011)

to recover from surgery and lead to another respiratory arrest with anoxic encephalopathy and death.... I. Chapter 74 expert report requirements When Ms. Jean extubated herself, Pursuant to section 74.351, medical-malpractice plaintiffs the failure to address her increasing must provide each defendant physician and health care respiratory distress resulted in a provider with an expert report or voluntarily nonsuit the subsequent respiratory arrest action. Id. If a claimant timely furnishes an expert report, causing the anoxic encephalopathy a defendant may file a motion challenging the report’s which lead to her death. adequacy. Id. The trial court shall grant the motion only if it appears, after hearing, that the report does not represent Shenoy and Zuniga moved to dismiss, asserting that the a good faith effort to comply with the statutory definition report was inadequate to them. The trial court granted of an expert report. See id. § 74.351(l ). The statute Penny an opportunity to amend the report. After receiving defines an expert report as a written report by an expert the amended report, Shenoy and Zuniga again moved to that provides, as to each defendant, a fair summary of the dismiss due to inadequacies in the report. The trial court expert’s opinions, as of the date of the report, regarding: denied the motions to dismiss, and this interlocutory (1) the applicable standards of care; (2) the manner in appeal followed. which the care provided failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See id. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 85859 (Tex.App.-Houston [1st Dist .] 2006, no pet.). Standard of Review Although the report need not marshal all the plaintiff’s We review a trial court’s ruling on a motion to dismiss a proof, it must include the expert’s opinions on the three healthcare liability lawsuit pursuant to Chapter 74 of the statutory elements—standard of care, breach, and Texas Civil Practice and Remedies Code under an abuse causation. See Palacios, 46 S.W.3d at 878; Gray, 189 of discretion standard. See Am. Transitional Care Ctrs. of S.W.3d at 859. In detailing these elements, the report Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) must provide enough information to fulfill two purposes if (reviewing dismissal under predecessor statute, section it is to constitute a good faith effort: first, it must inform 13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232, the defendant of the specific conduct the plaintiff has 233 (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial called into question, and, second, it must provide a basis court abuses its discretion if it acts in an arbitrary or for the trial court to conclude that the claims have merit. unreasonable manner without reference to guiding rules Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011) or principles or if it clearly fails to analyze or apply the (citing Palacios, 46 S.W.3d at 879). A report that merely law correctly. Runcie, 274 S.W.3d at 232. In reviewing states the expert’s conclusions as to the standard of care, whether an expert report complies with Chapter 74, we breach, and causation does not fulfill these two purposes. evaluate whether the report “represents a good-faith Id. “ ‘[T]he expert must explain the basis of his effort” to comply with the statute. Strom v. Mem’l statements and link his conclusions to the facts.’ “ Wright, Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.- 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d Houston [1st Dist.] 2003, pet. denied). In making this 882, 890 (Tex.1999)). Furthermore, in assessing the evaluation, we must look only at the information report’s sufficiency, the trial court may not draw any contained within the four corners of the report. Bowie inferences, and instead must rely exclusively on the Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). information contained within the report’s four corners. See Scoresby, 346 S.W.3d at 556 (citing Palacios, 46 S.W.3d at 878).

Adequacy of Dr. Mazzei’s report II. Adequacy of report concerning causation *4 In their respective appeals, Shenoy and Zuniga attack Within his second issue, Shenoy contends that Mazzei’s various aspects of the adequacy of Mazzei’s report, report does not adequately address causation of Jean’s asserting it fails to meet the requirements of section injuries as a result of any negligence by Shenoy. As part 74.351 of the Texas Civil Practice and Remedies Code. of his sole issue, Zuniga similarly argues that the report is See TEX. CIV. PRAC. & REM.CODE § 74.351(a). inadequate in its statement of causation for his alleged malpractice.

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In the “Causation” section, the report further states: *5 An expert report must include a fair summary of the causal relationship between the defendant’s failure to Ms. Jean was a patient who was meet the appropriate standard of care and the injury, still recovering from her MI who harm, or damages claimed. TEX. CIV. PRAC. & never should have undergone REM.CODE ANN. § 74.351(r)(6). An expert cannot elective surgery. By continuing to merely state his conclusions or “provide insight” about recommend the gallbladder the plaintiffs’ claims, but must instead “explain the basis removal surgery, clearing her for of his statements to link his conclusions to the facts.” surgery and performing surgery, Wright, 79 S.W.3d at 52.In explaining causation, the Ms. Jean’s healthcare providers report must explain how the physician’s conduct caused breached and violated the standards the plaintiff’s injuries. Id. at 53. of care as set forth above and proximately caused her death.

Finally, Mazzei states for a patient like Willie Ann “it A. Assertions in Mazzei’s expert report regarding should have been expected that it would take her a causation significant period of time before she was capable of being Mazzei’s report asserts that the applicable standard of extubated to breathe on her own .” care breached by Shenoy included the responsibility to consider all of Willie Ann’s co-morbidities because these conditions placed Willie Ann “at an unacceptably high risk for complications from surgery and anesthesia.” The B. Adequacy of the report concerning Shenoy report identifies two risks from the surgery and *6 Mazzei’s report states that the medical conditions that anesthesia: (1) the stresses placed upon the cardiovascular rendered Willie Ann unfit for surgery caused the and respiratory system during surgery and anesthesia and complications that arose when she was extubated (“these (2) the depression of the central nervous system and the complications occurred because of the medical resulting risk of “experiencing cardiovascular and conditions”). What he fails to do is provide a factual respiratory problems.” It also generally states that a underpinning for that conclusion explaining why or how patient’s medical history may increase these risks. It does this occurred and whether it was all her medical not, however, quantify or otherwise describe the conditions listed in his report or her myocardial infarction magnitude of risk for respiratory problems for a person in particular that made the risk unacceptable and caused undergoing this surgery with normal health or compare her respiratory arrest. These omissions make the report that risk to the risk for a person with pre-existing medical conclusory and deficient for purposes of section 74.351. conditions like Willie Ann’s. According to the report, these risks are addressed by intubating the patient “so the anesthesiologist can ventilate the patients while their central nervous system is depressed” and that intubation 1. Expert reports cannot be conclusory to satisfy section normally continues “until the patient is able to again 74.351. breathe on [his] own.” The report continues: An opinion on causation stated without the underlying facts is conclusory. Jelinek v. Casas, 328 S.W.3d 526, .... Although complications arose as 536 (Tex.2010); Arkoma Basin Exploration Co., Inc. v. Ms. Jean was extubated following FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 surgery, these complications (Tex.2008). A conclusory opinion is not probative. City of occurred because of the medical San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009); conditions that should have lead see Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 Dr. Shenoy to conclude that Ms. F.3d 874, 881 (7th Cir.2011) (stating that mere Jean was not an appropriate conclusions are useless to the court). surgical candidate. If Ms. Jean had not undergone elective surgery on This rule is not a mere procedural hurdle. Juries—or in February 19, 2008, she would not the case of expert reports, judges—are often confronted have experienced the respiratory with conflicting expert testimony. One expert may testify arrests that resulted from her that X caused the plaintiff’s injuries while a different extubation and she would have, in expert may testify that X did not cause the plaintiff’s all probability, survived. injuries. The factfinder typically lacks the expertise necessary to form an opinion without expert assistance—

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this is why expert testimony is admitted in the first place. In Gray, this court held that the expert report contained a See TEX.R. EVID. 702. It is the expert’s explanation of conclusory statement concerning causation. 189 S.W.3d “how” and “why” causation exists that allows the at 860. The report stated that “[t]he failure to monitor and factfinder to weigh the credibility of the expert’s opinion detect the malpositioned left knee resulted in a dislocated and, when expert opinions conflict, to decide which left patella, severe pain and suffering, and subsequent testimony to disregard. Cf. In re Christus Spohn Hosp. medical treatment.” Id . at 858. Like the Supreme Court in Kleberg, 222 S.W.3d 434, 440 (Tex.2007) (detailing Jelinek, this court faulted the causation opinion for failing reasons why it is essential that the jury have access to the to “convincingly tie the alleged departure from the facts and data underlying an expert’s testimony in order standard of care to specific facts of the case.” Id. at 860. “to accurately assess the testimony’s worth.”). With respect to expert reports in healthcare liability claims, the expert’s explanation is what allows the trial court to determine whether the claim has merit. See Jelinek, 328 2. Mazzei’s report was conclusory on the issue of S.W.3d at 539; see also Scoresby, 346 S.W.3d at 552 causation (observing that Legislature enacted expert report Mazzei’s causation opinion regarding Shenoy’s decision requirement to elicit expert opinions at an early stage of to clear Willie Ann for surgery was conclusory. Although the litigation to allow the trial court to determine that a Mazzei’s report states that anesthesia depresses the basis exists for concluding that the claims have merit). respiratory system and places stress on the heart, the Expert testimony that merely states a final conclusion on report does not state that Willie Ann’s history of heart an essential element of a cause of action—such as problems or other conditions somehow made her more causation—without providing a factual basis for that likely to suffer respiratory arrest after premature conclusion does not aid the jury in its role as factfinder extubation than a person without those medical but, rather, supplants it. This, an expert may not do. See conditions. It does not state that her risks for the Greenberg Traurig of N.Y., P.C.v. Moody, 161 S.W.3d complications that she experienced—respiratory arrest— 56, 97 (Tex.App.-Houston [14th Dist.] 2004, no pet.) were enhanced because of her medical conditions. The (“Expert testimony is admissible to aid the jury in its report does generally discuss why Willie Ann’s other decision, but it may not supplant the jury’s decision.”). conditions affected her suitability for surgery, but does Similarly, an expert report that merely asserts that a not link her medical conditions to the complication she defendant physician’s breach caused the plaintiff’s injury experienced, respiratory arrest. It recognizes that a without providing a factual basis does not provide the trial depressed central nervous system and the resulting risk of court with the information necessary to evaluate the respiratory problems are normal byproducts of anesthesia merits of the plaintiff’s claim. See Jelinek, 328 S.W.3d at for even a person with normal health. In other words, 529. Mazzei’s report shows that the surgery itself created the risk and does not state how or why Willie Ann’s pre- *7 The requirement that the expert’s opinion must not be existing conditions changed those risks except in conclusory applies not only to trial testimony, but to conclusory terms. The report also states that those risks expert reports required by section 74.351(a). See Jelinek, can be addressed by leaving her intubated for “a 328 S.W.3d at 539–40; Wright, 79 S.W.3d at 53.In significant period of time” before extubation. Mazzei’s Jelinek, the Texas Supreme Court found the trial court report makes it clear that he believes that the premature abused its discretion in denying a motion to dismiss extubation was the immediate cause of her death. because the expert’s opinion on causation was conclusory. 328 S.W.3d at 539–40. The expert’s report stated that *8 A report may be sufficient if it states a chain of events “[the defendant’s] breach of the appropriate standard of that begin with a health care provider’s negligence and care in ‘reasonable medical probability, resulted in a end in a personal injury. See Patel v. Williams, 237 prolonged hospital course and increased pain and S.W.3d 901, 905 (Tex.App.-Houston [14th Dist.] 2007, suffering being experienced by [the plaintiff].’ “ Id. at no pet.); see also Engh v. Reardon, No. 01–09–00017– 539. The Court emphasized, “[T]he report says nothing CV, 2010 WL 4484022, at *8 (Tex.App.-Houston [1st more regarding causation.” Id. The Court faulted the Dist.] Nov. 10, 2010, no pet.) (mem.op.). But neither case report for offering no explanation “tying the conclusion to involved an event as remote as that involved here. the facts” or of “how and why the breach caused the injury based on the facts presented.” Id. at 539–40. This is In Patel, the Fourteenth Court of Appeals held that an precisely the information missing here: the how and the expert report sufficiently set forth causation when it why. presented a chain of events beginning with an allegedly negligent prescription and ending with the patient’s death. Patel, 237 S.W.3d at 905–06. Patel prescribed Williams

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Shenoy v. Jean, Not Reported in S.W.3d (2011)

an anti-dementia drug. Id. at 903. The report explained cause of Willie Ann’s death if all that is necessary is for that the drug was not FDA-approved for patients with an event to have preceded the injury. Williams’s ailment and that known side-effects of the drug included restlessness or a need to keep moving. Id. *9 To establish cause in fact, Mazzei had to discuss why Williams’s family withdrew consent for the drug, but the act or omission was a substantial factor in causing the Patel continued to prescribe it. Id. Williams was being fed injury and without which the harm would not have via feeding tube, and allegedly due to the restlessness occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 from the drug, she removed the tube. Id. The report (Tex.2005); see also Transcon. Ins. Co. v. Crump, 330 identified nurses’ notes that described Williams as S.W.3d 211, 214 (Tex.2010) (stating that plaintiff must agitated and stated that she kept pulling at her feeding prove “cause in fact (or substantial factor)”); Ford Motor tube. Id. The nursing staff improperly re-inserted the tube, Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.2007) (stating causing a small cut, which became infected because of the that producing cause requires that (1) the cause must be a contents of the feeding tube entering the cut. Id. The cut substantial cause of the event in issue and (2) it must be a developed into an abscess requiring multiple surgeries. Id. but-for cause, namely one without which the event would The report concluded that Williams’s death was caused by not have occurred). The report does not do so. Mazzei’s the infection from the improperly re-inserted feeding tube. report does not link facts from the alleged negligence in Id. at 904. The Fourteenth Court held that the trial court clearing her for surgery to Willie Ann’s death. Willie Ann did not abuse its discretion in determining the report was did not suffer a cardiac arrest during or after the surgery; not conclusory or speculative concerning causation. Id. at she suffered respiratory arrest and only after a premature 905–06. extubation. Mazzei does not state that Willie Ann suffered any unusual respiratory issue during the surgery itself; the The report in this case is distinguishable. The report surgical procedure was “uneventful.” And based on identifies the alleged breach—clearing Willie Ann for Mazzei’s report, it appears that any patient—healthy or surgery with her medical history—as did the report in with a history of medical conditions—who is prematurely Patel—prescribing an unapproved drug without consent. extubated will not sufficiently “maintain the oxygenation See id. But there the similarities end. In Patel, the report in the blood” and therefore is at risk for respiratory arrest. explained that a known side effect of the drug was The mere fact that Willie Ann was cleared for surgery restlessness, and the restlessness caused Williams to before her death does not mean that the clearance for become agitated and remove her feeding tube. Id . Willie surgery caused her death. Jelinek, 328 S.W.3d at 533 Ann likewise became agitated and removed her breathing (cautioning against the post hoc ergo propter hoc fallacy, tube. The report, however does not explain any that is, reasoning that an earlier event caused a later event connection between clearing Willie Ann for surgery or simply because it occurred first). her medical history and her agitation. While the report in Patel explained each step on the path of causation, the A causal link can be too attenuated to satisfy the causation report in this case does not.5 requirement for an expert report. See Gonzalez v. Sebile, No. 09–09–00363–CV, 2009 WL 4668892, at *4 There were “many links in the chain of events” that began (Tex.App.-Beaumont Dec. 10, 2009, pet. denied) with the pre-surgical clearance and ended with her death, (mem.op.). In Gonzalez, the physician was sued for but Mazzei failed to explain and support each link. While clearing the patient for surgery without obtaining a Mazzei explains how Willie Ann’s premature extubation cardiologist consultation despite an earlier open heart prevented her from “maintain[ing] the oxygenation in the surgery. 2009 WL 4668892at *2. According to the blood,” increasing her risk for respiratory arrest, he fails plaintiffs, the defendant anesthesiologist fell below the to explain what role her pre-existing medical conditions standard of care by failing to disqualify the plaintiff as not played in her respiratory arrest. It is here that we part fit for surgery in part because of the risks of general company with the trial court and find that it abused its anesthesia. Id. The court held that the report’s statement discretion. Mazzei does not link the alleged negligence— that the plaintiff would not have been injured if he had not clearing Jean for surgery—with the premature extubation undergone surgery in the first place was “too attenuated to except that one occurred before the other. That is not set forth evidence of causation with sufficient specificity enough; it is only a statement of “but for” causation. If to inform” the physician of the alleged misconduct and to that is all that section 74.351 requires to demonstrate allow the trial court to conclude that the plaintiff’s claims causation, almost any prior action taken by a health care had merit. Id . at *3. Mazzei’s report suffers from the provider could be said to cause the ultimate outcome. For same defect. example, the referral by the emergency room physician for the surgical consultation with Dr. Shenoy also was a While Mazzei’s report “provides insight” concerning the claims surrounding Jean’s death, it does not link the facts

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Shenoy v. Jean, Not Reported in S.W.3d (2011)

of the decision to clear her for surgery to the conclusion Shenoy, we conclude that, with respect to Zuniga, the that Shenoy’s alleged breach of the standard of care report fails to explain how and why Zuniga’s clearing of caused Jean’s death. It does not, therefore, provide a basis Willie Ann for surgery caused her death, fails to for the trial court to have concluded that causation was demonstrate the causal link necessary to have a demonstrated for Shenoy’s decision to clear Willie Ann meritorious claim, and is conclusory and inadequate. See for surgery. See Palaciois, 46 S.W.3d at 879 (report must Gray, 189 S.W.3d at 860; Jelinek, 328 S.W.3d at 539–40. provide basis for concluding that claims have merit). We conclude, therefore, that the report is conclusory and We sustain this portion of Zuniga’s sole issue.6 inadequate with respect to Shenoy. See Gray, 189 S.W.3d at 860; see also Jelinek, 328 S.W.3d at 539–40 (finding report inadequate concerning causation because it did not explain “how and why the breach caused the injury based on the facts presented”). Conclusion

*10 We sustain this portion of Shenoy’s second issue. We reverse and render an order dismissing the claims against Shenoy and Zuniga.

B. Adequacy of the report concerning Zuniga Penny has not alleged, and Mazzei’s report does not SHARP, J., dissenting. Dissent to follow. assert, that Zuniga negligently performed surgery; rather, the surgery is described as “uneventful.” For the same reasons that the report is inadequate as to causation for

Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2011).

2 See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002) (review of Chapter 74 report is limited to four corners of report). 3 Only Shenoy and Zuniga are parties to this appeal.

5 The report in this case is similarly distinguishable from the report in Engh. In Engh, the report identified the alleged breach- placing a surgical clip on the ureter during surgery. 2010 WL 4484022 at *6. The report also explained the consequences of a clipped ureter. Specifically, the report detailed how damage to and, eventually, loss of the kidney would result from clipped ureter. Id. Thus, this court found the report adequate, although Engh saw multiple other doctors and several months passed after his surgery and before he lost his kidney. Id. at *10. The report explained how the alleged breach caused the loss of Engh’s kidney, while the report here contains no explanation of how clearing a patient with a history like Willie Ann’s causes premature extubation, self-extubation, or the eventual death of the patient. 6 Because we have sustained Shenoy’s second issue in part and Zuniga’s sole issue in part, we do not address the other arguments raised by the parties. See TEX.R.APP. P. 47.1.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Smith v. Wilson, 368 S.W.3d 574 (2012)

appellee Janet Lynn Wilson’s suit for medical malpractice. We reverse the trial court’s order and remand 368 S.W.3d 574 Court of Appeals of Texas, for dismissal and determination of attorney’s fees. Austin.

Ted SMITH, D.O.; and Austin Regional Clinic, P.A., Appellants, Factual and Procedural Background v. Janet Lynn WILSON, Appellee. On August 6, 2007, Wilson’s son, Keith Michael Harris, went to see Dr. Smith, complaining of depression and No. 03–10–00387–CV. | Jan. 11, 2012. | Rehearing stress. Harris was twenty-three years old and had recently Overruled May 7, 2012. broken up with his girlfriend. Smith prescribed fluoxetine 1 with twelve refills and did not schedule a follow-up visit. Synopsis On September 5, 2007, Harris committed suicide. Background: Medical malpractice action was brought against physician and clinic, after patient who had been Wilson sued appellants, alleging that Smith was negligent prescribed anti-depressant committed suicide. The 53rd in prescribing fluoxetine and in not scheduling a follow- Judicial District Court, Travis County, Suzanne up visit with Harris, that ARC was vicariously liable as Covington, J., denied defendants’ motion to dismiss due Smith’s employer, and that their negligence was a to deficient expert report, and defendants appealed. proximate cause of Harris’s death. Wilson timely served an expert report by Dr. John T. Maltsberger. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). In his report, Maltsberger stated that the accepted standard of [Holding:] The Court of Appeals, David Puryear, J., held care that should be employed when prescribing fluoxetine that expert’s medical report was not good faith attempt to required a doctor to obtain a description of the patient’s comply with medical expert report requirements. “anxious and depressive symptoms” and a full psychiatric history. He opined that Smith breached that standard of care because he did not “obtain and record” Harris’s Reversed and remanded. symptoms of anxiety and depression or his full psychiatric history. Maltsberger stated that there was a generally recognized relationship between fluoxetine and suicide in Attorneys and Law Firms adolescents and young adults and that “adolescents with psychiatric disorders” had a greater risk of suicidal *575 Diana L. Faust, R. Brent Cooper, Richard C. Harrist, thoughts and behavior in “the first few months of Cooper & Scully, PC, Dallas, TX, for Appellant. treatment” when prescribed fluoxetine. Maltsberger *576 Dan Ballard, Stacey J. Simmons, Ballard & Simmons, concluded by stating, “[I]t is my opinion that more likely LLP, Austin, TX. than not, had Keith Harris not been prescribed fluoxetine, he would not have committed suicide.” Jay Harvey, Winckler & Harvey, LLP, Austin, TX, for Appellee. Appellants objected to the report, asserting it was deficient because it was conclusory with regard to Before Chief Justice JONES, Justices PURYEAR and causation. Appellants also noted that the report did not PEMBERTON. mention ARC at all, much less level any criticism against it, and argued that it therefore amounted to no expert report at all as to ARC. The trial court found that Maltsberger’s report qualified as a report but was inadequate, denied appellants’ motion to dismiss, and gave Wilson thirty days to remedy the report’s OPINION deficiencies. Wilson filed an amended report providing essentially the same opinions, but adding more detail to DAVID PURYEAR, Justice. the causation paragraph.2 Maltsberger changed his statements about the relationship between fluoxetine and Appellants Ted Smith, D.O., and Austin Regional Clinic suicidal thinking and behavior to refer only to (“ARC”) appeal from the denial of their motion to dismiss © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Smith v. Wilson, 368 S.W.3d 574 (2012)

adolescents, removing his prior inclusion of “young medical defendant may file an objection to the report’s adults.”3 Maltsberger concluded: sufficiency and a motion to dismiss the plaintiff’s liability claims. See id. § 74.351(a), (b).

Based on the information provided to me to date, it is [2] When the adequacy of a report is challenged, the trial my opinion that Keith Harris was a suicide-vulnerable, court should only sustain the objections if it determines depressed young man. As outlined in the studies “that the report does not represent an objective good faith described above, fluoxetine worsened his depression effort to comply with the definition of an expert report.” and agitated this patient, driving him beyond his Id. § 74.351(l ); see American Transitional Care Ctrs. of capacity for endurance. It is my opinion that more Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). likely than not, fluoxetine was a significant cause that The trial court should confine its inquiry to the four worsened the emotional burden of Mr. Harris’s illness corners of the report, which must include the expert’s and that without it he would not have committed opinion on all three statutory elements and “ ‘must suicide. explain the basis of [the expert’s] statements to link his Appellants filed another motion to dismiss, asserting that conclusions to the facts.’ ” Bowie Mem’l Hosp. v. Wright, the new report was deficient because Maltsberger “never 79 S.W.3d 48, 52 (Tex.2002) (quoting Earle v. Ratliff, connects the dots and says that based on the history or 998 S.W.2d 882, 890 (Tex.1999)). If the trial court finds a presentation that existed had Dr. Smith obtained an report deficient, the plaintiff’s claims against the medical adequate history, he should not have prescribed Prozac.” defendant are subject to dismissal unless the court grants Appellants further asserted: “one 30–day extension to the claimant in order to cure the deficiency.” Tex. Civ. Prac. & Rem.Code Ann. § [Maltsberger] never states that 74.351(c), (l ). If an expert report is not timely served, the based on the information available trial court must dismiss the claims against the medical to Dr. Smith at the time that he was defendant if the defendant files a motion to dismiss. Id. § treating Mr. Harris, Dr. Smith 74.351(b). should have concluded that Mr. [3] [4] Harris was suicide-vulnerable. As “A report need not marshal all the plaintiff’s proof,” an expert, he is supposed to analyze but to be considered a good-faith effort to satisfy the Dr. Smith’s actions based on the statute, it must do more than simply provide the expert’s information that was available to conclusions as to standard of care, breach, and causation. him at the time. His failure to do so Palacios, 46 S.W.3d at 878–79. Instead, the report “must renders his opinions conclusory, discuss the standard of care, breach, and causation with and therefore, not adequate. sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to Appellants also reasserted that because Maltsberger’s provide a basis for the trial court to conclude that the report made no reference to or criticism of ARC, it did not claims have merit.” Id. at 875. We review a trial court’s qualify as an expert report on those claims. The trial court denial of a motion to dismiss under section 74.351 for an denied appellants’ motion to dismiss, and appellants filed abuse of discretion, but if an expert report contains only this appeal. See id. § 51.014(a)(9) (West 2008). conclusions about the statutory elements, the trial court has “no discretion but to conclude ... that the report does not represent a good-faith effort” to satisfy the statute. Id. at 877, 880. Analysis After appellants objected to the sufficiency of [1] Within 120 days of the date a plaintiff files a health- Maltsberger’s original report, the trial court gave Wilson the opportunity to provide an amended report. The new care-liability claim, she must serve each physician or report, however, added very little to Maltsberger’s health care provider against whom claims are asserted statements related to Smith’s alleged breach of the (“medical defendant”) with at least one expert report that standard of care and causation, including only one summarizes the expert’s opinions “regarding applicable standards *577 of care, the manner in which the care additional paragraph that stated that Harris was “a rendered by the physician or health care provider failed to suicide-vulnerable, depressed young man” and that fluoxetine worsened his depression and led to his suicide. 4 meet the standards, and the causal relationship between Wilson asserts that this report “provides, in its four that failure and the injury, harm, or damages claimed.” Id. corners, that but for prescribing the medication the patient § 74.351(a), (r)(6). After an expert report is filed, a would not have committed suicide.” That may be true, but

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Smith v. Wilson, 368 S.W.3d 574 (2012)

despite Maltsberger’s opinion that fluoxetine worsened and Harris’s suicide, one of the required statutory Harris’s mental state and “without it he would not have elements of an expert report. See Tex. Civ. Prac. & committed suicide,” the report does not explain how Rem.Code Ann. § 74.351(r)(6) (expert report must taking more complete medical records from Harris would include “fair summary” of expert’s opinion as to “causal have made Smith aware that fluoxetine would put Harris relationship” between medical defendant’s failure to meet at risk for suicidal thoughts or action and *578 would standard of care and injury). have dissuaded Smith from prescribing fluoxetine. In other words, the report does not show how Smith’s Further, Maltsberger states that studies have shown a alleged breach of the standard of care caused the tragic relationship between fluoxetine and suicide in adolescents result. See Taylor v. Fossett, 320 S.W.3d 570, 577–78 and that fluoxetine increases the risk of suicidal thoughts (Tex.App.-Dallas 2010, no pet.) (report did not provide a and behavior in adolescents with psychiatric disorders. He factual explanation of how doctor’s delay in diagnosis or does not, however, state that fluoxetine should never be treatment caused complications); Estorque v. Schafer, 302 prescribed to adolescents, nor does he explain whether S.W.3d 19, 28–29 (Tex.App.-Fort Worth 2009, no pet.) fluoxetine is always inappropriate *579 for all (expert report left “gaps by not explaining how or why the adolescents, whether some adolescents can safely take it, physicians’ failure to consult a urologist or gynecologist or, more importantly, whether the findings related to caused worsening or progression of Shirley’s listed adolescents could even be applied to Harris, who at conditions” and did not explain how plaintiff would not twenty-three was not an adolescent. Without more, have been injured had defendants obtained consults from Maltsberger’s statement that a correlation exists between specialists); Johnson v. Willens, 286 S.W.3d 560, 565 fluoxetine and suicide in adolescents does not supply a (Tex.App.-Beaumont 2009, pet. denied) (report did not causal link between the prescribing of fluoxetine and explain what “normal dose” would have been, why Harris’s suicide. prescribed dose was excessive, what patient complained of, or what proper treatment would have been); see also To be sure, Maltsberger was not required to provide an Wright, 79 S.W.3d at 53 (affirming trial court’s exhaustive, lengthy summary of how Smith’s omissions determination that report was insufficient because it caused Harris’s suicide or what aspects of Harris’s lacked “information linking the expert’s conclusion ... to medical records led Maltsberger to conclude that Bowie’s alleged breach”); Gray v. CHCA Bayshore L.P., fluoxetine was an inappropriate and dangerous 189 S.W.3d 855, 859–60 (Tex.App.-Houston [1st Dist.] prescription, but he provides literally no summary of such 2006, no pet.) (affirming trial court’s finding that report information. We are left with no choice but to conclude was insufficient because it did not provide any specific that the report does not provide a fair summary of the information about what defendants should have done or causal link between Smith’s alleged shortcomings and “convincingly tie the alleged departure from the standard Harris’s death. See Taylor, 320 S.W.3d at 577–78; of care to specific facts of the case”). Estorque, 302 S.W.3d at 28–29; Johnson, 286 S.W.3d at 565. Because the report is insufficient as to Smith, it is Maltsberger’s report essentially states that (1) the also insufficient as to ARC, which Wilson sued solely for applicable standard of care required Smith to obtain and vicarious liability for Smith’s conduct. See Kettle v. record a description of Harris’s symptoms and a complete Baylor Med. Ctr., 232 S.W.3d 832, 842–43 (Tex.App.- psychiatric history, (2) Smith neglected to get a Dallas 2007, pet. denied) (affirming dismissal of suit description of the symptoms or a complete psychiatric against professional association due to deficiencies in history in deciding to prescribe fluoxetine, and (3) report about doctor’s conduct, stating that whether fluoxetine worsened Harris’s emotional state to the point association was directly or vicariously liable, “liability where he committed suicide. Maltsberger does not, still depends on conduct” of doctor). however, provide even the roughest summary of the information Smith should have gleaned from Harris’s We reverse the trial court’s order denying appellants’ psychiatric past or symptoms that would have stopped motion to dismiss. We remand the cause to the trial court Smith from prescribing fluoxetine or whether Harris’s for the determination of attorney’s fees, see Tex. Civ. symptoms or history actually contained information that Prac. & Rem.Code Ann. § 74.351(b), and for entry of a would have indicated that fluoxetine was not an final order dismissing Wilson’s claims against appellants. appropriate prescription.5 He does not provide facts to explain the causal link between Smith’s alleged breach

Footnotes 1 Fluoxetine is the generic name for Prozac, an anti-depressant. We will refer to the drug as fluoxetine except when quoting the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Smith v. Wilson, 368 S.W.3d 574 (2012)

record, in which the terms seem to be used interchangeably. 2 The amended report is two and one-half pages long, and the actual summaries of the standard of care, breach, and causation are covered in slightly over one page. 3 This is a noteworthy omission, since Harris, as a twenty-three-year-old man, was not what is generally considered an adolescent. See Webster’s Third New Int’l Dictionary 28 (2002) (defining adolescence as “the period of life from puberty to maturity terminating legally at the age of majority”); see also medical-dictionary.thefreedictionary.com/adolescence (last visited January 5, 2012, citing Mosby’s Med. Dictionary (2009), Miller–Keane Encyclopedia & Dictionary of Med., Nursing, & Allied Health (2003)) (defining adolescence as time between puberty and adulthood, usually running from between eleven and thirteen and between eighteen and twenty). 4 Although Wilson alleged in her petition that Smith breached the standard of care by not scheduling a follow-up visit with Harris, neither of Maltsberger’s reports discusses follow-up visits or states whether a follow-up should have been scheduled, when such a visit would have been appropriate, or whether it would have made a difference in this case. 5 Wilson cites to Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex.App.-Dallas 2010, no pet.), stating Bakhtari is a “strikingly similar case.” The expert report in Bakhtari, however, provided substantially more information than the report presented here. The Bakhtari report explained that the medication in question should only have been prescribed for very short-term use, no refills should have been given, the patient should have been warned of possible side-effects, the doctor should have consulted with or referred the patient to a mental-health professional, and the doctor should have provided or arranged for “on-going assessment and monitoring” of the patient’s condition. Id. at 496–97 nn. 9, 10. Maltsberger’s cursory report bears very little similarity to the specificity and explanations provided in the Bakhtari report.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

individually and d/b/a Sugar Land Orthopedic Associates (Dr. Blum). Strom appeals to challenge orders that 110 S.W.3d 216 Court of Appeals of Texas, dismissed those claims, with prejudice, on the grounds Houston (1st Dist.). that the expert reports she provided to support those claims under section 13.01(d) of article 4590i, the Medial Florence M. STROM, Appellant, Liability and Insurance Improvement Act, did not comply v. with section 13.01(r)(6) of that statute.1 We address (1) MEMORIAL HERMANN HOSPITAL SYSTEM whether Strom’s expert reports constituted a fair summary d/b/a Memorial Hospital Southwest and of the standard of care required by Dr. Blum and the Memorial Hospital System, and Dr. Henry Blum, Hospital, (2) whether the trial court erred by refusing to Individually and d/b/a Sugar Land Orthopedic grant Strom an extension of time to amend her expert Associates, P.A., Appellees. reports, (3) whether Dr. Blum waived his challenge to the adequacy of Strom’s expert reports by not asserting the No. 01–01–00756–CV. | May 29, 2003. challenge until 180 days after Strom filed suit, (4) whether the trial court erred in awarding $5,000 in Patient brought health-care liability claims against attorney’s fees to the hospital, (5) the constitutionality of hospital and doctor. The 164th District Court, Harris article 4590i, section 13.01(d), and (6) whether the trial County, Martha Hill Jamison, J., dismissed claims. Patient court erred in dismissing Strom’s claims of fraud, appealed. The Court of Appeals, Tim Taft, J., held that: intentional and fraudulent misrepresentations, and (1) reports of patient’s experts failed to provide a “fair “unnecessary surgery” against Dr. Blum. We affirm. summary” of the experts’ opinions as to the elements of standard of care and causation; (2) patient was not entitled to additional time to amend insufficient expert reports; (3) award of $5,000 in attorney fees as a sanction against patient was proper; (4) dismissal of patient’s action did Background not violate constitutional guarantees. Strom sued the hospital claiming that hospital surgical Affirmed. nursing staff improperly positioned her in preparation for neck surgery performed at the hospital October 4, 1996, Mirabal, J., dissented and filed opinion. and caused injury to her left knee. Strom also sued Dr. Blum, an orthopedic surgeon who later treated the left knee and performed a total knee replacement, claiming he Attorneys and Law Firms was negligent and grossly negligent because the surgery was unnecessary. Strom sued the hospital in October 1998 *218 John H. Holloway, Houston, for Appellant. and sued Dr. Blum a year later.

Sam A. Houston, Cruse, Scott, Henderson & Allen, On April 25, 2001, the hospital moved the trial court to Solace H. Kirkland, Andrews & Kurth, David W. Hodges, either dismiss Strom’s case against the hospital or require Mayor, Day, Caldwell & Keeton, L.L.P., Houston, for her to file a cost bond, on the grounds she had missed the Appellee. 90–day and the 180–day requirements of article 4590i, Panel consists of Justices TAFT, HANKS,* and section 13.01 by not filing expert reports in compliance MIRABAL.** with that statute. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(a), (d), (e)(3) (Vernon Supp.2003). With respect to the 180–day requirement, the hospital acknowledged that Strom had provided expert reports in attempted compliance with section 13.01(d),2 but argued that the reports were “insufficient as a matter of law” *219 OPINION under section 13.01(r)(6) because they did not provide a TIM TAFT, Justice. “fair summary” of the applicable standard of care, how it was breached, or the causal relationship between the Appellant, Florence M. Strom, filed health-care liability alleged breach and Strom’s injuries, as required by that claims against appellees, Memorial Hermann Hospital section. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § System d/b/a Memorial Hospital Southwest and Memorial 13.01(d), (r)(6) (Vernon Supp.2003). The hospital also Hospital System (the hospital) and Dr. Henry Blum, requested attorney’s fees, as authorized by section

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

13.01(e)(1). See TEX.REV.CIV. STAT. ANN.. art. 4590i, Dismissals with Prejudice for Insufficient Reports § 13.01(e)(1) (Vernon Supp.2003). After conducting a hearing on May 14, 2001, the trial court dismissed Strom’s first four points of error challenge dismissal of Strom’s claims against the hospital, with prejudice, and her claims against Dr. Blum as an abuse of discretion. In awarded the hospital $5,000 in attorney’s fees and costs. points of error five through seven, Strom challenges the dismissal against the hospital on the same grounds. *220 Four days later, on May 18, 2001, Dr. Blum filed a similar motion to dismiss. The trial court granted this All health-care liability claims must comply with section motion and dismissed Strom’s claims against Dr. Blum in 13.01(d) of article 4590i. TEX.REV.CIV. STAT. ANN.. an order signed on August 18, 2001. This order recites art. 4590i, § 13.01(d) (Vernon Supp.2003). Section that the trial court considered Strom’s counsel’s sworn 13.01(d) requires that a plaintiff asserting a health-care testimony, and also reflects the trial court’s findings and liability claim must, not later than 180 days after filing conclusions in granting relief. suit, either: (1) furnish an expert report, with supporting curriculum vitae, to counsel for each defending physician or health-care provider; or (2) voluntarily nonsuit the claim. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d) (Vernon Supp.2003). Article 4590i defines Standard of Review “expert report” as a written report that: [1] The abuse-of-discretion standard governs all article provides a fair summary of the 4590i, section 13.01 rulings. American Transitional Care expert’s opinions as of the date of Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); De the report regarding applicable Leon v. Vela, 70 S.W.3d 194, 197 (Tex.App.-San Antonio standards of care, the manner in 2001, pet. denied). This standard inquires whether the which the care rendered by the trial court acted without reference to any guiding rules or physician or health care provider principles. Garcia v. Martinez, 988 S.W.2d 219, 222 failed to meet the standards, and (Tex.1999); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, the causal relationship between that 858 (Tex.App.-Houston [1st Dist] 1999, no pet.). We may failure and the injury, harm, or not reverse a discretionary decision simply because we damages claimed. might have reached a different one. Mueller, 994 S.W.2d at 858. When resolving factual issues or matters TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6) committed to the trial court’s discretion, we may not (Vernon Supp.2003). substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Section 13.01 acknowledges that medical-malpractice [2] cases require expert testimony *221 and the statute was Dismissals with prejudice for lack of compliance with enacted to curtail frivolous lawsuits. See Palacios, 46 section 13.01 of article 4590i are sanctions. See S.W.3d at 877; Hart v. Wright, 16 S.W.3d 872, 876 TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(e) (Tex.App.-Fort Worth 2000, pet. denied). If the plaintiff (Vernon Supp.2003) (“... [T]he court shall, on the motion does not comply with section 13.01(d), and the defendant of the affected physician or health care provider, enter an seeks sanctions pursuant to section 13.01(e), the trial order awarding as sanctions....”); Palacios, 46 S.W.3d at court must grant the relief authorized by that section, as 877. In contrast to findings entered in support of a follows: dismiss the claim against that defendant with judgment after a bench trial under rule 296 of the Rules of prejudice; award costs and attorney’s fees to that Civil Procedure, findings entered in support of a sanction defendant; and require that any bond filed under section dismissing a cause, as entered here in the order granting 13.01 be forfeited to pay that award. TEX.REV.CIV. Dr. Blum’s motion, are not binding on the reviewing STAT. ANN.. art. 4590i, § 13.01(e)(1)-(3) (Vernon court, although they are “helpful” in determining whether Supp.2003); Palacios, 46 S.W.3d at 877; see also the trial court exercised its discretion in a reasonable and TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(l ) principled manner. See IKB Indus., Ltd. v. Pro–Line (Vernon Supp.2003) (“A court shall grant a motion Corp., 938 S.W.2d 440, 442 (Tex.1997) (appeal from challenging the adequacy of an expert report only if it dismissal as a sanction); Chrysler Corp. v. Blackmon, 841 appears to the court, after hearing, that the report does not S.W.2d 844, 852 (Tex.1992) (mandamus review of represent a good faith effort to comply with the definition dismissal as a sanction). of an expert report in Subsection (r)(6) of this section.”); In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924, 928 (Tex.App.-Texarkana 2001, orig. proceeding) (holding

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that, because noncompliance with section 13.01(d) summary of the expert’s opinions as to the elements of mandates dismissal with prejudice, trial court had no standard of care, breach, and causation is higher than the discretion to grant extension of time to comply; granting “fair notice” requirement of rule 47. mandamus relief to compel dismissal). [10] [11] Standard of care, the first element required by [3] [4] In assessing an expert report for compliance with section 13.01(r)(6) for health-care liability claims, is sections 13.01(d) and (r)(6) on a defendant’s section defined by what an ordinarily prudent health-care 13.01(e) motion, the dispositive inquiry is whether the provider or physician would have done under the same or report “represents a good-faith effort” to comply with similar circumstances. Palacios, 46 S.W.3d at 880. section 13.01(r)(6). See Palacios, 46 S.W.3d at 878 Whether a defendant breached the standard of care due a (citing TEX.REV.CIV. STAT. ANN.. art. 4590i, § patient cannot be determined without “specific 13.01(r)(6)). Because section 13.01 focuses on the report, information about what the defendant should have done the only information relevant to this inquiry lies within differently.” See id. (“While a ‘fair summary’ is the four corners of the report. Id. The trial court may not something less than a full statement of the applicable look beyond the report, therefore, in determining standard of care and how it was breached, even a fair compliance with the statute. Id. summary must set out what care was expected, but not given.”) (quoting from Palacios, 4 S.W.3d at 865 (Taft, [5] [6] [7] [8] The report need not marshal all the plaintiff’s J., dissenting)). proof or meet the requirements for evidence offered to support a summary judgment or at trial. Palacios, 46 S.W.3d at 878–79. The report must, however, include the expert’s opinion on each of the elements defined by A. Standard of Care—Dr. Blum section 13.01(r)(6), specifically, the standards of care, Regarding Dr. Blum, Strom relies upon the following how the defendant breached those standards, and the excerpts from the reports of Doctors Robert A. Callewart causal relationship between the breach and the plaintiff’s and George W. Sibley: injury. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r)(6). In setting out these elements, the report must: Dr. Callewart’s Report (1) inform the defendant of the specific conduct called into question by the plaintiff’s claims and (2) provide a I have reviewed the medical records furnished in the basis from which the trial court may conclude the claims case of Myrna Strom.... have merit. See Palacios, 46 S.W.3d at 879 (citing In February of 1997, she was seen by Dr. Henry Blum, Palacios v. American Transitional Care Ctrs., 4 S.W.3d an orthopedic surgeon, with her chief complaint 857, 865 (Tex.App.-Houston [1st Dist.] 1999), rev’d, 46 involving her left knee. X-rays showed degenerative S.W.3d 873 (Tex.2001) (Taft, J., dissenting)). A report changes with medial joint space narrowing and some that merely states the expert’s conclusions about the calcification in the notch, and his impression of torn standard of care, breach, and causation falls short of medial maniscus and chondromalacia. Again, he accomplishing these two purposes. Palacios, 46 S.W.3d reports that she had no prior history of knee related at 879. When the expert report provided in attempted complaints prior to surgery in question [neck surgery compliance with sections 13.01(d) and (r)(6) contains when the patient suffered a knee injury due to improper conclusory statements that do not alert the trial court or positioning by the operating room nurses]. Dr. Blum the defendant to the conduct the plaintiff complains of, performed the manisectomy on February 12, 1997. On section 13.01(l ) affords the trial court no discretion but to March 3, 1997, it is reported that she is doing fantastic conclude that the report does not represent the “good-faith after surgery. However, on April 19, 1997, Dr. Blum effort,” under section 13.01(l ), to provide “a fair indicates the patient needs a total knee replacement, summary” of the three elements required by section and on July 28, 1997, reports that she is scheduled for a 13.01(r)(6), and no discretion but to dismiss the cause as a total knee replacement on August 1, 1997. The total sanction, as provided by section 13.01(e). Palacios, 46 knee and carpal tunnel release were performed by Dr. S.W.3d at 880. Blum on August 1, 1997.... [9] Strom contends that the requirement of providing a Based upon the records, it is my expert opinion that “fair summary” is akin to providing “fair notice” in the total knee and carpal tunnel release were not pleadings pursuant *222 to rule 47 of the Texas Rules of medically indicated. There is no justification or very Civil Procedure. See TEX.R. CIV. P. 47. It is apparent, clear indication in the chart for the surgery. There is however, from the cases Strom cites that the Palacios some suggestion she had severe arthritis in the knee; standard for making a good-faith effort to provide a fair however, this is not consistent with what was reported © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

in the knee at the time of the prior surgery B. Standard of Care—The Hospital [manisectomy by Dr. Blum] or other evaluations of the Regarding the Hospital, Strom relies upon the following knee. If she had severe degenerative joint disease, this excerpts from the reports of Doctors Sibley and could not have occurred in several months time frame Callewart: from when she had the surgery of the neck or from the time of the February 12, 1997, surgery [manisectomy Dr. Sibley’s Report by Dr. Blum]. On 10/4/96, Dr. Berry operated on Florence and Based upon a reasonable medical probability, the decompressed the C7–T1 area. He noted that records indicate no medical basis of [sic] reason for postoperatively, the patient for the first time the total knee replacement in a woman in her complained of her left knee. middle 50’s who weighs 240 lbs, who had reportedly a normal knee prior to the operative room injury. On 11/1/96, an MRI of the left knee showed a tear of The surgery would therefore violate the standards of the posterior horn of the medial meniscus. Dr. Staewen care which would be expected to be exercised by a examined her and made the diagnosis of the dislocated reasonable and prudent orthopedic surgeon under the patella on the left with mild sprain of the lateral same or similar circumstances, and gross negligence collateral ligament. The medical records suggest that to submit such a patient to an unnecessary surgery. the patient, while being strapped in the prone position for a posterior cervical operative procedure on 10/4/96, *223 Dr. Sibley’s Report was placed in an untoward position. The result was injury of the left knee.... Based upon the medical records, the surgery of 8/1/97 [total knee and carpal tunnel syndrome surgeries] was On 2/3/97, Florence saw Dr. Blum complaining of her not indicated medically. This apparently was left knee.... unnecessary surgery. The medical records do not contain adequate indications for the surgery On 2/12/97 Dr. Blum did arthroscopic surgery of the performed on 8/1/97. A markedly obese 52–year–old left knee and did a partial medial meniscectomy and lady with a short right leg is not a candidate one chondroplasty of the left knee.... would expect to have a good result from a total knee replacement. The diagnosis of carpal tunnel CONCLUSION: Based upon the medical records, it syndrome seems to be inadequate grounds to justify appears that the patient went into the operation of the surgery of 8/1/97. The surgeries of 8/1/97 to the 10/4/96 without complaints of her left knee and knee and to the wrist were unnecessary. came out of the surgery with complaints of the left knee. It is also noted that the patient had a short (Emphases added by Strom’s brief for both reports.) right leg and degenerative disease of the left knee prior to the 10/4/96 surgery. Based on the medical [12] Examining the two reports for a showing of what an records, the patient’s left knee was negligently ordinarily prudent physician would have done under the injured while under anesthesia when she was moved same or similar circumstances, there simply is no from the supine position on the gurney to the prone statement of the standard of care. See Palacios, 46 position on the operating table (a twisting injury) S.W.3d at 880. To the extent that the reports state what an and/or when she was placed on the operating table ordinarily prudent physician would not have done, i.e., with the left knee inadequately padded. what Dr. Blum did, the reports are addressing a breach of the standard of care rather than the applicable standard of Dr. Callewart’s Report care itself. Because the reports fail to provide an adequate On May [2]8, 1996, Dr. Cech performed what is statement of the standard of care, it is unnecessary to described as inferior L4 and superior L5 examine further whether they fulfill the other two hemilaminectomies, bilateral *224 L4–5 medial requirements for expert reports pursuant to article 4590i, facetectomies and foraminotomies with decompression section 13.01(r)(6). See De Leon v. Vela, 70 S.W.3d at of the L4/L5 nerve roots and thecal sac. The patient 199. complained of continuing problems post-operatively; however, in a report dated July 8, 1996, she denied any Accordingly, we overrule Strom’s first four points of trouble with pain in the lower extremities. Based upon error. evaluation by MRI, x-ray, and a cervical myelogram in August and September 1996, Dr. John Berry suggested a cervical decompression bilaterally of C7–T1, and

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possibly re-explore C5–6 bilaterally. This surgery was performed on October 4, 1996, at the Memorial Accordingly, we overrule Strom’s fifth through seventh Hospital Southwest in Houston, Texas. This surgery points of error. resulted in the patient sustaining an acute traumatic injury in the patient’s left knee/leg; the patient being presumably in a sitting position. The patient suffered immediate pain and swelling of the knee postoperatively, with difficulty in walking. Failure to Grant Additional Time to File Complying Expert Report On October 23, 1996, it is reported that the patient complains of left knee pain and hobbling on the left In points of error eight through ten, Strom contends the knee, which is swollen, with decreased range of motion trial court abused its discretion by refusing to grant her an and tenderness. A MRI of the left knee on November 1, additional 30 days to either amend the reports *225 of her 1996, showed a horizontal tear through the posterior experts, Drs. Sibley and Callewart, or permit Strom to file horn of the medial meniscus, extending to the inferior their depositions as supplements to their reports. Strom articular surface near the free edge, and a small interior relies on section 13.01(g) of article 4590i, which provides surface tear of the medial meniscus at the junction of as follows: the posterior horn and body segment, and a grade I medial collateral ligament sprain. Notwithstanding any other provision of this section, if a The knee injuries described in the MRI do not occur claimant has failed to comply with when the customary and usual standards of care are a deadline established by exercised in the positioning and strapping a patient on Subsection (d) of this section and the operative table. However, the injuries can occur after hearing the court finds that the when the hospital’s operating room personnel fail to failure of the claimant or the take necessary precautions to pad and avoid the claimant’s attorney was not placement of the leg/knee in an abnormal position by intentional or the result of strapping the patient to prevent movement during conscious indifference but was the surgery. It is my expert opinion, based upon a result of an accident or mistake, the reasonable medical probability, that the knee injuries court shall grant a grace period of suffered by the patient were due to the failure of the 30 days to permit the claimant to operating room personnel to exercise ordinary care, or comply with that subsection. A negligence of the operating room personnel, in placing motion by a claimant for relief and maintaining her position on the operating room under this subsection shall be table. On a follow up of her knee pain January 8, 1997, considered timely if it is filed it was noted that ‘apparently during her recent surgery, before any hearing on a motion by her knees were taped in an untoward position, resulting a defendant under Subsection (e) of in some problems. Difficult to know exactly what, but this section. it is felt that she has some cartilage torn in the left knee.’ TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g) (Vernon Supp.2003). (Emphases added by Strom’s brief for both reports.) [14] The record contains two requests by Strom for [13] Although the above reports mention that Strom’s knee additional time. The first request appears in the injury does not normally occur when the usual standards concluding paragraphs of Strom’s response to the of care are exercised, and even note that the left knee hospital’s motion to dismiss. This request refers to must not have been properly positioned or padded, the possible secretarial or post-office error and appears to reports nevertheless fail to set out the applicable standard presume that the hospital was contending Strom did not of care. See Palacios, 46 S.W.3d at 880. Once again, the furnish the reports on a timely basis, as well as moving to most that can be said is that the reports address a breach dismiss pursuant to section 13.01(e)(3) because the of the standard of care by not properly positioning or reports were insufficient. Citing section 13.01(h) of article padding the leg and knee. Moreover, the reports are 4590i,3 which authorizes agreements of counsel to extend conclusory regarding causation, by failing to set out the the deadlines of sections 13.01(a) or (d), Strom’s counsel manner in which a failure to properly pad and position the provided an affidavit documenting his and the hospital’s leg and knee resulted in Strom’s knee injury. February 10, 1999 rule 11 agreement to extend the

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deadline to provide an expert report an additional day, to April 1, 1999. The affidavit also documented Strom’s To comply with section 13.01(g), however, Strom had to counsel’s instructions to his support staff in accordance file her request for additional time before any hearing on a with that agreement. Nothing in the record suggests that defendant’s motion to dismiss under section 13.01(e). See the hospital was disputing timeliness of receipt. Rather, TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g); see the record shows that, in contending Strom had not also Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex.App.- complied on a timely basis, the hospital had taken the Houston [1st Dist.] 2000, no pet.) (holding that trial court position that Strom had not provided complying expert did not abuse its discretion by denying motion, which reports by the 180–day deadline, which had therefore sought additional time to file section 13.01(d) expert expired. Moreover, in later documents filed with the trial report, but was filed after hearing on section 13.01(e) court, Strom’s counsel referred to his timely compliance motion to dismiss). Here, Strom did not request additional with the agreed, extended deadline as “undisputed.” Thus, time to comply with section 13.01(d) on the grounds she there was no basis on which to invoke section 13.01(h). raises in this appeal until after the hearing on the hospital’s motion to dismiss. Accordingly, her request Strom also cited section 13.0 2 (g) of article 4590i in was not timely. support of her first request for additional time. Section 13.0 2 (g) does not pertain, however, to expert reports. Because Strom’s request for additional time was not See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.02(g) timely, the trial court did not abuse its discretion by (Vernon Supp.2003). Strom may have mistakenly cited refusing to grant relief. We need not address, therefore, section 13.0 2 (g) instead of section 13.0 1 (g), on which whether Strom’s counsel’s “reasonable belief,” that the she relies in her brief to this Court. But the “accident or expert reports provided to support Strom’s claims mistake” documented in the affidavit supporting Strom’s complied with sections 13.01(d) and (r)(6) of article first request refers only to Strom’s having erroneously 4590i, constituted “accident or mistake” that warranted presumed, as we have just addressed, that the hospital did granting additional time to comply. not receive Strom’s reports by the agreed, extended deadline. The first request does not refer to the “accident We overrule points of error eight through ten. or mistake” on which Strom later relied and on which she relies in this appeal.

Strom’s second request for additional time appears in her June 15, 2001 motion for rehearing of the trial court’s Deadline to Challenge Expert Reports May 24, 2001 order dismissing her case against the [15] hospital, with prejudice. In addition to claiming that her In point of error 11, Strom contends Dr. Blum waived expert reports complied with section 13.01 of article his right to challenge Strom’s expert reports by waiting 4590i, Strom alternatively requested that the trial court until 180 days after Strom filed suit. Strom maintains that “extend the time to file or furnish an amended report or Dr. Blum had the reports and was aware of their contents, the depositions of Dr. Sibley and Dr. Callewart as an but “sat on his hands” and waited until after the last amendment *226 to the prior reports.” Strom again cited possible date for Strom to provide a complying expert section 13.01(h) of article 4590i, governing agreements of report. Article 4590i imposes no deadline for challenging counsel to extend preliminary deadlines for filing expert an expert report under section 13.01(d). See Gonzalez v. reports. Section 13.01(h) does not apply to relief El Paso Hosp. Dist., 68 S.W.3d 712, 717 (Tex.App.-El requested of a court. Paso 2001, no pet.); Chisholm v. Maron, 63 S.W.3d 903, 908 (Tex.App.-Amarillo 2001, no pet.); Hargrove v. Strom again cited “accident or mistake” in her second Denno, 40 S.W.3d 714, 716 (Tex.App.-San Antonio 2001, request, but asserted reasons that differed from her first no pet.). request. Here, Strom clearly invoked the provisions of section 13.01(g) of article 4590i by asserting that her Accordingly, we overrule point of error 11. failure to comply with section 13.01(d) was neither intentional nor the result of conscious indifference, but the result of accident or mistake. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(g). Strom’s claim of Award of Attorney’s Fees to Hospital “accident or mistake” is premised on her attorney’s sworn affidavit attesting to his “reasonable belief” that the expert [16] In point of error 12, Strom contends that the trial court reports he provided complied with article 4590i. Strom abused its discretion in awarding the Hospital $5,000 for reasserts that contention on appeal. attorney’s fees without evidence to support the claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

Strom also argues that she was entitled to a jury trial on for medical negligence be brought under article 4590i. the issue of reasonable attorney’s fees. Strom’s attempt to recast her claims of negligence in advising her of the necessity of surgery as fraud and Article 4590i, section 13.01(e)(1) provides that the trial intentional and fraudulent misrepresentations regarding court shall award reasonable attorney’s fees as a sanction unnecessary surgery do not remove those claims from for a plaintiff’s failure to comply with the requirements of article 4590i. See Gomez v. Matey, 55 S.W.3d 732, 735 section 13.01(d). TEX.REV.CIV. STAT. ANN.. art. (Tex.App.-Corpus Christi 2001, no pet.) (holding claims 4590i, § 13.01(e)(1) (Vernon Supp.2003). By providing of fraud and misrepresentation regarding unnecessary that the trial court assess the sanction, the plain language surgery fell within scope of article 4590i). *227 of the statute does not contemplate that a jury determine what is reasonable as attorney’s fees. Strom Accordingly, we overrule both of Strom’s points of error does not provide any authority that would permit the jury thirteen. to determine this issue. [17] In contending that no evidence supported the trial court’s award of attorney’s fees, Strom ignores affidavit testimony that $7,500 represented a reasonable award of Conclusion attorney’s fees in this case. This suggested fee was $2,500 more than the amount the trial court actually awarded. In We affirm the judgment of the trial court. We deny all disputing the evidentiary support for the award of pending motions. attorney’s fees, Strom appears to argue that something more than an affidavit is required, but again offers no authority to support that contention. Justice MARGARET GARNER MIRABAL, dissenting. We hold that the trial court did not err by awarding attorney’s fees without convening a jury or requiring testimony beyond proof by affidavit. Accordingly, we MARGARET GARNER MIRABAL, Justice, dissenting. overrule point of error 12. In my opinion, the timely-filed expert report of Dr. Robert A. Callewart, M.D., represents a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of the Medical Liability and Insurance Constitutional Challenges to Section 13.01 Improvement Act,1 and therefore the trial court abused its discretion when it dismissed the plaintiff’s claims with In two points of error 13, Strom contends that (1) the prejudice. Accordingly, I respectfully dissent. dismissal of her suit with prejudice violates her state and federal constitutional guarantees of due process of law, I note that this is not a case involving the failure to file an equal protection of the law, and right to a jury trial; and expert report, and *228 this is not a case involving the (2) the trial court abused its discretion in dismissing filing of a late expert report. Rather, this case involves a Strom’s claims for fraud, intentional and fraudulent timely-filed expert report. The issue is whether the misrepresentations, and “unnecessary surgery” because defendants’ challenges to the adequacy of the expert these causes of action are not issues relating to a “medical report should have been granted, resulting in the dismissal standard” under article 4590i. of plaintiff’s case with prejudice. [18] Strom correctly asserts that article 4590i places a If a plaintiff timely files an expert report and the heavy burden on medical malpractice plaintiffs to comply defendant moves to dismiss because of the report’s with very specific requirements and that the sanction for inadequacy, the trial court must grant the motion “only if failing to comply is severe, but neither violates it appears to the trial court, after hearing, that the report constitutional guarantees. See Schorp v. Baptist Mem’l does not represent a good faith effort to comply with the Health Sys., 5 S.W.3d 727, 737–38 (Tex.App.-San definition of an expert report in Subsection (r)(6) of this Antonio 1999, no pet.); McGlothlin v. Cullington, 989 section.” TEX.REV.CIV. STAT. ANN.. Art. 4590i, § S.W.2d 449, 452–53 (Tex.App.-Austin 1999, pet. denied). 13.01(l ) (Vernon Supp.2003) (emphasis added); Bowie [19] Memorial Hosp. v. Wright, 79 S.W.3d 48, 51–52 As for Strom’s contention that her claims exceeded the (Tex.2002). To constitute a “good-faith effort,” the report scope of article 4590i, settled law compels that all claims must provide enough information to fulfill two purposes:

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(1) it must inform the defendant of the specific conduct fail to take necessary precautions to pad and avoid the plaintiff has called into question, and (2) it must the placement of the leg/knee in an abnormal provide a basis for the trial court to conclude that the position by strapping the patient to prevent claims have merit. Bowie, 79 S.W.3d at 52. A Court movement during surgery. reviews the information contained within the four corners of the report to determine whether it constitutes a “good- faith effort” to provide a fair summary of the expert’s C. Breach opinions about the standard of care, breach, and causal connection between breach and injury. Id. It is my expert opinion, based upon a reasonable medical probability, that the knee injuries suffered by the patient were due to the failure of the operating room personnel to exercise *229 ordinary care, or negligence of the operating room personnel, in Claims against the Hospital placing and maintaining her position on the operating room table. Dr. Callewart’s report reads, in relevant part:

D. Causal Connection

A. Injury The knee injuries described in the MRI do not occur when the customary and usual standards of care are Based upon evaluation by MRI, x-ray, and a cervical exercised in the positioning and strapping a patient myelogram in August and September 1996, Dr. John on the operative table. However, the injuries can Berry suggested a cervical decompression bilaterally occur when the hospital’s operating room personnel of C7–T1, and possibly re-explore C5–6 bilaterally. fail to take necessary precautions to pad and avoid This surgery was performed on October 4, 1996, at the placement of the leg/knee in an abnormal the Memorial Hospital Southwest in Houston, Texas. position by strapping the patient to prevent This surgery resulted in the patient sustaining an movement during surgery.... On a follow up of her acute traumatic injury in the patient’s left knee knee pain January 8, 1997, it was noted that probably associated with improper positioning of ‘apparently during her recent surgery, her knees were padding of the knee/leg, the patient being taped in an untoward position, resulting in some presumably in a sitting position. The patient suffered problems. Difficult to know exactly what, but it is immediate pain and swelling of the knee felt that she has some cartilage torn in the left postoperatively, with difficulty walking. knee.’.... It is my expert opinion, based upon a reasonable medical probability, that the knee injuries On October 23, 1996, it is reported that the suffered by the patient were due to the failure of the patient complains of left knee pain and hobbling operating room personnel to exercise ordinary care, on the left knee, which is swollen, with or negligence of the operating room personnel, in decreased range of motion and tenderness. A placing and maintaining her position on the MRI of the left knee on November 1, 1996, operating table. showed a horizontal tear through the posterior Does Dr. Callewart’s report provide enough horn of the medial meniscus, extending to the information to inform the defendant Hospital of the inferior articular surface near the free edge, and specific conduct the plaintiff has called into question, a small inferior surface tear of the medial and to provide a basis for the trial court to conclude meniscus at the junction of the posterior horn that the claims have merit? and body segment, and a grade I medial collateral ligament sprain. Clearly, Dr. Callewart’s report gives notice that the manner in which the hospital personnel strapped the plaintiff to the operating table was called into question. B. Standard of Care The standard of care requires hospital personnel to take necessary precautions to pad and avoid the placement of The knee injuries described in the MRI do not occur the leg/knee in an abnormal position by strapping when the customary and usual standards of care are (standard of care); a medical report indicated that exercised in the positioning and strapping a patient plaintiff’s knees were taped in an untoward position on on the operative table. However, the injuries can the operating table, and based on a reasonable medical occur when the hospital’s operating room personnel

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

probability, it was Dr. Callewart’s expert opinion that the reports that she had no prior history of knee plaintiff’s knee injuries were due to the failure of the related complaints prior to surgery in question. hospital personnel to properly place and maintain Dr. Blum performed the menisectomy on plaintiff’s position on the operating table (breach and February 12, 1997. On March 3, 1997, it is causal connection). reported that she is doing fantastic after surgery. However, on April 19, 1997, Dr. Blum This case is unlike the Palacios case. American indicates the patient needs a total knee Transitional Care Centers v. Palacios, 46 S.W.3d 873 replacement, and on July 28, 1997, reports that (Tex.2001). In Palacios, the patient fell from his bed, and she is scheduled for a total knee replacement on the expert opined that “precautions to prevent [the August 1, 1997. patient’s] fall were not properly utilized.” Id. at 880. The supreme court held that this was not a statement of a (Emphasis added). Dr. Blum performed the total standard of care because neither the trial court nor the knee replacement surgery on the plaintiff. defendant would be able to determine from this statement if the doctor “believes that the standard of care required [defendant] to have monitored Palacios more closely, B. Standard of Care restrained him more securely, or done something else entirely.” Id. In contrast, the expert’s report in the present The surgery would ... violate the standards of care case puts the trial court and the defendant on notice of the which would be expected to be exercised by a conduct complained of, i.e. that the hospital personnel reasonable and prudent orthopedic surgeon under the failed to properly pad and place the leg/knee in a normal same or similar circumstances. position when strapping the plaintiff to the operating table—by taping the leg in an untoward and abnormal C. Breach position, a tearing injury was caused to the plaintiff’s knee. Based upon the records, it is my expert opinion that the total knee and carpal tunnel releases were not Under the guiding principles set out in Bowie and medically indicated. There is no justification or very Palacios, Dr. Callewart’s report constitutes a good-faith clear indication in the chart for the surgery. There is effort to provide a fair summary of the doctor’s opinions some suggestion she had severe arthritis in the knee; about the standard of care, breach and causal connection. however, this is not consistent with what was Accordingly, the trial court abused its discretion when it reported in the knee at the time of the prior surgery granted the defendant’s motion challenging the adequacy or other evaluations of the knee. If she had severe of the report resulting in a dismissal, *230 with prejudice, degenerative joint disease, this could not have of the plaintiff’s claims against the hospital. occurred in a several months time frame from when she had the surgery of the neck or from the time of February 12, 1997, surgery.

Based upon a reasonable medical probability, Claims against Dr. Blum the records indicate no medical basis of reason Dr. Callewart’s report reads, in relevant part: for the total knee replacement in a woman in her middle 50’s who weighs 240 lbs, who had reportedly a normal knee prior to the operative room injury. The surgery would therefore A. Injury violate the standards of care which would be expected to be exercised by a reasonable and “I have reviewed the medical records furnished in prudent orthopedic surgeon under the same or the case of Myrna Strom....” similar circumstances, and gross negligence to submit such a patient to unnecessary surgery. In February of 1997, she was seen by Dr. Henry Blum, an orthopedic surgeon, with her chief complaint involving her left knee. X-rays D. Causal Connection showed degenerative changes with medial joint space narrowing and some calcification in the Based upon the records, it is my expert opinion that notch, and his impression of torn medial the total knee and carpal tunnel releases were not meniscus and chondromalacia. Again, he medically indicated. There is no justification or very

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Strom v. Memorial Hermann Hosp. System, 110 S.W.3d 216 (2003)

clear indication in the chart for the surgery.... Based breached his or her duty to a patient upon a reasonable medical probability, the records cannot be determined absent indicate no medical basis of reason for the total knee specific information about what the replacement.... defendant should have done Does Dr. Callewart’s report provide enough differently. information to inform the defendant Doctor of the specific conduct the plaintiff has called into question, Id. at 880. In the present case, the expert’s report and to provide a basis for the trial court to conclude identified the standard of care for an orthopedic surgeon, that the claims have merit? and specifically stated what care was expected, but not given, i.e., a diagnosis and action based on what is *231 It is clear from Dr. Callewart’s report that the medically indicated, not the performance of unnecessary conduct called into question is the performance of a total major surgery. knee replacement operation, when such surgery was unnecessary. The report provides a fair summary of Dr. Once again, under the guiding principles set out in Bowie Callewart’s opinions about the standard of care (that and Palacios, Dr. Callewart’s report constitutes a good- which would be expected to be exercised by a reasonable faith effort to provide a fair summary of his opinions and prudent orthopedic surgeon under the same or similar about the standard of care, breach, and causal connection. circumstances), breach (performing “unnecessary” knee Accordingly, the trial court abused its discretion when it replacement surgery, which is “not medically indicated”, granted the defendant doctor’s motion challenging the for which there is “no justification ... in the chart”), and adequacy of the report resulting in a dismissal, with causal connection (the breach of the applicable standard prejudice, of the plaintiff’s claims against the defendant, of care caused the injury of unnecessary knee replacement Dr. Blum. surgery).

With regard to standard of care, the Texas Supreme Court stated in Palacios: CONCLUSION The standard of care for a hospital We should sustain appellant Strom’s points of error one is what an ordinarily prudent through seven, reverse the judgment, and remand the case hospital would do under the same to the trial court. or similar circumstances. .... Identifying the standard of care is critical: Whether a defendant

Footnotes * This case was originally submitted to a panel consisting of Justices Taft, Mirabal, and retired Justice Jackson B. Smith, Jr. Upon Justice Smith’s recusal, Justice George C. Hanks, Jr., who was appointed to this Court on December 31, 2002, is participating by assignment. ** The Honorable Margaret Garner Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment. 1 See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(d), (r)(6) (Vernon Supp.2003).

2 Strom provided her experts’ reports to counsel for the hospital on April 1, 1999. It is undisputed that the experts’ reports were timely by agreement of counsel signed in accordance with rule 11 of the Rules of Civil Procedure and as authorized by section 13.01(h) of article 4590i. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003); TEX.R. CIV. P. 11. 3 TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(h) (Vernon Supp.2003)

1 TEX.REV.CIV. STAT. ANN.. Art. 4590i, § 13.01(r)(6) (Vernon Supp.2003).

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End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)

169 S.W.3d 241 Court of Appeals of Texas, OPINION Corpus Christi–Edinburg. Opinion by Justice GARZA. Sherrie TAYLOR, Appellant, v. Sherrie Taylor appeals from the decision of the trial court CHRISTUS SPOHN HEALTH SYSTEM to grant a motion to dismiss her cause of action for CORPORATION, d/b/a Christus Spohn Hospital medical malpractice based on the inadequacy of her Shoreline, Team Health Southwest, L.P., Arthur G. expert report. Because the trial court did not abuse its Wright, Jr., M.D., Coastal Cardiology Association, discretion in determining that Taylor’s expert report failed Charles J. Schecter, M.D., Raymond H. Graf, M.D. to comply with the statutory requirements established by a/k/a Ray Graf, M.D., Appellees. the Medical Liability Insurance Improvement Act,1 we affirm. No. 13–03–368–CV. | July 29, 2004. | Rehearing Overruled Aug. 30, 2005. Taylor, individually and as heir and representative of the estate of Ronald C. Taylor, deceased, brought suit against appellees, Christus Spohn Health System d/b/a Christus Synopsis Background: Widow, individually and as heir and Spohn Hospital Shoreline, Team Health Southwest, L.P., representative of deceased husband’s estate, brought Arthur G. Wright Jr., M.D., Coastal Cardiology medical malpractice action against various health care Association, Charles J. Schecter, M.D., and Raymond H. defendants for alleged negligent failure to manage and Graf, M.D. Taylor alleged that the death of her husband, timely diagnose husband’s cardiac condition and for Ronald, was due to appellees’ negligence in failing to failure to perform tests necessary for diagnosis. manage and timely and accurately diagnose Ronald’s Defendants filed motion to dismiss based on expert cardiac condition and in failing to perform tests necessary report. Following a hearing, the 319th District Court, to diagnose and recognize Ronald’s condition. In Nueces County, Thomas Greenwell, J., granted the compliance with article 4590i, section 13.01 of the Texas motion. Widow appealed. civil statutes, Taylor filed an expert report by James Watson, M.D., accompanied *243 by Dr. Watson’s curriculum vitae. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2004).2 [Holding:] The Court of Appeals, Garza, J., held that expert report was not good faith effort to comply with The defendants filed a motion to dismiss based on Dr. statutory requirements. Watson’s expert report. The trial court granted their motion after a hearing.3 Taylor now brings this appeal alleging that the trial court abused its discretion by Affirmed. granting the motion to dismiss. Specifically, Taylor argues that she demonstrated the required good faith effort to show compliance with the requirements of article Attorneys and Law Firms 4590i, section 13.01. Appellees respond that the report was conclusory and that it improperly grouped all the *242 Cage Wavell, Corpus Christi, for appellant. defendants together, thereby failing to specifically address the standard of care and breach of duty with respect to William A. Abernethy, John S. Langley, Meredith, each defendant. Donnell & Abernethy, Clay E. Coalson, Donnell & Abernethy, Thomas F. Nye, Douglas M. Kennedy, Brin & Brin, P.C., Corpus Christi, for appellees.

Before Justices Y NEZ, RODRIGUEZ, and GARZA. Applicable Law and Standard of Review

In order to bring a medical malpractice claim, a plaintiff must comply with the requirements for filing an expert report. Under the statute applicable at the time this report was filed, a claimant had to provide for each physician or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)

health care provider one or more expert reports within one regarding breach and causation); Rittmer v. Garza, 65 hundred and eighty days of filing a health care liability S.W.3d 718, 722–23 (Tex.App.-Houston [14th Dist.] claim. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2001, no pet.) (expert report inadequate because it 1, 1995 Tex. Gen. Laws 985 (repealed 2003). 4 An expert referred to defendants collectively and did not explain report is defined as “a written report by an expert that causal relationship between each defendant’s individual provides a fair summary of the expert’s opinions as of the acts and injury); Whitworth v. Blumenthal, 59 S.W.3d date of the report regarding applicable standards of care, 393, 396 (Tex.App.-Dallas 2001, no pet.) (“the report ... the manner in which the care rendered by the physician or does not identify any particular defendant to which it health care provider failed to meet the standards, and the applies and instead generally asserts ‘the health care causal relationship between that failure and the injury, providers’ failed to meet the standard of medical care.”). harm, or damages claimed.” TEX. CIV. PRAC. & [6] [7] REM.CODE ANN. § 74.351(r)(6). We review the trial court’s ruling on the adequacy of an expert report under an abuse of discretion standard. [1] [2] [3] [4] When presented with an expert report, the trial Palacios, 46 S.W.3d at 877; Doades, 94 S.W.3d at 671. court must determine whether it represents a good faith Under this standard, the appellate court may not disturb effort to comply with the statutory definition of expert the trial court’s resolution, even if the appellate court report. American Transitional Care Ctrs. of Tex., Inc. v. would have decided differently, unless the resolution is Palacios, 46 S.W.3d 873, 878 (Tex.2001). The statute shown to be arbitrary and unreasonable. Doades, 94 requires that the report include a fair summary of the S.W.3d at 671; see Walker v. Packer, 827 S.W.2d 833, expert’s opinions for each defendant. Palacios, 46 S.W.3d 839–40 (Tex.1992). A trial court’s resolution of a factual at 878. If the court finds, after a hearing, that the report issue is arbitrary and unreasonable if the appellant does not represent a good faith effort to comply with the establishes that the trial court could reasonably have statute, the court shall “grant a motion challenging the reached only one decision. Doades, 94 S.W.3d at 671. adequacy of [the] expert report.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l ). Although an expert report does not need to marshal and present all the plaintiff’s proof of malpractice, it must include the expert’s opinion on each of the elements identified in the Analysis statute. Palacios, 46 S.W.3d at 878. Essentially, the report [8] must: (1) inform the defendant of the specific conduct the Taylor asserts that the expert report she submitted plaintiff has called into question; and (2) provide a basis adequately fulfilled the requirements of article 4590i, for the trial court to conclude that the claims have merit. section 13.01. Appellees argue in response that the report Id. at 879. A report that merely states the expert’s was inadequate because it lumped all of them together, conclusions about each element (standard of *244 care, failed to delineate what each individual party was breach, and causation) does not fulfill these purposes. Id. supposed to do, and failed to identify how each failed to perform. Appellees also allege that the report is [5] An expert report may not assert that multiple conclusory with regard to negligence and causation. defendants are all negligent for failing to meet the standard of care without providing an explanation of how Dr. Watson’s expert report opined generally that: each defendant specifically breached the standard and how that breach caused or contributed to the cause of [T]he cause of death in the case of injury. See Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d Ronald Clayton Taylor was 636, 638 (Tex.App.-Dallas 2003, pet. denied) (“the expert myocardial infarction due to report must provide, for each defendant, a fair summary coronary artery disease and ... his of the expert’s opinions with respect to ... standard of death, more likely than not, would care, breach of that standard and causation.”); Wood v. have been avoided had the patient Tice, 988 S.W.2d 829, 831 (Tex.App.-San Antonio 1999, undergone diagnostic cardiac pet. denied) (“The report must specifically refer to the imaging and cardiac catheterization defendant and discuss how that defendant breached the prior to his demise, as should have applicable standard of care.”). Collective assertions of been done, but was not done. The negligence against various defendants are inadequate. See, failure to diagnose and treat this e.g., Doades v. Syed, 94 S.W.3d 664, 671–72 (Tex.App.- condition was negligence by Dr. San Antonio 2002, no pet.) (expert report inadequate Wright (ER Physician), Team because it failed to set forth standard of care for each Health Southwest, L.P., Coastal defendant individually and contained mere conclusions Cardiology, Charles Schecter, M.D.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)

(cardiologist), Raymond Graf, to whom the information should have been directed, nor M.D. (cardiologist), and Spohn does he explain who should have been responsible for Hospital Shoreline Emergency transmission of Ronald’s chart to cardiology. See Rittmer, Room, and that negligence was a 65 S.W.3d at 722–23. Dr. Watson also fails to explain proximate cause of the injury and how the failure to achieve effective communication was a death of Ronald Clayton Taylor. proximate cause of Ronald’s death; he asserts that the information should have been included on Ronald’s *245 The report goes on to describe what occurred when assessment prior to his undertaking an exercise stress test Ronald came to the emergency room at Spohn Hospital administered by a cardiologist, but does not explain how, complaining of chest pains. if at all, this information would have altered the outcome of the cardiology assessment and stress test, and, further, Ronald was apparently examined in the emergency room how any of this relates to the cause of Ronald’s death. See by Dr. Wright and sent to the cardiologist without being Palacios, 46 S.W.3d at 879. discharged. Dr. Watson asserts that it was negligent of Dr. Wright, Team Health Southwest, and Spohn Hospital to At the end of the report, Dr. Watson asserts that, given fail to complete discharge procedures and patient Ronald’s patient history, the standard of care requires that education with Ronald before sending him to cardiology. diagnostic imaging be undertaken to assess the presence He does not, however, present the standards of care of existent myocardial damage and that an eight-to- relevant to each of the three different parties. Dr. Watson twelve-hour period of assessment should have elapsed further asserts that such negligence was a proximate cause prior to discharge in order to have definitively determined of Ronald’s death. However, he fails to explain what each whether there was a need to proceed with cardiac of these three parties should have done and what they catheterization. He notes that this was not done for failed to do. This portion of the expert report fails to meet Ronald and concludes, “[a]s such the care of Dr. Wright the standard because it is both conclusory in nature and (ER Physician), Team Health Southwest, L.P., Coastal fails to specify each defendant’s individual negligent Cardiology, Charles Schecter, M.D. (cardiologist), conduct. See Palacios, 46 S.W.3d at 879. Raymond Graf, M.D. (cardiologist), and Spohn Hospital Shoreline Emergency Room was negligent, and this In the next paragraph of the report, Dr. Watson discusses negligence was a proximate cause of the death of Ronald the interaction between the various doctors and asserts Clayton Taylor.” This portion of the report fails to state that the standard of care required effective what each defendant should have done in order to meet communication between the various care providers the standard of care, what each defendant failed to do, and regarding the patient’s condition. He concludes without how *246 such failure led to Ronald’s death. See id. Dr. further explanation: Watson simply states that various procedures that should have occurred did not, without specifying which party In the case of Ronald Clayton was responsible for undertaking which procedures. The Taylor, such communication was parties he lists include an emergency room physician, a not effectively achieved and as hospital, and a cardiology association, among others, each such was negligent and below the of which owed different duties to the deceased; however, ordinary standard of care and this Dr. Watson presents only a single standard of care and negligence was a proximate cause asserts that it is equally applicable to all parties involved. of the death of Ronald Clayton Taylor. Specifically, there is no Under our appellate standard of review, we may not record of the patient’s chart reverse a trial court’s determination regarding an expert accompanying him to the report unless that determination is clearly arbitrary and consultative appointment. unreasonable. See Doades, 94 S.W.3d at 671. Having reviewed the expert report provided by Taylor, we find it Dr. Watson names all six appellees as having failed to was not an abuse of discretion for the trial court to meet this standard of medical care. conclude that the report did not represent a good faith effort to comply with section 13.01(r)(6). See Palacios, Again, this portion of the report does not meet the 46 S.W.3d at 880. Thus, the trial court did not err in statutory requirements for expert opinions, as Dr. Watson dismissing the case. Accordingly, we affirm. fails to address the standard of care for each defendant and how each defendant failed to meet such standard. He does not explain which defendant should have communicated information about Ronald’s condition, or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241 (2004)

Footnotes 1 Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (former TEX.REV.CIV. STAT. ANN.. art. 4509i § 13.01) (repealed 2003) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon Supp.2004)). 2 Taylor filed her report in March of 2003. At the time, section 13.01 of article 4509i established the statutory requirements for expert reports. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985 (repealed 2003). Article 4590i was repealed in September of 2003, and the requirements for filing an expert report now appear in section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351. 3 Taylor filed a motion requesting that she be granted an additional thirty days in order to file a compliant expert report. The trial court denied this motion after a hearing, a decision that Taylor has not appealed to this Court. 4 Under the current version of the statute, a claimant has one hundred and twenty days to file this report. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a).

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Taylor v. Fossett, 320 S.W.3d 570 (2010)

order and remand to the trial court for the limited purposes of determining Dr. Taylor’s reasonable 320 S.W.3d 570 Court of Appeals of Texas, attorney’s fees and costs and for entry of a final order Dallas. dismissing Fossett’s claims with prejudice.

Roosevelt TAYLOR, Jr., M.D., Appellant, v. LaToya FOSSETT, Appellee. Background No. 05–09–01271–CV. | Aug. 25, 2010. Given the procedural posture of this case, we draw the facts from the allegations in Fossett’s petition. On Synopsis November 1, 2006, Fossett was admitted under Dr. Background: Patient brought healthcare liability action Taylor’s care to Mesquite Community Hospital for against physician, arising out of contraction of methicillin induction of labor. There were complications with the resistant staphylococcus aureus (MRSA). The County delivery and Dr. Taylor performed a cesarean section Court at Law No. 4, Dallas County, William Ken birth. A few days later, an infection developed in the Tapscott, Jr., denied physician’s motion to dismiss. cesarean section incision. According to Fossett, Dr. Physician appealed. Taylor failed to culture the infection and failed to document abdominal fascial integrity during Fossett’s hospitalization. Fossett was discharged from the hospital on November 4, 2006. She was seen by Dr. Taylor in his [Holding:] The Court of Appeals, Fillmore, J., held that office three days later on November 7, 2006. Dr. Taylor expert’s report failed to adequately establish causation evaluated Fossett’s condition and prescribed the oral element required in action. antibiotic Keflex. According to Fossett, Dr. Taylor failed at that time to culture the incision infection and to document abdominal fascial integrity. On November 9, Reversed and remanded with instructions. 2006, Fossett went to the Baylor Hospital Emergency Department. She was diagnosed with cellulitis, hospitalized, and placed on intravenous antibiotics. A Attorneys and Law Firms bacterial culture showed the infection to be methicillin resistant staphylococcus aureus (MRSA). Fossett was *571 J. Wade Birdwell, D. Michael Wallach, Leslie Ann hospitalized for two weeks. While hospitalized, Fossett Dillon Thomas, Wallace, Andrews & Stouffer, P.C., Fort underwent two surgical procedures relating to wound Worth, TX, for Appellant. dehiscence and drainage from the incision. According to Fossett, she continues to suffer bowel and abdominal Douglas Michael Wood, Law Firm of Douglas Wood, pain, has permanent scarring and disfigurement of her Dallas, TX, for Appellee. abdomen, and will require plastic surgery. Before Justices MOSELEY, BRIDGES and FILLMORE. Fossett filed suit against Dr. Taylor. Fossett alleges that Dr. Taylor’s failure *572 following a caesarian section to timely diagnose and treat her for an incision infection, wound dehiscence and cellulitis involving MRSA proximately caused her to suffer injuries and otherwise OPINION avoidable surgical intervention. Fossett contends Dr. Taylor was negligent in (1) failing to diagnose incision Opinion By Justice FILLMORE. infection, wound dehiscence and cellulitis; (2) failing to timely communicate with the patient and document This interlocutory appeal follows the trial court’s refusal cellulitis; and (3) failing to document abdominal fascial to dismiss LaToya Fossett’s health care liability claims integrity, obtain bacterial cultures, evaluate for and against Roosevelt Taylor, Jr., M.D. Dr. Taylor contends administer appropriate medical care, including the trial court erred by denying his motion to dismiss, hospitalization, and treat spreading cellulitis. which challenged the sufficiency of Fossett’s initial and supplemental expert reports, and by denying him attorney’s fees and costs. We reverse the trial court’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Taylor v. Fossett, 320 S.W.3d 570 (2010)

Pursuant to section 74.351 of the Texas Civil Practice and Dr. Taylor’s failure to meet to (sic) the applicable Remedies Code, Fossett served Dr. Taylor with an expert standard of care, as described above, in all medical report prepared by Dr. Adam S. Levine, a practicing probability, was the proximate cause of the injuries obstetrician and gynecologist, in support of her claims. In LaToya Fossett suffered. As a result of Dr. Taylor’s his expert report, Dr. Levine asserted that Dr. Taylor failure to meet the applicable standard of care LaToya deviated from the accepted standard of care for post- Fossett required: *573 1) At least one surgical wound operative surgical wound infection and his deviations exploration that might not have been necessary; 2) A from the standard of care were the proximate cause of hospital stay that was longer than should have been Fossett’s complications and injuries. In his report, Dr. necessary had she been admitted 48 hours sooner; 3) A Levine stated: longer recovery than should have been necessary had she been admitted 48 hours sooner; 4) a larger scar; and Dr. Taylor provided LaToya Fossett with ante- and 5) continued abdominal pain and discomfort. post- natal care. Dr. Taylor performed LaToya Fossett’s cesarean section, which included making the Dr. Taylor challenged the legal sufficiency of Dr. surgical incision which ultimately became infected. Dr. Levine’s report as failing to comply with the statutory Taylor breached the standard of care because: 1) requirements of section 74.351 and moved to dismiss neither a weight nor a blood pressure were recorded on Fossett’s health care liability claims with prejudice the first post-operative visit for LaToya Fossett; 2) pursuant to section 74.351(b). See TEX. CIV. PRAC. & aside from a foul odor and draining, no information REM.CODE ANN. § 74.351(b) (Vernon Supp. 2009) (if was recorded with regard to when the pain became health care liability claimant does not serve expert report worse, when the drainage began, or whether there was as required, the trial court must, upon motion by affected any redness or swelling; 3) no documentation was health care provider or physician, dismiss claim with provided with regard to the size or extent of the wound prejudice). He argued the report was legally insufficient infection and there was no documentation regarding to satisfy the statutory requirements because Dr. Levine’s fascial integrity; 4) no bacterial wound cultures were opinions regarding the alleged violations of the standard taken; 5) Dr. Taylor prophylactically prescribed the of care and the alleged causal connection between such same antibiotics that had no impact earlier in LaToya violations and injuries and damages claimed by Fossett Fossett’s pregnancy; 6) Dr. Taylor failed to order re- were conclusory. After a hearing, the trial court concluded evaluation within 24 to 48 hours and instead ordered it Dr. Levine’s report was insufficient under section 74.351. for a week later; 7) Dr. Taylor ordered wound The trial court, however, granted Fossett a thirty-day compresses but failed to document or instruct LaToya extension under section 74.351(c) “to cure a causation Fossett any (sic) form of wound care, irrigation or deficiency” in her expert’s report: cleaning. namely, whether in Dr. Levine’s Because Dr. Taylor documented a surgical wound opinion, Dr. Taylor’s failure to infection with “copious pus” and failed to provide meet the appropriate standard of LaToya Fossett with treatment in accord with the care in post-surgical wound care standard of care, Fossett required admission to Baylor more likely than not or within Hospital. Unfortunately, this admission was within 48 reasonable medical probability hours of Dr. Taylor’s evaluation and order to follow-up caused LaToya Fossett to have one one week later. At Baylor Hospital, LaToya Fossett or more exploratory surgeries. The was evaluated according to the standard of care and current language in the report is ultimately subjected to two surgical wound insufficient regarding the explorations, a prolonged hospital stay, a larger exploratory surgeries. incision and scar, and long-standing abdominal pain. Had Dr. Taylor appropriately evaluated and treated See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c) LaToya Fossett in a timely fashion according to the (trial court may grant extension to party that failed to standard of care, she might have been admitted to the serve expert report because timely served report found to hospital earlier and required only one, if any, surgical be deficient). The trial court overruled any other wound explorations (sic). She would most likely not objections to the report. have required two surgeries. Had Dr. Taylor appropriately evaluated and treated LaToya Fossett she Within the thirty-day extension period, Fossett served a would not have required as prolonged a hospital stay supplemental report prepared by Dr. Levine. Dr. Levine’s because the infection got worse each day and smaller supplemental report stated: infections are easier to treat than larger infections.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Taylor v. Fossett, 320 S.W.3d 570 (2010)

My original opinions regarding the medical care Dr. Dr. Levine was sufficient and satisfied the requirements Taylor provided LaToya Fossett remain unchanged. Dr. of section 74.351. See TEX. CIV. PRAC. & REM.CODE Taylor failed to meet an appropriate standard of care ANN. §§ 74.351(l ), 74.351(r)(6). for a post-surgical wound. Specifically, Dr. Taylor failed to timely examine, culture, investigate or treat The trial court denied Dr. Taylor’s motion to dismiss. what was an obvious post-surgical wound Pursuant to section 51.014(a)(9) of the civil practice and complication. Dr. Taylor’s failure to examine, culture, remedies code, Dr. Taylor brought this interlocutory investigate or treat LaToya Fossett’s surgical wound appeal challenging the trial court’s denial of his motion to more likely than not and within a reasonable degree of dismiss. See TEX. CIV. PRAC. & REM.CODE ANN. § medical probability caused LaToya Fossett to have one 51.014(a)(9) (Vernon 2008). or more exploratory surgeries and debridements. Dr. Taylor should have appropriately examined LaToya Fossett.

Further, Dr. Taylor should have recognized the Standard of Review and Applicable Law possibility of MRSA infection because MRSA [1] [2] infections are common iatrogenic infections in Dr. Taylor asserts the trial court abused its discretion hospitals. Had Dr. Taylor examined or cultured LaToya when it denied his motion to dismiss because Dr. Levine’s Fossett’s surgical wound, Dr. Taylor might have original and supplemental expert reports, whether properly diagnosed MRSA and begun treatment with considered separately or collectively, are legally and appropriate antibiotic therapy it (sic) is more likely than factually insufficient and conclusory. We review a trial not that LaToya Fossett would not have required court’s order on a motion to dismiss a health care liability subsequent surgeries which resulted in significant pain claim for an abuse of discretion. See Am. Transitional and permanent scarring. Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Nexion Health at Terrell Manor v. Taylor, Finally, it is my opinion, based on a reasonable degree 294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A of medical probability, that Dr. Taylor deviated from trial court has no discretion in determining what the law is the accepted standard of care in this case and that his or in applying the law to the facts. See Walker v. Packer, deviations from the standard of care caused LaToya 827 S.W.2d 833, 840 (Tex.1992) (orig. *575 proceeding). Fossett’s injuries. An abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. Id. *574 Dr. Levine’s supplemental report added one opinion [3] on causation that was not contained in his original report: Under section 74.351 of the civil practice and remedies “Had Dr. Taylor examined or cultured LaToya Fossett’s code, any person who brings suit asserting a health care surgical wound, Dr. Taylor might have properly liability claim must, within 120 days of filing the original diagnosed MRSA and begun treatment with appropriate petition, provide an expert report for each physician or antibiotic therapy it (sic) is more likely than not that health care provider against whom a claim is asserted. LaToya Fossett would not have required subsequent TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). surgeries which resulted in significant pain and permanent “Expert report” means a written report that provides a fair scarring.” summary of the expert’s opinions as to the applicable standards of care, the manner in which the care rendered Dr. Taylor again objected to the report and moved to failed to meet those standards, and the causal relationship dismiss Fossett’s claims for failure to serve a sufficient between that failure and the injury, harm, or damages expert report under section 74.351. He contended that Dr. claimed. TEX. CIV. PRAC. & REM.CODE ANN. § Levine’s opinions set forth in his original and 74.351(r)(6); see also, Bowie Mem’l Hosp. v. Wright, 79 supplemental reports, whether the reports are considered S.W.3d 48, 52 (Tex.2002). An expert report must provide separately or collectively1, were conclusory and lack enough information to fulfill two purposes if it is to sufficient factual specificity with regard to the violations constitute an objective, good faith effort to comply with of the standard of care alleged against Dr. Taylor and the the definition of an expert report under section alleged causal connection between any such violations 74.351(r)(6). The report must inform the defendant of the and the injuries and damages claimed by Fossett. He specific conduct the plaintiff has called into question and further contended that the supplemental report, like the must provide a basis for the trial judge to conclude the original report, merely concluded that Dr. Taylor caused claims have merit. Leland v. Brandal, 257 S.W.3d 204, Fossett’s injuries by breaching the standard of care. After 206–07 (Tex.2008); Palacios, 46 S.W.3d at 879. a hearing, the trial court found that the expert report of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Taylor v. Fossett, 320 S.W.3d 570 (2010)

[4] [5] [6] An expert report need not marshal all the opinion that had Dr. Taylor examined or cultured plaintiff’s proof. Wright, 79 S.W.3d at 52. However, it Fossett’s surgical wound, he might have properly must do more than merely state the expert’s conclusions diagnosed MRSA and begun treatment with appropriate about the standard of care, breach, and causation; it must antibiotic therapy, thereby avoiding subsequent surgeries, explain the basis of the expert’s statements and link his pain, and permanent scarring. conclusions to the facts. Id. The report must contain sufficiently specific information to demonstrate causation Dr. Levine’s supplemental report incorporated his original beyond conjecture. See, Farishta v. Tenet Healthsystem report. Therefore, in this analysis we collectively refer to Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort the original and supplemental reports as Dr. Levine’s Worth 2007, no pet.). The report must not be conclusory “report.” Dr. Levine’s report emphasized the significance in its explanation of causation; it must explain the basis of of the 24 to 48 hour period following Fossett’s office its statements sufficiently to link its conclusions to the evaluation by Dr. Taylor: facts. Wright, 79 S.W.3d at 52; Quinones v. Pin, 298 S.W.3d 806, 810 (Tex.App.-Dallas 2009, no pet.); see Because of the possibility of worsening infection also, Arkoma Basin Exploration Co. v. FMF Assocs. resulting in significant morbidity and mortality, 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex.2008) [women with post-operative surgical incision] require (quoting BLACK’S LAW DICTIONARY 308 (8th ed. both careful and frequent assessment of their surgical 2004)) (defining conclusory as “[e]xpressing a factual wounds every 24 to 48 hours by qualified personnel inference without stating the underlying facts on which such as their physician, by wound management the inference is based”). Thus, courts have reasoned that personnel, or by home health nursing. an expert report that describes causation in terms of mere possibilities does not accomplish the purpose of providing Antibiotics for minor infections may be given by “a basis for the trial court to conclude that the claims have mouth; provided the patient is seen within 24 to 48 merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298 hours to assess that the infection is not getting worse. S.W.3d at 815–16. Dr. Taylor failed to either admit LaToya Fossett to the [7] In determining whether a report complies with the hospital or to re-evaluate her within 24 to 48 hours [of requirements of section 74.351(r)(6), the court may not Fossett’s office evaluation by Dr. Taylor]. look beyond the report itself, because all information The standard of care for evaluation and treatment of a relevant to the inquiry should be contained within the post-operative surgical wound infection require[s] ... document’s four corners. Wright, 79 S.W.3d at 52; Nexion either admitting the patient to a hospital or arranging Health at Terrell Manor, 294 S.W.3d at 791. A trial court for close outpatient follow-up and re-evaluation within must grant a motion to dismiss a plaintiff’s claims for 24 to 48 hours.... failure to file an adequate expert report only if it appears to the court, after hearing, that the report does not According to Dr. Levine’s report, Fossett was represent an objective good-faith effort to comply with hospitalized “within 48 hours” of her post-operative visit the statutory definition of an expert report. TEX. CIV. in Dr. Taylor’s office. Fossett’s arrival at Baylor Hospital PRAC. & REM.CODE ANN. § 74.351(l ); see also, occurred within the time frame Dr. Levine determined a Palacios, 46 S.W.3d at 878. re-evaluation to be appropriate and consistent with the applicable standard of care. Had Dr. Taylor scheduled Fossett for re-evaluation 48 hours after her post-operative office visit, consistent with the standard of care Analysis articulated by Dr. Levine, the progression of Fossett’s infection and wound dehiscence presumably would have [8] Dr. Levine opined in his original report2 that Dr. Taylor been no more advanced or severe than the condition breached the applicable *576 standard of care by failing actually treated at Baylor Hospital following Fossett’s to order re-examination of Fossett within 24 to 48 hours arrival at the hospital within that same 48–hour period. of her post-operative office visit, causing Fossett to suffer (1) at least one surgical wound exploration that might not Dr. Levine did not assert in his report that had Fossett have been necessary, along with resulting scarring and been re-evaluated by Dr. Taylor within 48 hours of her continued pain and discomfort and (2) hospitalization and post-operative office visit, she would have avoided recovery that was more lengthy “than should have been hospitalization and surgical treatment. Rather, Dr. Levine necessary had she been admitted [to the hospital] 48 hours opined that the duration of Fossett’s hospitalization and sooner.” Dr. Levine’s supplemental report added the recovery would not have been longer than it “should have been.” Dr. Levine provided no facts in his report © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Taylor v. Fossett, 320 S.W.3d 570 (2010)

concerning the expected duration of Fossett’s complications or surgical interventions. Dr. Levine hospitalization and recovery in the absence of the alleged explained neither the impact of the alleged 48–hour delay negligence of Dr. Taylor. Accordingly, Dr. Levine’s in re-evaluation of Fossett on the nature and severity of report presented no factual basis for a conclusion that Dr. the underlying infection nor in what manner the infection Taylor’s alleged negligence resulted in a period of developed or changed in that period of time necessitating hospitalization and recovery that was longer than it would surgery that otherwise would not have been required. Dr. have been in the absence of such alleged negligence. Levine’s report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the *577 [9] Dr. Levine’s report claimed that as a result of Dr. additional surgery, pain and scarring without actually Taylor’s failure to meet the applicable standard of care, providing a factual basis for the trial court to so infer. Cf. Fossett required at least one surgical wound exploration Mosely v. Mundine, 249 S.W.3d 775, 780 (Tex.App.- that might not have been necessary, sustained a larger scar Dallas 2008, no pet.) (comparative description of nodule from additional surgery and suffered continued pain and and growth of mass after two-year delay in diagnosis discomfort. He asserted that if Dr. Taylor had provided factual basis for conclusion that failure to “appropriately evaluated and treated Fossett in a timely identify nodule led to invasive and aggressive treatment fashion according to the standard of care, she might have claimant underwent). been admitted to the hospital earlier and required only one, if any, surgical wound explorations (sic). She would Dr. Levine’s report failed to articulate a causal connection most likely not have required two surgeries.” (Emphasis between Dr. Taylor’s care of Fossett and the injuries that added.) Again, Dr. Levine’s standard of care did not call allegedly resulted. Dr. Levine’s statements concerning for wound re-evaluation until up to 48 hours from the causation are conclusory, suggest only the possibility of time of Fossett’s post-operative office visit with Dr. causation, and are unsupported by a factual basis within Taylor. Within 48 hours of Fossett’s office visit with Dr. the four corners of the report. Considering the report and Taylor, she was being treated at Baylor Hospital. applicable law, we conclude the report constitutes a Accordingly, Dr. Levine’s report presented no factual factually and legally insufficient basis for the trial court to basis for a conclusion that Dr. Taylor’s alleged negligence determine whether Fossett’s claims have merit. See *578 resulted in surgical procedures, scarring, and pain that Leland, 257 S.W.3d at 206–07. We conclude the trial would not have occurred in the absence of such alleged court abused its discretion in denying Dr. Taylor’s motion negligence. Moreover, Dr. Levine’s report suggested only to dismiss based on an inadequate expert report. that in the absence of the alleged negligence, Fossett [10] might have been admitted to the hospital earlier and Dr. Taylor asserts the trial court abused its discretion required only one, if any, surgical wound exploration. A in failing to award him attorney’s fees and costs. Section description of only a possibility of causation is not 74.351(b) requires that if an expert report has not been sufficient to satisfy requirements concerning the served within the statutorily required period of time, upon necessary content of an expert report. See Wright, 79 the motion of the affected physician or health care S.W.3d at 53. provider, the trial court shall enter an order awarding reasonable attorney’s fees and costs and dismiss the claim Dr. Levine’s report claimed that had Dr. Taylor examined with prejudice. TEX. CIV. PRAC. & REM.CODE ANN. or cultured Fossett’s surgical wound, he might have § 74.351(b); see also, Hernandez v. Ebrom, 289 S.W.3d properly diagnosed MRSA and begun treatment with 316, 318 (Tex.2009) ( “If a timely and sufficient report is appropriate antibiotic therapy, thereby avoiding not served, the trial court must award the provider its subsequent surgeries, pain, and permanent scarring. This attorney’s fees and costs and dismiss the case with attempt to establish causation also suffers from the prejudice.”). Having concluded that the trial court should infirmity that it presents only a possibility of causation. have granted Dr. Taylor’s motion to dismiss as to See id. Dr. Levine’s report presented no factual basis for a Fossett’s claims, under section 74.351(b) of the civil conclusion that had Dr. Taylor examined or cultured practice and remedies code, the trial court erred in Fossett’s surgical wound, properly diagnosed MRSA, and denying Dr. Taylor’s request for reasonable attorney’s begun treatment with appropriate antibiotic therapy, the fees and costs of court. Accordingly, we sustain Dr. subsequent surgical procedures, pain, and permanent Taylor’s assertion of entitlement to his reasonable scarring would have been avoided. attorney’s fees and costs under section 74.351(b).

Dr. Levine’s report omitted any factual explanation of how any act or omission by Dr. Taylor in delaying diagnosis and treatment of Fossett’s condition for no more than 48 hours proximately caused additional Conclusion

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Taylor v. Fossett, 320 S.W.3d 570 (2010)

We reverse the trial court’s order denying Dr. Taylor’s of a final order dismissing Fossett’s claims against Dr. motion to dismiss. We remand this case to the trial court Taylor with prejudice. for the limited purposes of determining and awarding Dr. Taylor reasonable attorney’s fees and costs and for entry

Footnotes 1 Dr. Levine expressly incorporated the opinions he expressed in his original expert report in his supplemental expert report. On appeal, Fossett contends that “taken together,” Dr. Levine’s original and supplemental reports comply with the statutory requirements of section 74.351. Reports may be considered together in determining whether a claimant provided a report meeting the statutory requirements. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(i); see also, Packard v. Guerra, 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (“If a plaintiff can rely on more than one report to satisfy the standard of care, breach, and causation, we see no violation of section 74.351(i) just because a plaintiff attempted to cure an insufficient report with supplemental reports and refiled expert reports some of which initially were found to be insufficient.”). We disagree with Fossett’s argument on appeal that Dr. Taylor is precluded from raising objections to Dr. Levine’s initial report because Dr. Taylor did not seek relief from this Court at the time of the trial court’s order regarding that report. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(9) (Vernon 2008) (no appeal may be taken from trial court’s order granting extension under section 74.351(c)); see also, Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007) (in cases where report that implicated health care provider’s conduct was served and trial court granted extension under section 74.351(c), appellate courts are without jurisdiction to reach merits of motion to dismiss). 2 Dr. Levine’s original report contains numerous purported breaches of the standard of care by Dr. Taylor. Here, the analysis is dedicated to Dr. Levine’s opinions concerning alleged breaches of the standard of care that he asserts caused injury or damage.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)

351 S.W.3d 398 Court of Appeals of Texas, OPINION El Paso. GUADALUPE RIVERA, Justice. TENET HOSPITALS LIMITED, A Texas Limited Partnership, d/b/a Sierra Medical Center, Jaclyn Tenet Hospitals Limited, d/b/a/ Sierra Medical Center, Brown, R.N., Tammy Prophet, R.N., Kayla Chavez, Jaclyn Brown, R.N., Tammy Prophet, R.N., Kayla R.N., Gloria Tomasino, R.N.C. and Dee Dee Shaw, Chavez, R.N., Gloria Tomasino, R.N.C., and Dee Dee R.N., Appellants, Shaw, R.N., Appellants, appeal the trial court’s denial of v. its motion to dismiss Dalia De La Riva’s health care Dalia DE LA RIVA, Individually and as Parent and liability case. In two issues on appeal, Appellants contend Next Friend of Daniella De La Riva, A Minor, that the expert reports submitted by De La Riva were Appellee. inadequate and fatally deficient to maintain their case.1 For the following reasons, we reverse. No. 08–10–00271–CV. | June 29, 2011.

Synopsis Background: Patient, individually and as daughter’s BACKGROUND mother, filed health care liability action against hospital, obstetrician, nurses, and others alleging that daughter On January 21, 2007, Dalia De La Riva went to Sierra suffered hypoxic ischemic brain injury as result of Medical Center, exhibiting signs of labor. However, when inadequate care during birth. The 34th District Court, El her obstetrician, Dr. Julio Novoa, determined that she was Paso County, William E. Moody, J., denied defendants’ not in labor, De La Riva was discharged. Three days later, motion to dismiss, and they appealed. on January 24, 2007, at 1:19 a.m., De La Riva returned to Sierra Medical Center, having contractions two to three minutes apart. She was admitted, and soon, it was discovered that the fetal heart rate was non-reassuring, Holdings: The Court of Appeals, Guadalupe Rivera, J., which was indicative of lack of oxygen. *401 That non- held that: reassuring heart rate lasted approximately two minutes. [1] Consequently, at 1:25 a.m., Nurse Jaclyn Brown, the pediatric neurologist’s expert report was insufficient to labor and deliver nurse assigned to De La Riva, called Dr. establish causation, and Novoa. In response, Dr. Novoa ordered that De La Riva [2] take Pitocin, a labor induction agent. board certified obstetrician and gynecologist was not qualified to provide expert opinion regarding standard of At 2:27 a.m., another non-reassuring deceleration in the care and causation. heart rate occurred, and five minutes later, it occurred again. Thus, at 2:35 a.m., Nurse Brown called Dr. Novoa Reversed and remanded. again. However, Dr. Novoa did not go to the hospital at that time.

Attorneys and Law Firms At 3:35 a.m., the fetal monitor showed another non- reassuring fetal heart rate, and at 4:25 a.m., Nurse Brown *400 Yvonne K. Puig, Fulbright & Jaworski L.L.P., noted minimal variability and a drop in the fetal heart Austin, TX, for Appellants. rate. At 4:31 a.m., the fetal heart rate had an abnormal baseline with a significant deceleration. By this time, both T.O. Gilstrap, Jr., El Paso, TX, for Appellee. Nurse Brown and Nurse Tammy Prophet were involved in interpreting the fetal heart rate. At 4:34 a.m., Nurse Before CHEW, C.J., McCLURE, and RIVERA, JJ. Brown documented moderate variability with accelerations. However, at 4:51 a.m., there was a pattern of marked variability. As such, Nurse Brown contacted Dr. Novoa again at 5:03 a.m. Dr. Novoa ordered an epideral but did not go to the hospital. De La Riva,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)

however, refused the epideral, despite having signed After timely serving experts report from Kathryn Snider, vaginal and c-section consent forms two hours earlier. a labor and delivery nurse, Dr. Michael Kreitzer, a board certified obstetrician and gynecologist, Brigitte Grissom, When other decelerations occurred at 5:18 a.m., 5:22 a neonatal nurse, and Dr. Daniel Adler, a board certified a.m., and 5:26 a.m., Nurse Brown, at 5:52 a.m., again pediatric neurologist, Appellants objected to the reports called Dr. Novoa. At this point, Dr. Novoa decided to go and moved to dismiss the case. Specifically, they argued to the hospital and arrived at Sierra Medical at 6:30 a.m. that Dr. Adler was not qualified to opine on the standard Approximately fifteen minutes later, Dr. Novoa ruptured of care or breach as to Appellants, nor was Dr. Kreitzer the fetal membrane to induce labor, even though the fetus qualified to opine on the standard of care, breach, or was in a floating position and such procedure could cause causation as to Appellants. In addition, Appellants umbilical cord complications and oxygen deprivation. asserted that neither nurse was qualified to opine on Despite noting the meconium stained amniotic fluid, Dr. causation, and that even if all the experts were qualified, Novoa agreed to allow De La Riva to continue to labor their reports were inadequate as none addressed causation naturally. However, at 7:02 a.m., Dr. Novoa noted that the as to Appellants. fetal heart rate was bradycardic, that is, it was slowing down, and when resuscitative measures were In response, De La Riva claimed that Dr. Adler and Nurse unsuccessful, he ordered an emergency c-section. Nurse Snider were “highly qualified” and that their reports Brown, Nurse Kayla Chavez, and Nurse Gloria Tomasino adequately met the statutory expert report requirements. accompanied Dr. Novoa and De La Riva to the operating De La Riva also attached a seven-page summary of the room. opinions of Nurse Snider and Dr. Adler, arguing that the combination of those two reports were adequate. At that The surgical scrub technicians, however, did not arrive in time, De La Riva did not respond to Appellants’ the operating room until three minutes after De La Riva’s arguments regarding the lack of qualifications of Dr. arrival. The operating room did not appear to be prepared Kreitzer, Nurse Grissom, or Nurse Snider. Subsequently, as the nurses struggled to locate, open, and prepare the trial court held a hearing on the motion to dismiss on surgical trays and disposable blades. Thus, the c-section May 19, 2010, and after further briefing on the matter, the was delayed approximately seven minutes. But at 7:15 trial court denied the motion. a.m., the c-section was performed, and Daniella was born. Unfortunately, Daniella had no heart rate; thus, Nurse Shaw began resuscitation as a certified registered nurse anesthetist attempted intubation to establish an airway. Soon, Neonatal Nurse Jose Balderrama arrived, and by DISCUSSION 7:24 a.m., Daniella’s heart was beating less than 100 beats per minute. Believed to have suffered from hypoxic Appellants raise two issues on appeal. The first contends ischemic brain injury, Daniella now lives with that the expert reports submitted were deficient, alleging neurological disabilities.2 that Dr. Adler wholly failed to address causation as to Daniella’s injuries and that neither Dr. Kreitzer, Nurse De La Riva later filed a health care liability suit against Grissom, nor Nurse Snider had the knowledge or Appellants and Tenet Healthcare Corporation, Dr. Novoa, experience to offer causation opinions on Daniella’s First Choice OB/GYN Associates, Jose Balderrama, injuries. And Appellants’ second issue asserts that even if Timothy Aquilina, and Jasper Neuse, asserting various we were to find that the expert reports sufficiently allegations based on the care and treatment rendered to addressed causation, they were nonetheless conclusory her *402 daughter.3 As to Nurses Brown and Prophet, De and speculative. De La Riva responds that the reports La Riva claimed that they failed to appropriately monitor constituted a good faith effort and that a fair reading of all the fetus, recognize and document signs of distress, the reports more than meets the statutory requirements. communicate with Dr. Novoa, and implement the chain of Finding merit in Issue One, we do not address the second. command. Concerning Nurses Chavez and Tomasino, De La Riva alleged that they failed to properly prepare, equip, and staff the operating room. And as to Nurse Shaw, De La Riva asserted that she failed to follow Standard of Review neonatal resuscitation guidelines upon receiving the infant at delivery. The allegations against Sierra Medical were A trial court’s decision to deny a motion to dismiss under based on vicarious liability for the conduct of its nursing Section 74.351 is reviewed for an abuse of discretion. See staff. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Tenet © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Tenet Hospitals Ltd. v. De La Riva, 351 S.W.3d 398 (2011)

Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533 conclusions to the facts. Bowie Mem’l Hosp. v. Wright, 79 (Tex.App.-El Paso 2009, pet. denied). An abuse of S.W.3d 48, 52 (Tex.2002). discretion only occurs when the trial court acted in an unreasonable or arbitrary manner, without reference to However, a plaintiff need not present evidence in the any guiding rules or principles. Walker v. Gutierrez, 111 report as if it were actually litigating the merits. Palacios, S.W.3d 56, 62 (Tex.2003); Boada, 304 S.W.3d at 533. A 46 S.W.3d at 879. The report can be informal, that is, the trial court acts arbitrarily and unreasonably *403 if it information contained in the report does not have to meet could have reached only one decision, but instead reached the same requirements as the evidence offered in a a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 summary judgment proceeding or at trial. Id. (Tex.App.-Texarkana 2003, no pet.); Boada, 304 S.W.3d at 533. To that end, a trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007), citing In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003); Boada, 304 Dr. Adler S.W.3d at 533. [3] [4] Appellants first argue that Dr. Adler’s report was insufficient to establish causation as the report did not address how each named defendant’s conduct caused the injury. “An expert report must provide a fair summary of Applicable Law the causal relationship between the failure of a health care provider to meet the standards of care and the injury, [1] If a plaintiff timely files an expert report and the harm, or damages claimed.” Estorque v. Schafer, 302 defendant moves to dismiss because of the report’s S.W.3d 19, 27 (Tex.App.-Fort Worth 2009, no pet.); see inadequacy, a trial court must grant the motion “only if it also Wright, 79 S.W.3d at 53. It cannot be conclusory. appears to the court, after hearing, that the report does not Wright, 79 S.W.3d at 53; Estorque, 302 S.W.3d at 27. represent an objective good faith effort to comply with the Rather, it must explain the basis of the expert’s statements definition of an expert report in Subsection (r)(6).” TEX. regarding causation and link his conclusions to the facts. CIV. PRAC. & REM.CODE ANN. § 74.351(l ) (West Wright, 79 S.W.3d at 53; Estorque, 302 S.W.3d at 27–28. 2011). The definition of an expert report requires that the A causal relationship is established by proof that the report contain a fair summary of the expert’s opinions as negligent act or omission was a substantial factor in of the date of the report regarding applicable standards of bringing about the harm and that absent said act or care, the manner in which the care rendered by the omission, the harm would not have occurred. *404 physician or health care provider failed to meet the Costello v. Christus Santa Rosa Health Care Corp., 141 standards, and the causal relationship between that failure S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.). and the injury, harm, or damages claimed. TEX. CIV. Thus, merely providing some insight into the plaintiff’s PRAC. & REM.CODE ANN. § 74.351(r)(6) (West 2011). claims does not adequately address causation. Wright, 79 As the statute focuses on what the report discusses, the S.W.3d at 53; Estorque, 302 S.W.3d at 28. Accordingly, only information relevant to the inquiry is within the four causation cannot be inferred; it must be clearly stated. corners of the document. Palacios, 46 S.W.3d at 878. Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El Paso 2008, no pet.). Indeed, we may not fill in gaps in a [2] In setting out the expert’s opinions on each of the report by drawing inferences or guessing what the expert required elements, the report must provide enough meant or intended. Austin Heart, P.A. v. Webb, 228 information to fulfill two purposes if it is to constitute a S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). good faith effort. Id. at 879. First, the report must inform [5] the defendant of the specific conduct the plaintiff has Moreover, when a plaintiff sues more than one called into question. Id. And second, the report must defendant, the expert report must set forth the standard of provide a basis for the trial court to conclude that the care applicable to each defendant and explain the causal claims have merit. Id. Thus, if a report does not meet relationship between each defendant’s individual acts and these purposes and omits any of the statutory the injury. See TEX. CIV. PRAC. & REM.CODE ANN. § requirements, it does not constitute a good faith effort. Id. 74.351(a), (r)(6) (a claimant must provide each defendant Nor does a report that merely states the expert’s with an expert report that sets forth the manner in which conclusions about the standard of care, breach, and the care rendered failed to meet the standards of care and causation fulfill these purposes. Id. Rather, the expert the causal relationship between that failure and the must explain the basis of his statements to link his injuries claimed); Doades v. Syed, 94 S.W.3d 664, 671– 72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v.

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Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th the operating room, Dr. Novoa, Nurse Shaw or Dist.] 2001, no pet.). An expert report may not assert that Balderrama, or someone else entirely. As the report fails multiple defendants are all negligent for failing to meet to state who caused the injuries, we find it deficient.4 See the standard of care without providing an explanation of Austin Heart, 228 S.W.3d at 282–83 (finding expert how each defendant breached the standard of care and report deficient that was “silent as to whether a single how that breach caused or contributed to the cause of physician, multiple physicians, or all physicians injury. Taylor v. Christus Spohn Health Sys. Corp., 169 mentioned in the report failed to meet the standard of care S.W.3d 241, 244 (Tex.App.-Corpus Christi 2004, no pet.). and caused injury to [the patient]”); Taylor, 169 S.W.3d at 245–46 (finding expert report deficient that failed “to Here, Dr. Adler’s report notes that he reviewed the state what each defendant should have done in order to medical records, and then the report sets out the factual meet the standard of care, what each defendant failed to recitations of what occurred on the day of Daniella’s do, and how such failure led to [the patient’s] death”). birth. In this recitation, Dr. Adler makes no mention of any of the nurses named as defendants, or what they were Nevertheless, De La Riva asserts that when Dr. Alder’s doing, what they did, how they participated in monitoring report is read in conjunction with the reports provided by De La Riva, or how they aided in Daniella’s delivery. The the two nurses, causation is found. It is true that the expert report does, however, mention Dr. Novoa, noting that report requirement may be satisfied by utilizing more than “Dr. Novoa arrived at the hospital at 6:30 a.m.,” and that one expert report, and thus, we may read those reports “[h]e ruptured the membranes.” The report next lists the together to supply missing elements. See TEX. CIV. “clinical impression” as hypoxic ischemic PRAC. & REM.CODE ANN. § 74.351(i) (West 2011). encephalopathy, motor and language delay, and mixed However, only a physician may render opinions regarding low tone-spastic quadriparesis. The report then concludes causation. See TEX. CIV. PRAC. & REM.CODE ANN. § with his “formulation,” which states as follows: 74.351(r)(5)(C); see also Davis v. Webb, 246 S.W.3d 768, 771 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Daniella De La Riva is a girl with significant and Nurses cannot.5 See HealthSouth Corp. v. Searcy, 228 substantial neurological disabilities. She was delivered S.W.3d 907, 909 (Tex.App.-Dallas 2007, no pet.) (stating catastrophically ill at birth with a cardiac arrest. These “it is clear [nurse] could not testify regarding causation”). neurological disabilities are the result of a hypoxic ischemic brain injury that occurred in the aftermath of a Noting that law, De La Riva maintains that when the cardiac arrest, which was present immediately after factual recitations supplied by the reports submitted by birth. No other cause is possible. Nurses Grissom and Snider are read in conjunction with Dr. Adler’s report, we can infer who caused Daniella’s ... injuries by failing to provide an “earlier delivery” or “prompt resuscitation.” However, Dr. Adler did not A delivery prior to the onset of the bradycardia noted reference those reports in arriving at his conclusion. on fetal heart monitoring would have prevented all of Moreover, as to the “earlier delivery” allegation, Dr. Daniella’s neurologically problems. An earlier delivery Adler provided no time reference as to how much earlier and prompt resuscitation would have significantly the delivery should have occurred and thus, whose mitigated if not wholly prevented Daniella’s conduct was implicated for not securing that earlier neurologically problems. delivery. Should it have occurred seconds, minutes, or [6] hours before? Should it have occurred when Nurse Brown This is deficient for causation. Looking to the four first noted the non-reassuring heart rate, when Nurse corners of the report, we note that it does not explain, Prophet started monitoring the fetal heart rate, or when De identify, or describe what conduct, act or omissions are La Riva refused Dr. Novoa’s recommendation for the attributable to any of the Appellants, that is, the report earlier c-section and *406 wanted to continue to deliver does not explain the causal relationship between each Daniella naturally? And for those same reasons, whose defendant’s individual acts and the injury caused to conduct was implicated by failing to provide an earlier Daniella. Rather, the report would have us infer which delivery? Was it Nurse Brown for not securing a delivery party was responsible for each cause. But as set out in the upon first noticing the non-reassuring heart rate, was it other expert reports, each of the ten named defendants Nurse Prophet, once she started to interpret the fetal heart *405 had numerous and varying responsibilities as to the beats, or was it Dr. Novoa for acquiescing to De La two patients involved. Based on the way Dr. Adler’s Riva’s request to continue to labor naturally? report is written, there is no way to discern whether he believed that Daniella’s injuries were caused by the acts Furthermore, the record reflects that at least two nurses or omissions of the pre-delivery nurses, those nurses in engaged in resuscitation, Nurses Shaw and Balderrama.

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As such, we cannot determine to whom Dr. Adler was [14th Dist.] 1999, no pet.). Therefore, a medical expert referring with his “prompt resuscitation” allegation. Was from one specialty may be qualified to testify if he has it Nurse Shaw, Nurse Balderrama, or both? We, of course, practical knowledge of what is customarily done by are prohibited from supplying this missing information by practitioners of a different specialty under circumstances inference. See Wright, 79 S.W.3d at 52; Austin Heart, 228 similar to those at issue in the case. Keo v. Vu, 76 S.W.3d S.W.3d at 279; Gray v. CHCA Bayshore L.P., 189 S.W.3d 725, 732 (Tex.App.-Houston [1st Dist.] 2002, pet. 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.). denied). Indeed, if the subject matter is common to and Consequently, because we cannot determine whose equally recognized and developed in all fields of practice, conduct was implicated by Dr. Adler’s causation opinion, any physician familiar *407 with the subject may testify we must conclude that the report is insufficient to as to the standard of care. Id.; Blan, 7 S.W.3d at 745. establish the same. However, the proffered medical expert’s expertise must be evident from the four corners of his report and curriculum vitae. See generally Palacios, 46 S.W.3d at 878; Christus Health Southeast Texas v. Broussard, 267 S.W.3d 531, 536 (Tex.App.-Beaumont 2008, no pet.). Dr. Kreitzer and the Nurses [11] Here, nothing in the four corners of Dr. Kreitzer’s Appellants also assert that none of the remaining reports report indicates that he is qualified to opine on causation filed by De La Riva supply the missing causation. As to as to Daniella’s injuries. Although Dr. Kreitzer, being Dr. Kreitzer, Appellants assert that he is unqualified to board certified as an obstetrician and gynecologist, is opine on the neurological injuries at issue, and as to the qualified to render an opinion as to Dr. Novoa, he is not nurses, Appellants note that by statute, they are prohibited qualified to opine on the standard of care and causation as from rendering any opinion on causation. We have to infant hypoxia, neonatal resuscitation, and ischemic already held above that nurses, by statute, cannot render insult. Those matters appear to be within the realm of opinions on causation; thus, we will not discuss that point pediatric neurology. Certainly, if Dr. Kreitzer had some of error further. Accordingly, we will move on to the experience in practicing pediatric neurology, he would complaint uttered against Dr. Kreitzer. qualify as an expert in this regard, but neither his report [7] nor curriculum vitae demonstrate any recent experience in To qualify as an expert on causation, the medical expert perinatology. Indeed, his last experience in perinatology need not practice in the same specialty as the defendant. was more than twenty years ago, and he last wrote in that Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex.2003). area over twenty-five years ago. Nor do the four corners Rather, the expert simply must be a physician “who is of the report or curriculum vitae demonstrate that Dr. otherwise qualified to render opinions on such causal Kreitzer consulted any pediatric neurologists or recently relationship under the Texas Rules of Evidence.” See read any medical articles or textbooks on pediatric TEX. CIV. PRAC. & REM.CODE ANN. § neurology in arriving at his opinion. To qualify as an 74.351(r)(5)(C). Rule 702 of the Texas Rules of Evidence expert, the statute requires that he be “actively practicing states that “[i]f scientific, technical, or other specialized medicine in rendering medical care services relevant to knowledge will assist the trier of fact to understand the the claim.” TEX. CIV. PRAC. & REM.CODE ANN. § evidence or to determine a fact in issue, a witness 74.401(c)(2). Thus, experts that last practiced in the qualified as an expert by knowledge, skill, experience, relevant field over eleven years ago have been held to be training, or education may testify thereto in the form of an unqualified. See Larson v. Downing, 197 S.W.3d 303, 305 opinion or otherwise.” TEX.R. EVID. 702. (Tex.2006). At most, Dr. Kreitzer, referring almost [8] [9] [10] exclusively to Dr. Novoa’s conduct, was hired to opine on Nevertheless, not every licensed doctor is his conduct, not that of Appellants. His report states, “I automatically qualified to testify on every medical have been hired by you to offer my expert opinions in this question. Broders v. Heise, 924 S.W.2d 148, 152 case regarding the care given by Dr. Julio Novoa, (Tex.1996). Thus, the trial court’s inquiry should not obstetrician/gynecologist.” Thus, we cannot conclude that focus on the specialty of the medical expert. Roberts, 111 Dr. Kreitzer was qualified to render a causation opinion as S.W.3d at 122. Instead, the trial court should determine to Appellants’ conduct. Cf. Roberts, 111 S.W.3d at 122 whether the proffered expert has “knowledge, skill, (pediatrician expert qualified when report demonstrated experience, training, or education” regarding the specific that he “studied the effects of pediatric neurological issue before the court which would qualify the expert to injuries,” had “extensive experience advising parents give an opinion on that particular subject. Broders, 924 about the effects of those injuries” and relied on the S.W.2d at 153–54 (applying Texas Rule of Evidence interpretation of MRIs and CT scans by a pediatric 702); Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston neurologist); Livingston v. Montgomery, 279 S.W.3d 868,

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877 (Tex.App.-Dallas 2009, no pet.) (noting that (Tex.2008); see also Lewis v. Funderburk, 253 S.W.3d obstetrician expert’s report reflected that he had 204, 208 (Tex.2008) (stating that a *408 deficient report “knowledge and expertise to recognize the perinatal may be cured by amending the report or by serving a new progression of hypoxia due to inadequate oxygenation report from a separate expert that cures the deficiencies in through a compromised uteroplacental unit”). the previously filed report). Moreover, the Supreme Court has noted that the trial court is in the best position to decide whether a cure is feasible. See Samlowski v. Wooten, 332 S.W.3d 404, 411–12 (Tex.2011). Thus, based on these decisions, we think it appropriate to Summary remand the case to the trial court for consideration of whether the deficiencies can be cured, and therefore, Accordingly, having found that neither Dr. Kreitzer, nor whether to grant an extension of time.6 See Regent Health the nurses, were qualified to render expert opinions on Care Center of El Paso, L.P. v. Wallace, 271 S.W.3d 434, causation as to Daniella, and that Dr. Alder’s report was 441 (Tex.App.-El Paso 2008). insufficient to establish the same, we hold that the trial court abused its discretion by overruling Appellants’ motion to dismiss. Issue One is sustained.

We must now determine what relief is appropriate. The CONCLUSION Supreme Court recently stated that when an appellate court reverses a trial court’s denial of a motion to dismiss Having sustained Appellants’ first issue, we reverse the a health care liability claim due to omission of any of the trial court’s judgment and remand for proceedings statutory expert report requirements, the appellate court consistent with this opinion. may remand the case to the trial court to consider granting a thirty-day extension to cure the deficiencies in the report. Leland v. Brandal, 257 S.W.3d 204, 207–08

Footnotes 1 Section 74.351 provides that if a health care liability claimant does not serve an expert report within 120 days after his original petition is filed, the trial court must dismiss the claim with prejudice. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a)-(b) (West 2011). 2 “Hypoxia” is the “presence of less than the normal amount of oxygen, as in the air, in the blood, in a tissue, in the lungs, etc.,” and “ischemia” is a “condition in which a part of the body suffers from a lack of blood, usually because of a contraction of the blood vessels.” See Schmidt, J.E., M.D., Attorneys’ Dictionary of Medicine Illustrated, Vol. 3, H–285, I–208–208.1 (Matthew Bender 2010). 3 The case against Timothy Aquilina and Jasper Neuse, both certified registered nurse anesthetists, was later nonsuited.

4 This case is certainly unlike IHS Acquisition No. 131, Inc. v. Crowson, 351 S.W.3d 368, 369–70, 373–74 (Tex.App.-El Paso 2010, no pet.) (not yet reported), which involved one nurse wasting approximately ten minutes trying to determine whether the victim, who was gasping for breath, was a “DNR” patient before the staff began CPR. There, it was clear that the expert was calling into question that one nurse’s actions before the staff began resuscitative efforts. Id. at 373–74. 5 De La Riva points to several cases in her briefs to support her argument that causation may be supplied from other expert reports, but all of those cases concerned reports submitted by more than one physician. See Packard v. Guerra, 252 S.W.3d 511, 514 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Perez v. Salinas, No. 13–08–00192–CV, 2008 WL 4981565, at *1 (Tex.App.-Corpus Christi Nov. 25, 2008, pet. denied) (mem. op., not designated for publication); Comstock v. Clark, No. 09– 07–300–CV, 2007 WL 3101992, at *1 (Tex.App.-Beaumont Oct. 25, 2007, pet. denied) (mem. op., not designated for publication); Hiner v. Gaspard, No. 09–07–240–CV, 2007 WL 2493471, at *1–2 (Tex.App.-Beaumont Sept. 6, 2007, pet. denied) (mem. op., not designated for publication). None of those cases involved whether a non-physician could supply the missing causation from a physician’s report. See id. 6 Appellants do not seem to assert on appeal that the reports served constituted no reports at all but merely assert that the reports are inadequate and insufficient. Thus, we do not address the “deficient versus no report at all” debate in our opinion here. See, e.g., Simmons v. Texoma Med. Ctr., 329 S.W.3d 163, 181 (Tex.App.-El Paso 2010, no pet.) (discussing the deficient versus no report debate and holding that expert report by a person unrelated to the health care field constituted no report under the health

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care liability statute).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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timely and treat her mother’s urinary tract infection, leading eventually to her mother’s death. 2014 WL 1691362

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND In May 2013, Flores served the Home with the report and SIGNING OF OPINIONS. curriculum vitae of James E. Moulsdale, M.D., F.A.C.S. 2 MEMORANDUM OPINION The Home timely objected to the report. After Flores Court of Appeals of Texas, responded, the trial court heard the Home’s objections in Amarillo. September 2013. The trial court found the report deficient, and granted a 30–day extension to address the W.B.M. MANAGEMENT COMPANY d/b/a identified deficiencies. Vivians Nursing Home, Appellant v. The amended report was filed in late October 2013. The Mary FLORES, Appellee. Home again filed objections and moved to dismiss Flores’ claims pursuant to section 74.351(b) of the Civil Practice No. 07–14–00008–CV. | April 25, 2014. & Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (West 2013). The trial court heard On Appeal from the 108th District Court, Potter County, argument at a hearing in December 2013, overruled the Texas, Trial Court No. 101179–E, Honorable Douglas objections to the amended report and denied the Home’s Woodburn, Presiding. motion to dismiss. The Home has brought this interlocutory appeal. Attorneys and Law Firms

Arlene C. Matthews, W.C. Bratcher, for W.B.M. Management Company. Analysis Lorren L. Lucero, for Mary Flores. Through one issue, the Home challenges the sufficiency Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. of Moulsdale’s amended expert report, contending the report was “impermissibly speculative and conclusory” in its attempt to describe the “causal relationship between the alleged breach of the standard of care by [the Home] and the death of Dionisia Dominguez Gomez.” The MEMORANDUM OPINION Home’s issue also contends the amended report inadequately described the applicable standard of care and JAMES T. CAMPBELL, Justice. its alleged breach.

*1 This is an interlocutory appeal in a health care liability We review a trial court’s decision on a motion to dismiss suit.1 Appellant W.B.M. Management Company D/B/A a health care liability claim for abuse of discretion. Am. Vivians Nursing Home (“the Home”) appeals the trial Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 court’s order overruling its objections to an expert’s S.W.3d 873, 875 (Tex.2001); Gray v. CHCA Bayshore report and denying its motion to dismiss the suit. We will L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] reverse the trial court’s order and remand the cause to the 2006, no pet.). A trial court abuses its discretion if it acts trial court for dismissal. in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.2010). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Background Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion Appellee Mary Flores filed suit against the Home after the merely because it decides a discretionary matter death of her mother Dionisia Dominguez Gomez, alleging differently than an appellate court would in a similar the Home was negligent in its care and treatment of her circumstance. Harris Cnty. Hosp. Dist. v. Garrett, 232 mother. Flores’ amended pleadings alleged in particular S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no the Home’s employees negligently failed to diagnose pet.). However, an incorrect construction of the law or a

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misapplication of the law to undisputed facts is an abuse In Moulsdale’s October 2013 report, he stated: of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding) (“A trial court has no I have been asked to review the care rendered to the ‘discretion’ in determining what the law is or applying the above-captioned individual in January, 2011. She was, law to the facts”); see Perry Homes v. Cull, 258 S.W.3d at that time, a resident of Vivians Nursing Home. 580, 598 n. 102 (Tex.2008) (quoting Walker ). Historically, the patient had had a CVA in the remote past, leaving her extremely debilitated and unable to *2 A health care liability claimant must timely provide care for herself, necessitating nursing home placement. each defendant health care provider with an expert report. I reviewed the records from Vivian’s Nursing Home for See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351; the period of August, 2010 through January, 2011. On Gray, 189 S.W.3d at 858. The expert report must provide January 10, 2011, the patient was found to have a fair summary of the expert’s opinions as of the date of increasing mental confusion and a probable urinary the report regarding the applicable standards of care, the tract infection. She was subsequently taken by manner in which the care rendered by the health care ambulance to Baptist St. Anthony Hospital in Amarillo, provider failed to meet the standards, and the causal Texas, where she was found to have a severe urinary relationship between that failure and the injury, harm, or tract infection and probable urosepsis. She was treated damages claimed. TEX. CIV. PRAC. & REM.CODE aggressively and appeared to recover but was later sent ANN. § 74.351(r)(6). to hospice care and expired there.

If a defendant files a motion challenging the adequacy of *3 The standard of care applicable to this type of the claimant’s expert report, the trial court shall grant the patient is careful monitoring, especially since she was motion to dismiss only if it appears to the court, after a unable to communicate any problems she might be hearing, that the report does not represent an objective experiencing. Careful monitoring would include taking good faith effort to comply with the definition of an her vital signs (i.e. blood pressure, pulse rate, body expert report. TEX. CIV. PRAC. & REM.CODE ANN. § temperature, and respiratory rate) at a minimum of 74.351(l). Making that inquiry, the court considers only once per day in order to detect any changes in her the information contained within the four corners of the condition. Especially in a debilitated patient, it is report. Palacios, 46 S.W.3d at 878. Although the claimant essential to monitor vital signs in order to detect need not marshal all her proof in the report, the report changes in the patient’s condition, such as urinary tract must include the expert’s opinion on each of the elements infection, since the patient is not able to alert the staff identified in the statute. Palacios, 46 S.W.3d at 878–79; on his/her own. Gray, 189 S.W.3d at 859. In reviewing the nursing home records, I found notes To constitute a good faith effort, in setting out the stating that Ms. Gomez’s vital signs should be taken expert’s opinions on the standard of care, the breach of only once per week. The nursing home records further the standard and the causative relationship between the indicate that Ms. Gomez’s vital signs were, in fact, only breach and the injury, harm or damages claimed, the taken once per week. Had her vital signs been taken report must provide enough information to fulfill two more frequently, at a minimum of once per day, it is purposes. Palacios, 46 S.W.3d at 879. First, the report much more likely that this condition would have been must inform the defendant of the specific conduct the found earlier and might have been treated in the claimant has called into question. Id. Second, the report nursing home without the necessity of hospitalization. must provide a basis for the trial court to conclude that the More likely than not, the vital signs would have shown claim has merit. Id. A report that merely states the an increase in body temperature, an increased heart expert’s conclusions does not fulfill these two purposes. rate, an increased respiratory rate, a decrease in blood Id. “Rather, the expert must explain the basis of his pressure, or any combination of the above, indicating a statements to link his conclusions to the facts.” Bowie, 79 change in the patient’s medical condition which S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, required further investigation. Because of the fact that 890 (Tex.1999)). But a claimant need not present her urinary infection was not discovered in a timely evidence in the report as if she were actually litigating the fashion, she required hospitalization and treatment in merits. Palacios, 46 S.W.3d at 879. Furthermore, the an intensive care unit. Because this is a life threatening report may be informal in that the information in the illness, delay in diagnosis is a serious breach of the report need not meet the same requirements as the standard of care. evidence offered in a summary-judgment proceeding or I believe that this claim does have merit because of the trial. Id. delay in the diagnosis of the urinary tract infection. In my training and experience as a urologist, it is more

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likely than not that an undiagnosed urinary tract faith effort toward compliance with the statutory infection might develop into urosepsis, especially in a requirements. debilitated patient who is unable to communicate any symptoms or changes in their medical condition. I Reiterated, an expert report that merely states the expert’s believe that this was the case in the care rendered to conclusions does not provide enough information to fulfill Ms. Gomez. Furthermore, it is documented in the death the purposes of the report. Bowie, 79 S.W.3d at 52 (citing certificate that the cause of death was sepsis secondary Palacios, 46 S.W.3d at 879). The report must explain the to urinary tract infection.3 basis of the expert’s statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52. Otherwise, the report The Home’s objections asserted that the amended report neither informs the defendant of the specific conduct the failed to adequately address the standard of care claimant calls into question nor provides a basis for the applicable to the Home and how the standard of care was trial court to conclude the claim has merit. Id. allegedly breached by the Home or its employees. The Home also asserted the amended report failed to address A case Flores cites is helpful to demonstrate the the causal relationship between the alleged breach and the inadequacies of Moulsdale’s report. Mosely v. Mundine, injury, harm or damages claimed by Flores, and asserted 249 S.W.3d 775 (Tex.App.-Dallas 2008, no pet.), dealt the amended report contained only global and conclusory with a claim a physician failed to detect an early stage of statements concerning the causal connection. cancer. The physician moved to dismiss the claim, asserting the expert report expressed only conclusory Standard of care is defined by what an ordinarily prudent statements as to the causative relationship between the health care provider or physician would have done under failure to detect and the harm to the patient. Id. at 780–81. the same or similar circumstances. Palacios, 46 S.W.3d at The expert report there, as relevant to causation, stated: 880; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 222 (Tex.App.-Houston [1st Dist.] 2003, pet. In the case of Mrs. Mundine, Dr. Mosley [sic] failed to denied). Whether a defendant breached a duty to a patient identify a 1cm nodule on the chest x-ray during the ER cannot be determined absent specific information about visit in 5/2004. Approximately 21 months later this what the defendant should have done differently. nodule had developed into a 6cm mass extending into Palacios, 46 S.W.3d at 880. the lung tissue with undetermined metastasis. Mrs. Mundine has a poor prognosis given the extent of the *4 According to Moulsdale’s report, the applicable tumor growth and required lung resection, standard of care for treatment of a debilitated patient like chemotherapy [,] and radiation. Had this cancer been Ms. Gomez required that the Home monitor her carefully, detected in 2004[,] the likelihood of survival for Mrs. taking her vital signs, defined as blood pressure, pulse Mundine would have been significantly greater with a rate, body temperature and respiratory rate, at least once much less invasive treatment protocol. Dr. Mosley [sic] per day to detect changes in her condition. Addressing the breached the standard of care by failing to detect the Home’s breach of the standard of care, Moulsdale’s report early stage of the cancer in May 2004. states that his review of the nursing home records reveals notes that Ms. Gomez’s vital signs were to be taken only *5 * * * once per week and records further indicating that her vital signs were indeed taken once per week. .... Dr. Mosely failed to identify the early cancer nodule in Mrs. Mundine in 2004. This failure resulted in Moulsdale further explains that because the vital signs delayed diagnosis of lung cancer, required invasive and were not taken daily, Ms. Gomez’s urinary tract infection aggressive treatment and in all medically probability went undetected long enough to develop into sepsis, a significant reduction in the life expectancy of Mrs. life-threatening condition requiring hospitalization. He Mundine. states “[m]ore likely than not, the vital signs would have 249 S.W.3d at 780. shown an increase in body temperature, an increased heart rate, an increased respiratory rate, a decrease in blood The appeals court affirmed the trial court’s denial of the pressure, or any combination of the above, indicating a physician’s motion. It held the trial court could have change in the patient’s medical condition which required concluded the report “established a causal relationship” further investigation.” between the physician’s departure from the standard of care and the patient’s injury. In so concluding, the court Our discussion will focus on causation because we readily found the expert’s report linked the physician’s failure to conclude that in its discussion of that element, identify the one-centimeter nodule in 2004 to the patient’s Moulsdale’s amended report does not constitute a good

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injury from the developed six-centimeter mass some 21 next four days, her condition deteriorated and she was months later. Id. at 781. transferred to another facility where she died a few days later. The expert report addressed what it described as The report in Mosely gave the trial court a factual basis to breaches of the standard of care by a physician during her understand the change in the patient’s condition between four-day hospital stay. Reversing the trial court’s denial the breach of the standard, occurring on a known occasion of challenges to the expert report, the appellate court held on which the patient had a one-centimeter nodule, and the the report was conclusory as to causation. The court later condition when the nodule had become a six- summarized the expert report’s discussion of causation as centimeter mass. 249 S.W.3d at 780. By contrast with that follows: report found adequate as to causation, Moulsdale’s report contains the facts that on January 10, 2011, Ms. Gomez, a [Expert’s] report explains that the standard of care debilitated patient, “was found to have increasing mental required [the physician] to examine and assess [the confusion and a probable urinary tract infection,” and was patient] on a daily basis, and that daily chest x-rays subsequently taken by ambulance to the hospital, where should have been performed. In addition, the report she was diagnosed with a severe urinary tract infection states that if [the physician] had examined [the and probable urosepsis. The report speaks in conclusory patient’s] lungs, then “more likely than not” she would fashion of a “delay in diagnosis,” but contains no facts on have found that [the patient’s] pneumonia and which one may base a conclusion that there occurred a congestive heart failure had worsened, and those delay in diagnosing her infection or that any such delay conditions “could have been effectively treated more was attributable to a failure of the Home to check her vital likely than not.” The report also concludes that if [the signs daily. The report’s statement that “more likely than physician] had performed “proper assessment and not, the vital signs would have shown an increase in body treatment” on January 26, 27, or 28, “then more likely temperature, an increased heart rate, an increased than not, [the patient] could have been successfully respiratory rate, a decrease in blood pressure, or any treated and would not have died when she did.” combination of the above, indicating a change in the [Expert] further concludes in the report that patient’s medical condition which required further [physician’s] negligence proximately caused [patient’s] investigation”4 is not factual, but merely a more detailed death, and if [physician] had not been negligent, statement of Moulsdale’s opinion. The report contains no [patient] “would not have died when she did.” factual statement describing when, relative to January 10, the Home’s employees last checked Ms. Gomez’s vital 259 S.W.3d at 312. The court found the expert’s signs. Nor does it contain statements of what any of Ms. statements conclusory because they were not linked to the Gomez’s vital signs were at any point in time, before, facts and did not explain how the physician’s alleged during or after her diagnosis, or how any of her vital signs negligence caused the patient’s death. Id. at 313 (citing, had changed from any point in time to another. inter alia, Gonzales v. Graves, No. 07–03–00268–CV, 2004 Tex.App. LEXIS 2403, 2004 WL 510898 With regard to her hospital care, Moulsdale’s report adds (Tex.App.-Amarillo Mar. 16, 2004, no pet.) (mem.op.)). only the facts that Ms. Gomez was treated aggressively and appeared to recover but later died under hospice care. Moulsdale’s report contains even fewer facts than the The report concludes with the statement that, according to report in Craig. 259 S.W.3d at 312. That report at least her death certificate, the cause of Ms. Gomez’s death was described Mrs. Dearbonne’s condition on her admission “sepsis secondary to urinary tract infection.” But the to the hospital, giving the trial court some means to report contains nothing to link that fact with his understand the factual consequences of a failure to order conclusion the Home’s failure to check her vital signs daily x-rays. See Craig, 259 S.W.3d at 313–14 (Gaultney, daily in the days before her hospitalization led to her J., dissenting). As noted, Moulsdale’s report gives no septic condition or her death some two weeks later. And facts regarding Ms. Gomez’s vital signs on any day, we cannot engage in inferences to supply information not providing no basis for evaluation of the effects of a failure present within the four corners of the report. See Bowie, to check her vital signs daily. See also Foster v. 79 S.W.3d at 53. Richardson, 303 S.W.3d 833, 842 (Tex.App.-Fort Worth 2009, no pet.) (holding expert report “does not explain *6 Moulsdale’s report may also be compared with the beyond mere conjecture” how condition of patient’s ankle expert report considered in Craig v. Dearbonne, 259 worsened from June to July so that physician’s failure to S.W.3d 308 (Tex.App.-Beaumont 2008, no pet.). Mrs. give correct diagnosis in June caused the requirement of Dearbonne was admitted to a hospital on January 25 with further treatment in July). admitting diagnoses that included “respiratory distress/shortness of breath” and pneumonia. Over the

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Moulsdale’s report expresses his opinion that the Home’s without reference to guiding rules or principles and did failure to take Ms. Gomez’s vital signs at least daily not, therefore, misapply the law to the undisputed facts of caused a failure to find and timely treat her urinary tract this case, or otherwise abuse its discretion, I respectfully infection. It further expresses his opinion that because the dissent. infection was left untreated, it developed into sepsis, a life-threatening condition, ultimately leading to her death. As the majority opinion correctly sets out, this is an But the report does not explain the basis of Moulsdale’s interlocutory appeal in a health care liability suit, wherein statements to link his conclusions to the facts, Bowie, 79 Appellant, W.B.M. Management Company, d/b/a Vivians S.W.3d at 52, with the result that it also does not provide Nursing Home, seeks to overturn the decision of the trial a basis for the trial court to conclude the claim has merit. court to deny Appellant’s motion to dismiss the claims of Id. Ultimately, it states only Moulsdale’s opinions on Appellee, Mary Flores, pursuant to section 74.351(l). causation. Accordingly, the report does not set forth a TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l) “good faith effort” to provide a fair summary of the (West 2012). The majority concludes the trial court erred causation element as described in the statute. When it because the report of Dr. James E. Moulsdale does not overruled the Home’s objections to the report’s causation constitute an objective good faith effort to describe a element discussion and denied its motion to dismiss, the causal relationship between Appellant’s failure to follow trial court misapplied the “good faith effort” standard. an appropriate standard of medical care and Appellee’s Our conclusion the report is inadequate in its discussion claimed damages. Because the majority accurately sets of causation makes it unnecessary for us to consider the forth the law applicable to a case such as this, I will not adequacy of its discussion of the standard of care and restate the principles of law governing an appellate breach. court’s analysis of the sufficiency of an expert report as statutorily defined. Id. at § 74.351(r)(6).

Reduced to its essence, Appellee claims Appellant’s employees failed to provide medical care within an Conclusion applicable standard of care, and their failure to do so resulted in the death of her mother, Dionisia Dominguez *7 We sustain the Home’s sole issue. We reverse the trial Gomez. In support of her claim, Appellee provided the court’s order and remand the cause to the trial court for expert report of Dr. James E. Moulsdale,1 which opines, in the limited purposes of determining the Home’s part, as follows: reasonably incurred attorney’s fees and costs and entry of an order dismissing with prejudice Flores’ claims against the Home. TEX. CIV. PRAC. & REM.CODE ANN. § In reviewing the nursing home records, I found notes 74.351(b). stating that Ms. Gomez’s vital signs should be taken only once per week. The nursing home records further indicate that Ms. Gomez’s vital signs were, in fact, only taken once per week. Had her vital signs been taken PIRTLE, J., dissenting. more frequently, at a minimum of once per day, it is much more likely that this condition would have been found earlier and might have been treated in the nursing home without the necessity of hospitalization. More likely than not, the vital signs would have shown DISSENTING OPINION an increase in body temperature, an increased heart rate, an increased respiratory rate, a decrease in blood PATRICK A. PIRTLE, Justice. pressure, or any combination of the above, indicating a *7 Respectfully disagreeing with my colleagues change in the patient’s medical condition which concerning the application of the law to the undisputed required further investigation. Because of the fact that facts of this case, I dissent. By its opinion, the majority her urinary infection was not discovered in a timely finds the trial court misapplied the law concerning the fashion, she required hospitalization and treatment in application of the “objective good faith” standard to the an intensive care unit. Because this is a life threatening evaluation of an expert report under section 74.351(l) of illness, delay in diagnosis is a serious breach of the the Texas Civil Practices and Remedies Code, resulting in standard of care. a finding of abuse of discretion and the concomitant judgment to reverse and remand. Because I find the trial *8 I believe that this claim does have merit because court did not act in an arbitrary or unreasonable manner of the delay in the diagnosis of the urinary tract

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infection. In my training and experience as a between the failure to closely monitor any change in her urologist, it is more likely than not that an condition and harm suffered as a result of her declining undiagnosed urinary tract infection might develop medical health. into urosepsis, especially in a debilitated patient who is unable to communicate any symptoms or changes *9 Drawing insight from Mosely v. Mundine, 249 S.W.3d in their medical condition. I believe that this was the 775 (Tex.App.-Dallas 2008, no pet.), the majority opines case in the care rendered to Ms. Gomez. that the expert report in that case was found to be Furthermore, it is documented in the death certificate sufficient because it gave the trial court a “factual basis to that the cause of death was sepsis secondary to understand the change in the patient’s condition”—in that urinary tract infection. case a change from a 1 cm nodule to a 6 cm mass over a In the context of a claim based on a failure to timely 21 month period. Here, Dr. Moulsdale’s report is really no diagnose Ms. Gomez’s medical condition, the report (1) different in that it places the emphasis on the differential provides a summary of the expert’s opinions regarding diagnosis of Ms. Gomez’s condition from day to day (as applicable standards of care, (2) relates the manner in opposed to from week to week). The majority criticizes which the care rendered failed to meet those standards, Dr. Moulsdale’s report for failing to contain a statement and (3) opines as to the causal connection between that concerning Ms. Gomez’s vital signs at any specific point failure and the injury, harm, or damages claimed. As in time. In reaching this conclusion the majority such, the report meets the statutory purpose of an expert completely overlooks the fact that it doesn’t matter what report because it (1) informs Appellant of the specific her vital signs were at any particular moment because the conduct Appellee has called into question and (2) medical significance is the change, not the difference. Dr. provides a basis for the trial court to conclude the claim Moulsdale’s report indicates that it was the daily change has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. that would have, in all probability, alerted the Appellants Palacios, 46 S.W.3d 873, 879 (Tex.2001). to the imminent need for more aggressive treatment of her failing condition. Appellant contends, and the majority agrees, the expert report was “impermissibly speculative and conclusory” in In another misinterpretation of Appellee’s cause of action its attempt to describe, within the four corners of the and the purpose of an expert report, the majority opines report, the “causal relationship between the alleged breach that the “report contains nothing to link [Dr. Moulsdale’s ... and the death of [Ms. Gomez].” The majority then opinion that Ms. Gomez’s death was ‘sepsis secondary to analyzes relevant case law to reach the conclusion that urinary tract infection’] with his conclusion the this particular report does not “link” Dr. Moulsdale’s [Appellant’s] failure to check her vital signs daily in the conclusions to the facts of this case. days before her hospitalization led to her septic condition or her death some two weeks later.” (Emphasis in the So, just what are the “facts” of this case? From the four original.) Appellee does not contend that the failure to corners of the report, we know that Ms. Gomez was timely diagnose led to Ms. Gomez’s septic condition. “extremely debilitated,” that she was “unable to care for Rather, Appellee contends her worsening septic condition herself,” that Appellant was aware of the fact that she had (which would have been reflected in her daily vital signs a “probable urinary tract infection,” and that in light of and could have been treated earlier but for the delay in that knowledge, Appellant chose to take her vital signs diagnosing Ms. Gomez’s infection) led to injury, harm, or only once per week. We also know the standard of care other damages because it was not timely diagnosed and applicable to this type of patient called for “careful treated. Simply put, Dr. Moulsdale’s report establishes monitoring,” which would specifically include taking her that Ms. Gomez was harmed by Appellant’s breach of the vital signs “a minimum of once per day,” and that the appropriate standard of care. purpose of that frequency of monitoring was “to detect any changes in her condition.” We also know this Contrary to the conclusion reached by the majority, I find monitoring was “especially” called for in a debilitated the facts of this case clearly provide a basis upon which patient, like Ms. Gomez, because the patient was not the trial judge could reasonably have concluded that there otherwise able to alert the staff on her own. Finally, we was merit to the Appellee’s claim. Accordingly, I would know that within reasonable medical probability, “had her affirm the decision of the trial court. vital signs been taken more frequently ... it was much more likely that [her] condition would have been found earlier” and she might not have required hospitalization. The fact that more careful monitoring would have alerted Parallel Citations the medical care providers to provide earlier, more aggressive treatment, establishes a causal relationship Med & Med GD (CCH) P 304,923

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Footnotes 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (West 2012).

2 Dr. Moulsdale is a board-certified urologist who has practiced in the field for over 34 years. He holds accreditation in a number of urological fields, and has published several articles. The Home does not challenge Moulsdale’s qualifications on appeal. 3 The date of Ms. Gomez’s death is not stated in Moulsdale’s report, but Flores’ brief states she died on January 24, 2011.

4 The statement is one of those added by the amended report.

1 Dr. Moulsdale is a board-certified urologist who has practiced in the field of urology for over 34 years. Dr. Moulsdale’s qualifications as an expert in this field are not challenged.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Walker v. Packer, 827 S.W.2d 833 (1992)

PHILLIPS, Chief Justice. 827 S.W.2d 833 This original mandamus action involves two pre-trial Supreme Court of Texas. discovery requests sought by *836 relators, plaintiffs in a Charles F. WALKER and Mary Jeanette Walker et medical malpractice lawsuit. The first discovery dispute al., Relators, involves documents which the plaintiffs seek from one of v. the defendants, while the second involves documents The Honorable Anne PACKER, Judge, which they seek from a nonparty for impeachment Respondent. purposes. As to the first matter, we hold that relators have not presented a sufficient record to demonstrate that the No. C–9403. | Feb. 19, 1992. | Rehearing Overruled trial court clearly abused its discretion in failing to grant May 6, 1992. | Dissenting Opinion by Justice them all requested relief. As to the second, we hold that Gammage May 7, 1992. relators have an adequate remedy by appeal. Thus, mandamus is inappropriate, and we deny the writ. Parents of child born with brain damage, who had brought action against obstetrician, hospital where child was born, and nurse attending at delivery, brought petition for writ of mandamus arguing that the trial court abused its discretion by refusing to order hospital to produce The St. Paul and Aetna Records documents from its insurer’s files and by ordering that Catherine Johanna Walker sustained brain damage at birth portions of other responsive documents be stricken. The in January 1983. In January 1985, her parents, Charles F. Supreme Court, Phillips, C.J., held that: (1) plaintiffs had and Mary Jeanette Walker, sued Dr. Paul Crider, the not presented sufficient record to demonstrate that trial obstetrician, St. Paul Hospital, where Catherine was born, court clearly abused its discretion in failing to grant and Iris Jean White, a nurse attending at the delivery. plaintiffs requested discovery from one of defendants, and (2) plaintiffs had adequate remedy by way of appeal as to In August 1987, the Walkers served on St. Paul their third documents they sought from nonparty for impeachment request for production of documents pursuant to purposes. Tex.R.Civ.P. 167. One request asked for: Petition denied. Any and all writings, notes, Gonzalez, J., concurred with opinion. documents, letters, etc., concerning, mentioning, alluding to, or making Doggett, J., dissented with opinion in which Mauzy, J., reference to (either directly or joined. indirectly), the tape recorded statement given by Nurse White to Gammage, J., dissented with opinion. an Aetna adjuster, including but not limited to any notes or entries in any Aetna adjuster’s file, any Attorneys and Law Firms attorney’s file, or any file or writing in possession of any *835 Les Weisbrod and Michael S. Box, Dallas, for employee, representative or agent relators. of St. Paul Hospital. This request is in reference to the tape recorded Philipa Remington, Stephen W. Johnson, James A. statement which you have been Williams, Kevin J. Keith, Martha L. Strother, Gary W. unable to locate, but which was Sibley, Dallas and Delmar L. Cain, Austin, for previously requested.... respondent. St. Paul responded as follows:

In an effort to respond to this request, this Defendant again checked with all appropriate OPINION personnel and files at St. Paul

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Hospital and the law firm of Bailey supplied after irrelevant portions of such documents are and Williams. No such statement or stricken.” taped recording was found. For the third time the Aetna Casualty and After unsuccessfully seeking relief in the court of appeals, Surety Company was asked to the Walkers moved for leave to file a petition for writ of check its records and files and a mandamus with this court, arguing that the trial court partially transcribed statement was clearly abused its discretion by refusing to order St. Paul located, a copy of which is to produce the documents from Aetna’s files and by attached. No taped recording was ordering that portions of the other responsive documents located. be stricken. The Walkers contend that the order was a clear abuse of discretion because St. Paul 1) never Nearly two years later, the Walkers filed a motion to objected to the Walkers’ request for production, 2) had a compel under Tex.R.Civ.P. 215, asserting that St. Paul superior right to the Walkers to compel production of the failed to respond completely to the request.1 The Walkers documents in Aetna’s possession, and 3) never asked that complained that “St. Paul Hospital did not even respond any parts of the documents be excised. to what was requested in the request for production—that is, writings, notes, and notations in the adjuster’s file or The record before us does not include the statement of attorney’s file mentioning, alluding to, or making facts from the evidentiary hearing on the Walkers’ motion reference to the tape recorded statement of Nurse White.” to compel production. Without it, we cannot determine on At about the same time, the Walkers also served on Aetna what basis the trial judge and the special master reached Casualty and Surety Company, St. Paul’s insurer, an their conclusions. Since we cannot assess whether or not “Amended Notice of Intention to Take Deposition Upon the trial court’s order was correct, we obviously cannot Written Questions—Duces Tecum,” seeking, among other take the additional step of determining that the court’s things, the same documents. Aetna moved to quash the order, if incorrect, constituted a clear abuse of discretion. notice. [1] [2] [3] As the parties seeking relief, the Walkers had the The trial judge appointed a special master to review the burden of providing this Court with a sufficient record to Walkers’ motion to compel and Aetna’s motion to quash. establish their right to mandamus relief. Since an After an evidentiary hearing on September 5, 1989, the evidentiary hearing was held, the Walkers had the burden master prepared findings, which formed the basis for two of providing us not only a petition and affidavit, see extensive orders signed by the trial court on September Tex.R.App.P. 121(a)(2)(C) and (F), but also a statement 20, 1989. In the first order, the court found that the of facts from the hearing. See, e.g., Cameron County v. Walkers were “entitled to all documentation sought in Hinojosa, 760 S.W.2d 742, 744 (Tex.App.—Corpus [the request] from the files of Defendant St. Paul or its Christi 1988, orig. proceeding); Greenstein, Logan & Co. attorney of record, but not from the files of Aetna v. Burgess Mktg. Inc., 744 S.W.2d 170, 177 (Tex.App.— Insurance Company, except as they may appear in the Waco 1987, writ denied); see also Western Casualty & files of St. Paul or the attorneys of record of St. Paul.” Surety Co. v. Spears, 730 S.W.2d 821, 822 (Tex.App.— The court also stated that it “has been advised that St. San Antonio 1987, orig. proceeding).3 Having failed to Paul has supplied all documentation that is responsive to meet this burden, the Walkers have not provided us with a [the request], but that additional documentation will be record upon which they can establish their right to made available *837 to the Court for in camera review.” mandamus relief against St. Paul. The court therefore sustained the Walkers’ motion to compel “to the extent that on Friday, September 8, 1989 the Special Master will review in the Chambers of the 134th District Court the relevant portions of the St. Paul The Obstetrics Faculty Records files and their attorney [sic] files, which may be in response to Plaintiff’s request....” The court, however, did [4] The second discovery dispute arises out of the Walkers’ not order St. Paul to produce documents from Aetna’s attempt to secure documentary evidence to impeach one files for in camera inspection.2 of the defendants’ expert witnesses, Dr. Larry Gilstrap, a faculty member in obstetrics at the University of Texas After the master’s September 8 in camera inspection, the Health Science Center at Dallas (“the Center”). Gilstrap court ordered discovery of three additional documents testified at his deposition that expert witness fees earned from the files of St. Paul and its attorneys, which it found by obstetrics faculty members are deposited into a “fund” “relate to the matters sought in discovery and should be in the obstetrics “billing department”; that obstetrics

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faculty members get paid “indirectly” from this fund; that the witness, however, had not yet been put in doubt. the fund is handled by Judy Wagers, a Center employee; Under these circumstances, we held that the documents and that he was unaware of any obstetrics department were not discoverable, and we directed the trial court to policy restricting faculty members from testifying for vacate its order allowing the requested discovery. 452 plaintiffs in medical malpractice cases. S.W.2d at 435. We reasoned that “[t]here is ... a limit beyond which pre-trial discovery should not be allowed.” *838 Thereafter, the Walkers noticed Wagers’ deposition, Id. at 437. requesting that she provide all documents regarding (1) the operation of the above-mentioned “fund” from 1985 The present case is distinguishable. Here, the Walkers to 1988; and (2) limitations placed upon obstetrics faculty presented to the trial court evidence of a specific members relating to their testimony in medical circumstance—the Center’s policy restricting the malpractice cases. The Center, on behalf of Wagers, faculty’s freedom to testify for plaintiffs—raising the moved to quash the notice, arguing that the request for possibility that Dr. Gilstrap is biased. Thus, the Walkers documents was “vague and overly broad” and that are not engaged in global discovery of the type production would be “costly and burdensome.” disapproved in Russell; rather, they narrowly seek information regarding the potential bias suggested by the Two months later, in an unrelated lawsuit, the Walkers’ witness’ own deposition testimony and that of his counsel deposed Dr. Alvin L. Brekken, another obstetrics professional colleague. faculty member at the Center. Dr. Brekken testified that the obstetrics department’s official policy, distributed in Our rules of civil procedure, and the federal rules upon writing to all faculty members, requires a doctor to obtain which they are based, mandate a flexible approach to authorization from other faculty members before discovery. A party may seek any information which testifying for any plaintiff in a medical malpractice case. “appears reasonably calculated to lead to the *839 Based on this testimony, the Walkers sought a court order discovery of admissible evidence.” Tex.R.Civ.P. to depose Wagers and obtain the requested documents. 166b(2)(a). Evidence of bias of a witness is relevant and admissible. See Tex.R.Civ.Evid. 613(b).5 After reviewing the Gilstrap and Brekken depositions and pleadings of counsel, the trial court ordered the Center to The trial court erred in failing to apply the foregoing rules produce the documents for in camera review by the to determine whether the documents were discoverable. special master. Subsequently, in her September 20, 1989 Instead, the trial court simply read Russell as an absolute order, the trial judge denied the discovery, stating in part: bar to discovery, even though the circumstances here are quite distinguishable. In so doing, the trial court [S]uch requested discovery is misapplied the Russell holding. We expressly disapprove improper pursuant to the Rulings of such a mechanical approach to discovery rulings.6 the Supreme Court of Texas in Russell v. Young [452 S.W.2d 434 Having concluded that the trial court erred in denying the (Tex.1970) ], as the potential discovery based solely on Russell, we now must witness is not a party to the suit and determine whether the appropriate remedy lies by writ of the records do not relate to the mandamus. “Mandamus issues only to correct a clear subject matter of the suit, but are abuse of discretion or the violation of a duty imposed by sought solely for the purpose of law when there is no other adequate remedy by law.” impeachment, according to the Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 Plaintiffs’ pleadings. (Tex.1985).7 We therefore examine whether the trial court’s error in the present case constituted a clear abuse Although noting that some of the documents “would be of discretion and, if so, whether there is an adequate relevant to this cause of action,” the court nevertheless remedy by appeal. denied discovery because “all such documents are controlled by the Russell decision.”

In Russell, a party sought wholesale discovery of financial 1. Clear Abuse of Discretion records of a potential medical expert witness who was not Traditionally, the writ of mandamus issued only to a party to the lawsuit.4 The documents requested did not compel the performance of a ministerial act or duty. See relate directly to the subject matter of the suit, but were Wortham v. Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, sought solely in an attempt to impeach the potential 1150 (1939); Arberry v. Beavers, 6 Tex. 457 (1851); witness by showing bias or prejudice. The credibility of Helen A. Cassidy, The Instant Freeze–Dried Guide to

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Mandamus Procedure in Texas Courts, 31 S.Tex.L.Rev. (trial court abused discretion by failing to apply proper 509, 510 (1990); Comment, The Expanding Use of legal standard to motion to disqualify counsel); Eanes ISD Mandamus to Review Texas District Court Discovery v. Logue, 712 S.W.2d 741, 742 (Tex.1986) (trial court Orders: An Immediate Appeal Is Available, 32 Sw.L.J. abused discretion by erroneously finding constitutional 1283, 1288 (1979). violation). [7] [8] Since the 1950’s, however, this Court has used the writ to In determining whether the trial court abused its correct a “clear abuse of discretion” committed by the discretion in the present case, we treat the trial court’s trial court. See, e.g., Joachim v. Chambers, 815 S.W.2d erroneous denial of the requested discovery on the sole 234, 237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d basis of Russell as a legal conclusion to be reviewed with 569, 574 (Tex.1984); West v. Solito, 563 S.W.2d 240, 244 limited deference to the trial court. This is consistent with (Tex.1978); Womack v. Berry, 156 Tex. 44, 50, 291 our approach in previous mandamus proceedings arising S.W.2d 677, 682 (1956). See generally, David W. out of the trial court’s interpretation of legal rules. Cf. Holman & Byron C. Keeling, Entering the Thicket? Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 Mandamus Review of Texas District Court Witness (Tex.1990); Barnes v. Whittigton, 751 S.W.2d 493, 495– Disclosure Orders, 23 St. Mary’s L.J. 365, 390 (1991); 96 (Tex.1988); Terry v. Lawrence, 700 S.W.2d 912, 913– Cassidy, 31 S.Tex.L.Rev. at 510; Note, The Use of 14 (Tex.1985). Under this analysis, the trial court’s Mandamus to Review Discovery Orders in Texas: An erroneous interpretation of the law constitutes a clear Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981); abuse of discretion. Comment, 32 Sw.L.J. at 1290.

A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a 2. Adequate Remedy by Appeal clear and prejudicial error of law.” Johnson v. Fourth In order to determine whether the writ should issue, Court of Appeals, 700 S.W.2d at 917. This standard, however, we must further decide whether the Walkers however, has different applications in different have an adequate remedy by appeal. circumstances. [9] Mandamus will not issue where there is “a clear and [5] With respect to resolution of factual issues or matters adequate remedy at law, such as a normal appeal.” State committed to the trial court’s discretion, for example, the v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus reviewing court may not substitute its judgment for that of is intended to be an extraordinary remedy, available only the trial court. See Flores v. Fourth Court of Appeals, 777 in limited circumstances. The writ will issue “only in S.W.2d 38, 41–42 (Tex.1989) (holding that determination situations involving manifest and urgent necessity and not *840 of discoverability under Tex.R.Civ.P. 166b(3)(d) for grievances that may be addressed by other remedies.” was within discretion of trial court); Johnson, 700 S.W.2d Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 at 918 (holding that trial court was within discretion in (Tex.1989) (quoting James Sales, Original Jurisdiction of granting a new trial “in the interest of justice and the Supreme Court and the Courts of Civil Appeals of fairness”). The relator must establish that the trial court Texas in Appellate Procedure in Texas, § 1.4[1] [b] at 47 could reasonably have reached only one decision. Id. at (2d ed. 1979)). The requirement that persons seeking 917. Even if the reviewing court would have decided the mandamus relief establish the lack of an adequate issue differently, it cannot disturb the trial court’s appellate remedy is a “fundamental tenet” of mandamus decision unless it is shown to be arbitrary and practice. Holloway, 767 S.W.2d at 684. unreasonable. Johnson, 700 S.W.2d at 918. [10] Our requirement that mandamus will not issue where [6] On the other hand, review of a trial court’s there is an adequate remedy by appeal is well-settled.8 On determination of the legal principles controlling its ruling a few occasions, however, we have not focused *841 on is much less deferential. A trial court has no “discretion” this requirement when applying mandamus review of in determining what the law is or applying the law to the discovery orders. For example, in Barker v. Dunham, 551 facts. Thus, a clear failure by the trial court to analyze or S.W.2d 41 (Tex.1977), the trial court refused to compel apply the law correctly will constitute an abuse of defendant’s representative to answer certain deposition discretion, and may result in appellate reversal by questions, and the plaintiff applied to this Court for a writ extraordinary writ. See Joachim v. Chambers, 815 S.W.2d of mandamus. We concluded that the trial court had 234, 240 (Tex.1991) (trial court abused discretion by abused its discretion, and ordered that the writ misinterpreting Code of Judicial Conduct); NCNB Texas conditionally issue. We never discussed the well-settled National Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989) requirement of inadequate remedy by appeal.

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mandamus proceedings involving other types of pre-trial A few months later, in Allen v. Humphreys, 559 S.W.2d orders, even those involving discovery. See, e.g., 798 (Tex.1977), the Court again conditionally issued a TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d writ of mandamus to correct a discovery abuse without 913, 919 (Tex.1991); Hooks v. Fourth Court of Appeals, considering whether the relator had an adequate remedy 808 S.W.2d 56, 59–60 (Tex.1991); Bell Helicopter by appeal. The real party in interest in Allen raised this Textron, Inc., v. Walker, 787 S.W.2d 954, 955 argument, but the Court avoided the issue by citing (Tex.1990); Stringer v. Eleventh Court of Appeals, 720 Barker. Id. at 801. S.W.2d 801, 801–02 (Tex.1986). In Hooks, for example, we reaffirmed that the “cost or delay of having to go Commentators quickly criticized the Barker and Allen through trial and the appellate process does not make the opinions. See James Sales, Pre–Trial Discovery in Texas, remedy at law inadequate.” 808 S.W.2d at 60. 31 Sw.L.J. 1017, 1033 (1977); Comment, The Expanding [11] Use of Mandamus to Review Texas District Court The requirement that mandamus issue only where Discovery Orders: An Immediate Appeal Is Available, 32 there is no adequate remedy by appeal is sound, and we Sw.L.J. 1283, 1300 (1979) (In most cases “forcing a party reaffirm it today. No mandamus case has ever expressly to await the completion of the trial in order to seek rejected this requirement, or offered any explanation as to appellate review will not endanger his substantial why mandamus review of discovery orders should be rights....”); Note, Mandamus May Issue To Compel A exempt from this “fundamental tenet” of mandamus District Judge to Order Discovery, 9 Tex.Tech L.Rev. practice. Without this limitation, appellate courts would 782 (1978) (mandamus should not be a substitute for “embroil themselves unnecessarily in incidental pre-trial appeal). rulings of the trial courts” and mandamus “would soon cease to be an extraordinary writ.” Braden v. Downey, In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the 811 S.W.2d 922, 928 (Tex.1991). We thus hold that a Court again used the extraordinary writ of mandamus to party seeking review of a discovery order by mandamus compel discovery which had been denied by the trial must demonstrate that the remedy offered by an ordinary court. Unlike in Barker and Allen, however, the Court in appeal is inadequate. We disapprove of Barker, Allen, and Jampole addressed whether relator had an adequate any other authorities to the extent they might be read as appellate remedy. The underlying suit in Jampole was a abolishing or relaxing this rule. products liability action, and the disputed discovery [12] materials included alternate design and assembly We further hold that an appellate remedy is not documents. The Court held that relator did not have an inadequate merely because it may involve more expense adequate remedy by appeal because denial of this or delay than obtaining an extraordinary writ. As we discovery effectively prevented relator from proving the observed in Iley v. Hughes, the “delay in getting questions material allegations of his lawsuit. 673 S.W.2d at 576. decided through the appellate process ... will not justify Remedy by appeal in a discovery mandamus is not intervention by appellate courts through the extraordinary adequate where a party is required “to try his lawsuit, writ of mandamus. Interference is justified only when debilitated by the denial of proper discovery, only to have parties stand to lose their substantial rights.” 158 Tex. at that lawsuit rendered a certain nullity on appeal....” Id. 368, 311 S.W.2d at 652.

Although the Court in Jampole recognized the need to On some occasions, this Court has used, or at least address whether relator had an adequate remedy by mentioned, the more lenient standard first articulated in appeal, it expressly refused to overrule Barker and Allen. Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 Id. Perhaps because of this, we have on several occasions (Tex.1926), that the remedy by appeal must be “equally since Jampole used mandamus to correct discovery errors convenient, beneficial, and effective as mandamus.” See, without considering whether the relator had an adequate e.g., Jampole v. Touchy, 673 S.W.2d 569, 576 appellate remedy. See Loftin v. Martin, 776 S.W.2d 145 (Tex.1984); Crane v. Tunks, 160 Tex. 182, 190, 328 (Tex.1989); Barnes v. Whittington, 751 S.W.2d 493 S.W.2d 434, 439 (Tex.1959). This standard, literally (Tex.1988); Lunsford v. Morris, 746 S.W.2d 471 applied, would justify mandamus review whenever an (Tex.1988); Turbodyne Corp. v. Heard, 720 S.W.2d 802 appeal would arguably involve more cost or delay than (Tex.1986); Terry v. Lawrence, 700 S.W.2d 912 mandamus. This is unworkable, both for individual cases (Tex.1985); Lindsay v. O’Neill, 689 S.W.2d 400 and for the system as a whole. Mandamus disrupts the (Tex.1985). trial proceedings, forcing the parties to address in an appellate court issues that otherwise might have been On many other occasions, however, we have still required resolved as discovery progressed and the evidence was a showing of inadequate *842 remedy by appeal in developed at trial. Moreover, the delays and expense of

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mandamus proceedings may be substantial. This (Tex.1974). As we noted in Crane: “After the [privileged proceeding, for example, involving rulings on collateral documents] had been inspected, examined and reproduced discovery matters, has delayed the trial on the merits for ... a holding that the court had erroneously issued the over two years. The impact on the appellate courts must order would be of small comfort to relators in protecting also be considered. We stated in Braden that “[t]he their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may judicial system cannot afford immediate review of every also occur where a discovery order compels the discovery sanction.” 811 S.W.2d 922, 928. It follows that production of patently irrelevant or duplicative the system cannot afford immediate review of every documents, such that it clearly constitutes harassment or discovery order in general.9 We therefore disapprove of imposes a burden on the producing party far out of Cleveland, Crane, Jampole and any other authorities to proportion to any benefit that may obtain to the requesting the extent that they imply that a remedy by appeal is party. See, e.g., Sears, Roebuck & Co. v. Ramirez, 824 inadequate merely because it might involve more delay or S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992) (demand for tax cost than mandamus. returns); General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983) (demand for information about all Justice Doggett’s dissent argues that because discovery vehicles for all years). errors often constitute harmless errors under [14] [15] Tex.R.App.P. 81(b)(1), parties denied mandamus relief Second, an appeal will not be an adequate remedy will be deprived of any remedy since the *843 error will where the party’s ability to present a viable claim or not provide a basis for appellate reversal. This is nothing defense at trial is vitiated or severely compromised by the more than a thinly disguised attack on the harmless error trial court’s discovery error. It is not enough to show rule. Avoiding interlocutory appellate review of errors merely the delay, inconvenience or expense of an appeal. that, in the final analysis, will prove to be harmless, is one Rather, the relator must establish the effective denial of a of the principal reasons that mandamus should be reasonable opportunity to develop the merits of his or her restricted. case, so that the trial would be a waste of judicial resources. We recently held that when a trial court Justice Doggett’s dissent also suggests that we will be imposes discovery sanctions which have the effect of unable to develop a coherent body of discovery law precluding a decision on the merits of a party’s claims— without unrestricted mandamus review. We do not think, such as by striking pleadings, dismissing an action, or however, that losing parties will be reluctant to raise rendering default judgment—a party’s remedy by perceived discovery errors on appeal, nor will an eventual appeal is inadequate, unless the sanctions are appellate court be foreclosed from writing on discovery imposed simultaneously with the rendition of a final, issues, even when the error may be harmless. See, e.g., appealable judgment. TransAmerican Natural Gas Corp. Lovelace v. Sabine Consolidated, Inc., 733 S.W.2d 648, v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly, a 652–53 (Tex.App.—Houston [14th Dist.] 1987, writ denial of discovery going to the heart of a party’s case denied). may render the appellate remedy inadequate. [16] [17] Nor are we impressed with the dissenters’ claim that strict Finally, the remedy by appeal may be inadequate adherence to traditional mandamus standards will signal where the trial court disallows discovery and the missing an end to effective interlocutory review for some parties discovery cannot be made part of the appellate record, or or classes of litigants. There are many situations where a the trial court after proper request refuses to make it part party will not have an adequate appellate remedy from a of the record, and the reviewing court is unable to clearly erroneous ruling, and appellate courts will evaluate the effect of the trial court’s error *844 on the continue to issue the extraordinary writ. In the discovery record before it. See Tom L. Scott, Inc. v. McIlhany, 798 context alone, at least three come to mind. S.W.2d 556, 558 (Tex.1990) (“[M]andamus is the only remedy because the protective order shields the witnesses [13] First, a party will not have an adequate remedy by from deposition and thereby prevents the evidence from appeal when the appellate court would not be able to cure being part of the record.”); see generally Jampole, 673 the trial court’s discovery error. This occurs when the trial S.W.2d at 576 (“Because the evidence exempted from court erroneously orders the disclosure of privileged discovery would not appear in the record, the appellate information which will materially affect the rights of the courts would find it impossible to determine whether aggrieved party, such as documents covered by the denying the discovery was harmful.”). If the procedures attorney-client privilege, West v. Solito, 563 S.W.2d 240 of Tex.R.Civ.P. 166b(4) are followed, this situation (Tex.1978), or trade secrets without adequate protections should only rarely arise. If and when it does, however, the to maintain the confidentiality of the information. court must carefully consider all relevant circumstances, Automatic Drilling Machines v. Miller, 515 S.W.2d 256 such as the claims and defenses asserted, the type of

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discovery sought, what it is intended to prove, and the restricting faculty members from testifying for plaintiffs presence or lack of other discovery, to determine whether in medical malpractice cases. This policy was sought for mandamus is appropriate.10 use in impeaching defendant’s expert witness, Dr. Gilstrap. In refusing discovery, the trial court concluded [18] In the present case, the Walkers seek documents from *845 that the relevance of this material was limited to the Center to impeach one defendant’s expert witness. impeachment. As such, the requested documents fell This information is not privileged, burdensome or squarely within the prohibition of Russell. harassing, nor does it vitiate or severely compromise the Walkers’ ability to present a viable claim. In fact, as we Despite the court’s mischaracterization of Russell, the have already noted, the trial court may ultimately issues and type of evidence sought here and in Russell are conclude that it is not admissible or even discoverable. identical. Just as in Russell, the records sought in the Finally, although the materials are not before us, they instant case did not relate directly to the subject matter of were considered below, and we know of no reason why the suit. The only difference between the present case and they would not be available on appeal. Therefore, under Russell is the identity of the party seeking the our traditional standards of mandamus review, as information. In Russell, a defendant sought evidence to measured by the factors we mention above, the Walkers impeach the plaintiffs’ expert; here, the plaintiff sought have an adequate remedy by appeal and mandamus is evidence to impeach a defendant’s expert. Surely, we inappropriate. cannot have a rule that changes in application depending on whether the relator is a plaintiff or a defendant in the For the above reasons, we conclude that the Walkers have trial court. not established their right to relief by mandamus on either discovery matter. Therefore, we deny the Walkers’ In my opinion, the court strains to distinguish Russell. petition for writ of mandamus. The court suggests that the trial judge made a mistake in her ruling by failing to read Russell in conjunction with the rules of civil procedure and evidence. However, when we adopted the new Texas Rules of Civil Evidence, there was no discussion whatsoever that, by their adoption, we GONZALEZ, J., concurs and files an opinion. intended to reject the settled rule that information sought solely for impeachment of a non-party is not discoverable. DOGGETT, J., dissents and files an opinion, joined by Russell, 452 S.W.2d at 435; see also W.W. Rodgers & MAUZY, J. Sons Produce Co. v. Johnson, 673 S.W.2d 291, 294–95 GAMMAGE, J., dissents and files an opinion. (Tex.App.—Dallas 1984, orig. proceeding). Furthermore, the scope of discovery has not changed in the twenty GONZALEZ, Justice, concurring. years since Russell has been on the books. When Russell was decided, the scope of discovery was codified in Texas I agree with the court’s disposition of this cause but Rule of Civil Procedure 186a. It provided in pertinent part disagree with the court’s opinion regarding the that: “Obstetrics Faculty Records.” Specifically, I disagree with the court’s attempt to distinguish Russell v. Young, [p]arties may obtain discovery 452 S.W.2d 434 (Tex.1970). Nevertheless, I concur in the regarding any matter which is result. relevant to the subject matter in the pending action whether it relates to Russell holds that wholesale discovery of the private the claim or defense of the party records of a non-party witness is not permitted if the sole seeking discovery or the claim or purpose for discovery is to impeach the credibility of the defense of any other party. non-party.1 452 S.W.2d at 435. The policy considerations of Russell still apply today. By disapproving of Russell as This same text is now codified in Rule 166b(2)(a). “a mechanical approach to discovery rulings,” at 839, the Clearly, impeachment evidence regarding collateral court forces trial courts to get further involved in matters would not relate to the subject matter of the discovery matters. This increases the backlog, delay, and pending action. cost of litigation by creating the need for more hearings. Implicitly, the court concludes that the credibility of a In the instant case, the plaintiffs sought to discover non-party witness alone is a relevant avenue of inquiry documents from the University of Texas Health Science and, thus, is a matter properly open to discovery under Center to confirm the existence of a written policy some new, broader definition of relevancy.

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While I agree that the definition of relevance in Rule 401 I am concerned that as a result of today’s ruling, some of the Texas Rules of Civil Evidence includes matters non-parties will be subjected to harassment and intrusion bearing on credibility, this alone does not explain or into their private lives, and that trial courts will be distinguish Russell. A witness’ credibility has always inundated with hearings on collateral issues far afield been a relevant matter. As the United States Supreme from the merits of the cause of action or defense. The Court has said: “[p]roof of bias is almost always relevant court has attempted to fix something that was not broken. because the jury, as finder of fact and weigher of This reinterpretation of Russell will further tax our credibility, has historically been entitled to assess all overburdened judicial system without appreciably evidence which might bear on the accuracy and truth of a benefiting the litigants or the system. witness’ testimony.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984). Yet in Finally, for the reasons expressed in Joachim v. Russell, we said that a trial court lacked “authority” to Chambers, 815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, order discovery from a non-party solely for purposes of J., dissenting), I agree with the clarification of the impeachment. 452 S.W.2d at 435. We chose to withdraw standards for the issuance of mandamus. all discretion in this particular area of discovery. Russell concedes that impeachment evidence may be relevant and admissible at trial, but holds that it cannot be discovered from a non-party for its own sake prior to trial. 452 DOGGETT, Justice, dissenting. S.W.2d at 436.

The fact that a matter may have some relevance yet not be Them that’s got shall get subject to discovery is hardly a novel concept. The basic Them that’s not shall lose premise of the rules of discovery is to weigh the —God Bless The Child1 legitimate needs of litigation against the other rights and values that would be irreparably harmed by unfettered With a double standard, the majority strikes a devastating discovery. Russell strikes the proper balance by protecting blow at the most direct method of curbing abuses of non-party witnesses from indiscriminate invasions into judicial power. Many judicial excesses far beyond the their private lives where the information sought would not scope of anything alleged in this particular case will appreciably shed light on the issues of the case. henceforth receive only an official nod and wink from the Texas Supreme Court. Furthermore, the decision in Russell was not grounded on whether the credibility of the witness had been placed in Mandamus is the legal tool by which appellate courts can doubt. Instead, the court highlighted the fact that *846 the promptly correct arbitrary and capricious rulings by trial witness had not offered testimony at trial nor was his judges. Today’s opinion announces that this remedy will deposition introduced into evidence at trial. The court be available to support concealment of the truth but not its said: disclosure. Mandamus is officially declared a one-way street in the Texas courts—our judiciary can help to hide Relator has not yet taken the but not to detect. witness stand nor has his deposition been introduced into evidence Despite a determination that a “clear abuse of discretion” because there has not yet been a has occurred in this particular case, at 840, all relief is trial; relator’s records cannot denied. Finding a wrong and denying a remedy echoes the possibly have impeachment value logic of the majority’s recent conclusion that a tax is because there is nothing yet to unconstitutional but must be paid anyway. See impeach and there may never be Carrollton–Farmers Branch Indep. Sch. Dist. v. anything to impeach, depending Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 524 (1992) upon the contents of the testimony, (Edgewood III ) (Doggett, J., dissenting). Rather than if any, which is introduced during correcting the abuse, the court simply gives the Walkers the trial of the lawsuit. the same message it gave Texas taxpayers—wait. Only after a full jury trial based upon incomplete discovery will Russell, 452 S.W.2d at 437. Thus, it is evident that the the judiciary even consider any possibility of relief. court has today reinterpreted Russell with little or nothing to gain in a way that further obscures the proper scope of discovery.

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For those who have previously sought more specific perpetrator. In such situations denial of discovery guidelines for the use of mandamus concerning discovery effectively means denial of all relief. That reality does not orders, the majority responds with not one but two go unrecognized by today’s majority. standards for reviewing trial court action: orders compelling discovery may be immediately corrected; Entities that begin litigation in control of most of the review of denied discovery is postponed indefinitely in a relevant evidence can often defeat their adversaries manner to ensure that no meaningful relief will ever be simply by denying them the power of information: forthcoming. [T]hose with established positions of power are more likely to ... win by preventing their adversaries from producing evidence; they are I. less likely to be in the position of having to extract evidence from What a different path this court now pursues than that so their opponents to make out their recently proclaimed in its unanimous decision that case. Discovery is ... the linchpin of the search for truth, as it 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal makes “a trial less *847 a game of blind man’s bluff Practice & Procedure § 5422, at 674 (1980). With its and more a fair contest with the issues and facts separate and unequal treatment of litigants, the majority disclosed to the fullest practicable extent.” gives yet another edge to the already advantaged. State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting Providing immediate review for orders that start the flow United States v. Proctor & Gamble Co., 356 U.S. 677, of information but refusing to consider those that stop it, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). Similarly the majority once again expresses its preference for ignored are our recent, unanimous writings in Axelson, helping the powerful over the seemingly powerless. Those Inc. v. McIlhany, 798 S.W.2d 550, 553, 555 (Tex.1990, opposing meaningful discovery orig. proceeding) (“[Discovery should provide] the fullest knowledge of the facts and issues prior to trial.... [T]he tend to be institutions rather than ultimate purpose of discovery ... is to seek the truth....”); individuals, and tend to be among and Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559 the more wealthy and powerful (Tex.1990, orig. proceeding) (“The primary policy behind segments of society. A review discovery is to seek truth so that disputes may be decided system that gives priority (that is, by facts that are revealed rather than concealed.”). immediate review) to the Without mandamus review to add meaning to these complaints of privilege holders, but laudatory expressions, they are just hollow words. The which consigns the complaints of new signal is clear—circumvent discovery and conceal parties seeking discovery until after information. final judgment, gives an advantage to those wealthy institutional Today’s opinion reflects the radical change in philosophy litigants. They have the power to which has taken firm hold in this court—discovery is no achieve more favorable results longer a search for truth, it is merely a game of hide and during the pretrial process; their seek. No longer may appellate courts intercede through opponents must wait. mandamus even for the trial court’s complete abuse of discretion in denying access to vital data; under the Elizabeth G. Thornburg, Interlocutory Review of Discovery Orders: An Idea Whose Time Has Come, 44 newly-announced double standard, intervention can, Sw.L.J. 1045, 1082 (1990) (hereinafter Review of however, be accorded for those who persevere in evasion. Discovery Orders ) (footnote omitted).2 In this way the When a local business is defrauded, when a community is *848 majority ensures that the scales of justice—which at exposed to dangerous toxic wastes, when a manufacturer the onset of litigation are often in reality uneven—never achieve balance. ignores reports that a safety design change would reduce user injuries, when a monopoly extorts unfair gain from Until this court included discovery orders within the the public, when discrimination results in job loss, and in scope of mandamus review, very few reported opinions numerous other circumstances, the burden of proving wrongdoing is exceedingly difficult to satisfy without addressed this important subject. Trial judges were obtaining evidence of that wrong from the files of the effectively accorded unlimited discretion with a “resulting

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atmosphere [that] was very hostile to discovery.” Id. at the Texas Bar Journal. Rather, the court has a duty both 1071. As a practical matter, discovery battles, often both to make the rules and to interpret them. complex and time-consuming, were shunned. When the party controlling vital data exercises the power of Our American system of jurisprudence is founded on the withholding it, fighting every important request, the precept that it is of great benefit to have a written body of judicial command “go work it out” often amounts to a case law construing controlling legal principles and denial of meaningful discovery. The mud-wrestling that applying them to particular facts. This approach is frequently ensues in such contests may discourage a trial undeniably desirable in the discovery context: judge from determining who is acting fairly and who started the fight. If mandamus is not available to correct In a system where trial court ill-considered or hasty denials, the hope for ultimate decisions are unreported and have justice in complex litigation is prematurely crushed. The no precedential value, the creation majority’s decision today marks a return to those dark of a body of reported appellate case ages when discovery was regularly denied as the path of law regarding discovery has least resistance and greatest convenience for the judiciary. substantial value. Case law on discovery promotes uniform interpretation of the discovery rules and, in time, decreases the opportunity for individual *849 II. judge’s biases to shape discovery outcomes. Reported decisions By its very nature, discovery involves a search for what is develop clear rules, where rules are largely unknown from someone who may have an possible, and narrow the range of incentive to make that search as long and tortuous as judicial discretion in other areas possible. Efforts to prevent discovery have been limited simply by providing numerous only by the boundless imagination of the top legal talent cases finding that the trial court did in America. Requests are either too broad or too narrow; or did not abuse its discretion. Such records produced are either minimal or in such case law can be particularly helpful voluminous, disorganized form as to make locating in a jurisdiction that has recently relevant information most difficult; vital documents amended its discovery rules. Over vanish in “routine document destruction” programs or are time, the existence of discovery misplaced. Accordingly, our discovery rules have case law may even clarify the rules required continual revision to cope with the newest ways sufficiently so as to decrease the invented by those intent on subverting the process. Each number of disputes in the trial revision of the Texas Rules of Civil Procedure during the court. last decade has included attempted clarification and improvement of discovery procedures. This has produced Review of Discovery Orders at 1080 (footnotes omitted). a body of law that is “complex and rapidly evolving.” Appellate opinions properly applying mandamus produce, David W. Holman & Byron C. Keeling, Entering the then, both more consistency and more accuracy in trial Thicket? Mandamus Review of Texas District Court court decisions. See id. at 1077.3 Witness Disclosure Orders, 23 St. Mary’s L.J. 365, 375 (1991) (hereinafter Mandamus of Disclosure Orders ). The role of this court is particularly important in answering novel or significant questions of discovery law. Given the creativity of those who would thwart discovery, See Mandamus of Disclosure Orders at 376 (“[P]re-trial rules of procedure cannot be drawn to provide clear appellate review of [important discovery] questions could guidance in every situation; judicial interpretation is lend critical guidance to the development of Texas essential. The more complicated the rule, the more discovery practice.”). Rather than avoiding its necessary the construction and the greater the likelihood responsibility, this court should utilize mandamus review for misinterpretation. See id. at 386 (“Erroneous to reduce the abuse of judicial power when “a unique interpretations of these changes ... are likely with the question of discovery” law is presented. David West, absence of prior significant precedent.... [and] could have Note, The Use of Mandamus to Review Discovery Orders a substantial effect on the subsequent course of a in Texas: An Extraordinary Remedy, 1 Rev.Litigation lawsuit.”). This court’s responsibility does not and cannot 325, 327 (1981) (hereinafter The Use of Mandamus ). end when the text of promulgated amendments appears in

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Most trial court mistakes denying discovery result from Mandamus Procedure in Texas Courts, 31 S.Tex.L.Rev. the need to make repeated, quick decisions based upon 509, 512 (1990). As another commentator has aptly limited information. Recognizing this circumstance, trial concluded, judges sometimes actually encourage litigants to raise disputed rulings affecting truly vital matters for appellate only an unusual discovery order examination through mandamus by automatically staying would be dispositive enough to their orders. Refusal of prompt appellate review not only show the harmful error that most denies a party its rights but may also deprive a trial court jurisdictions require for appellate of desired guidance. reversal. Many appellants, therefore, would not even raise the Today’s opinion appropriately recognizes that “this Court discovery points on appeal. will not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of the Review of Discovery Orders at 1056; see also Mandamus state as to require correction.” At 839 n. 7. But under the of Disclosure Orders at 376 n. 40 (observing that, because standard announced, questions of importance concerning of the harmless error rule, many discovery rulings are not judicially-approved concealment of facts will never be pursued on appeal). In denying mandamus today, the considered. The significance to the state’s jurisprudence majority closes and locks the appellate courthouse door to of a ruling should certainly not be controlled by whether any meaningful consideration of numerous significant the order granted or denied discovery. matters.

III. IV.

With mandamus now severely limited, many important Only with the tragic recent change in course by this issues will not be reviewed. See generally Review of court’s majority has such denial of access become Discovery Orders at 1056; The Use of Mandamus at 337 acceptable. Previously both this court and the courts of & n. 94. Abuses of judicial power will go forever appeals had employed their writ power as necessary to uncorrected when the party disallowed discovery, correct the abusive refusal of discovery. Among those realizing the difficulty of proving a case with less than cases providing the foundation for appropriate mandamus full information and the uphill task of maintaining a review is Barker v. Dunham, 551 S.W.2d 41 (Tex.1977, successful appeal, is either forced to settle or forgoes a orig. proceeding), in which the trial court had overruled a costly and extended appeal following defeat on the entire motion to complete an expert witness’s deposition and to case. Nor will improper rulings ever be reviewed where compel production of his work papers. We interceded, one denied discovery, although severely handicapped, stating that: “It is settled that the writ of mandamus may nonetheless prevails at trial. issue in a discovery proceeding to correct a clear abuse of discretion by a trial judge.” Id. at 42. Similarly, in Allen v. Where appeals do occur, remedies will be rare even for Humphreys, 559 S.W.2d 798 (Tex.1977, orig. egregious pretrial rulings. To succeed in this endeavor, proceeding), the trial court refused to order discovery of one must show that tests, surveys and complaints by similarly affected persons. This court found an abuse of discretion and the error complained of amounted granted the writ, despite the argument that the plaintiff to such a denial of the rights of had “an adequate remedy via the normal appellate appellant as *850 was reasonably process.” Id. at 801. It is difficult to perceive, in light of calculated to cause and probably this argument and the court’s subsequent grant of did cause rendition of an improper mandamus relief, how the majority can now claim that judgment in the case, or was such “we [had] not focused” on the requirement of an as probably prevented the appellant inadequate remedy by appeal in Allen and on, admittedly, from making a proper presentation a “few [other] occasions.” At 840–841. of the case to the appellate court. Following these two opinions, this court has not hesitated Tex.R.App.P. 81(b). This standard is universally regarded to consider and correct the wrongful denial of discovery. as a “more difficult hurdle” than abuse of discretion. By issuing mandamus to rectify an erroneous trial court Helen A. Cassidy, The Instant Freeze–Dried Guide to ruling refusing discovery in Jampole v. Touchy, 673

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S.W.2d 569 (Tex.1984, orig. proceeding), this court recognized that appeal is not an adequate remedy: One of the most significant casualties is Jampole v. Touchy, which has formed the centerpiece for discovery [R]equiring a party to try his lawsuit, debilitated by the in litigation over defective products and toxic substances denial of proper discovery, only to have that lawsuit for almost a decade. The majority, in a massive rendered a certain nullity on appeal, falls well short of a understatement, “disapproves” Jampole “to the extent [it remedy by appeal that is “equally convenient, implies] that a remedy by appeal is inadequate merely beneficial, and effective as mandamus.” because it might involve more delay or cost than mandamus.” At 842. Although leaving untouched for now Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190, this court’s prior writing on the proper scope of discovery, 328 S.W.2d 434, 439 (1959) (citation omitted)); see also the majority has in fact overruled that landmark precedent Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 in its entirety. Despite a gross abuse of discretion in (Tex.1926). denying critical discovery in Jampole, the majority’s only correction by mandamus would be to require inclusion of A trial court’s unwillingness to order the production of the disputed materials in *852 the record, to await a accident scene photographs was overturned by mandamus deferred and meaningless appellate review. in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig. proceeding). In Lindsey v. O’Neill, 689 S.W.2d 400, 402 (Tex.1985, orig. proceeding) (per curiam), the court overturned by mandamus an order limiting the scope of a deposition and quashing the accompanying document V. request. A blanket order protecting hospital records was similarly vacated by mandamus in Barnes v. Whittington, Instead of affording the relief that prior rulings demand, 751 S.W.2d 493 (Tex.1988, orig. proceeding). In the majority announces, after considerable mental Lunsford v. Morris, 746 S.W.2d 471 (Tex.1988, orig. gymnastics, that “at least three [discovery situations] proceeding), this court again granted mandamus to come to mind” where mandamus is justified, at 843; then remedy a trial court’s erroneous disallowance *851 of it strangely proceeds to describe six. The first three relevant discovery. See also Loftin v. Martin, 776 S.W.2d instances where remedy by appeal is inadequate stem 145 (Tex.1989, orig. proceeding) (correcting by from a trial court’s wrongful allowance of discovery. mandamus wrongful denial of discovery); Turbodyne First, mandamus will issue if “disclosure of privileged Corp. v. Heard, 720 S.W.2d 802 (Tex.1986, orig. information ... will materially affect the rights of the proceeding) (per curiam) (mandamus directing trial court aggrieved party.” At 843. This requisite is easily fulfilled to rescind order denying discovery of documents from with discovery objections that include an assertion of insurer in subrogation action); Ginsberg v. Fifth Court of privilege, the violation of which necessarily impinges on Appeals, 686 S.W.2d 105 (Tex.1985, orig. proceeding) the objecting party’s rights. (erroneous bar of deposition by court of appeals cured by mandamus).4 Second, mandamus will issue when a trial court orders the disclosure of “trade secrets without adequate protections It is only after fifteen years of repeated judicial reliance to maintain the confidentiality of the information.” At 843 upon Barker and Allen in the issuance of numerous (citing, without discussion, Automatic Drilling Machs., opinions that we learn these precedents of our court are Inc. v. Miller, 515 S.W.2d 256 (Tex.1974, orig. not good law. This is all the more strange in that we had proceeding)). Posing numerous problems, this hastily- explicitly refused to overrule them. When that very drawn exception has no relevance to the instant case and request was urged in Jampole, 673 S.W.2d at 576, our was concocted by the majority without any briefing or answer was unmistakable: “We decline to do so.” But the argument by counsel. One privilege is thereby majority’s new answer is simple: “Line them up against unjustifiably elevated above all others. Moreover, the the wall.” What does it matter that a dozen or more Texas writing implies an absolute protection of trade secrets Supreme Court cases and countless decisions of the courts from discovery when in fact this privilege is most of appeals are to the contrary? They can be disposed of in definitely qualified, as recognized by Automatic Drilling, a mass execution of precedent.5 Today’s firing squad 515 S.W.2d at 259,6 the rule itself, Tex.R.Civ.Evid. 507 announces that it is only answering the command of Jim (trade secrets not protected when nondisclosure conceals Sales and two law students who separately criticized the fraud or works injustice), and even Mr. Sales, whose court during the period 1977–79. At 840–841. It thereby writing purportedly warranted today’s brash action. 7 Nor rationalizes constructing so distorted a standard on the does this exception consider the availability in some cases corpses of so many prior authorities. of the interlocutory appeal mechanism provided in

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Tex.R.Civ.P. 76a(8) to address the adequacy of a obstructionists. Once again the majority provides an protective order. See Eli Lilly & Co. v. Marshall, Order incentive for concealment. Granting Leave to File Petition for Writ of Mandamus (Doggett, J., dissenting), 829 S.W.2d 156 (Tex.1991). The remaining two situations address the wrongful denial of discovery, and constitute a narrow path in the woods The third situation requiring mandamus is an “order [that] compared to the expressway for resisting discovery compels the production of patently irrelevant or constructed in the previous four exceptions. Mandamus is duplicative documents, such that it clearly constitutes possible when harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the the missing discovery cannot be requesting party.” At 843. This “catch-all” exception made part of the appellate record, indeed makes the extraordinary writ of mandamus an or the trial court after proper ordinary one. In almost any complex litigation, the claim request refuses to make it part of of burden is essentially a form objection to discovery. It is the record, and the reviewing court difficult to perceive a dispute in which the party seeking is unable to evaluate the effect of to obstruct the process could not and, after today’s the trial court’s error on the record decision, will not claim harassment or imposition of an before it. undue burden. See, e.g., Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam) At 843–844. The quick fix of including materials in the (granting mandamus to preclude disclosure of corporate appellate record is both ingenious and ingenuous. It has tax returns on the basis of undue burden and unnecessary the immediate “benefit” of excluding a great number of expense, not privilege).8 errors in the discovery area from mandamus review. As the majority in fact recognizes, “this situation should only A fourth exception, based on *853 Transamerican rarely arise.” At 844.9 And if it ever does, the majority Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991, guarantees that no relief will be forthcoming, by directing orig. proceeding), is described when the trial court that the reviewing court imposes “discovery sanctions ... precluding a decision on the merits of a party’s claims ... unless the sanctions are imposed simultaneously with the rendition of a final, carefully consider all relevant circumstances, such as appealable judgment.” At 843 (emphasis deleted). The the claims and defenses asserted, the type of discovery majority falsely suggests that today’s standard creates a sought, what it is intended to prove, and the presence or symmetry with Transamerican. Unlike Transamerican, lack of other discovery, to determine whether which treated the striking of a petition in the same manner mandamus is appropriate. as the entry of a default judgment, this ruling creates a At 844. Within these constraints, there will always be a double standard. Unlike Transamerican, which involved a readily available excuse to deny both discovery and readily-perceptible wrong such as an order of dismissal, a mandamus. determination of whether hidden documents “go to the In most cases the materials can be boxed up, file-stamped, heart of a party’s case,” at 843, involves significant and sent to the appellate court. How this will accomplish uncertainties. anything more than cluttering the judicial chambers is quite another matter. No clue is given as to how to resolve More importantly, Transamerican was issued at a time the obvious difficulties inherent in appellate when the announced policy of this court was to deter determination, without any effective argument and abuses of discretion without regard to whether discovery analysis by counsel, of whether each item would have was granted or denied. A wide spectrum of sanction affected the result. Moreover, this approach improperly orders arising from discovery rulings are immediately requires courts of appeals to act as juries while denying to appealable. See Braden v. Downey, 811 S.W.2d 922 the true fact-finder evidence that may be highly *854 (Tex.1991, orig. proceeding). Superimposing relevant to the proceeding. This distrust of juries—of Transamerican and Braden on today’s double standard ordinary people resolving factual disputes—is sends a clear message to the rare trial court that would increasingly reflected in the majority’s decisions.10 impose significant penalties on those who obstruct discovery with deceit and delay—be careful. There is no The only hope for review of a trial court’s order denying real danger of immediate and genuine appellate discovery is upon proof that a claim has been “vitiated or examination of an order denying discovery, but there is a severely compromised by the trial court’s discovery constant threat of appellate review of an order granting error.” At 843. It must be shown “that the trial would be a discovery or imposing meaningful sanctions on waste of judicial resources,” at 843, and that “a denial of

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discovery [goes] to the heart of a party’s case.” At 843. It bit as real from improper grants of discovery. As a is far from clear whether these encompass one or three practical matter there is probably less danger that a trial different standards. What is clear is that few cases, if any, judge will capriciously ignore properly established will satisfy whatever standard is applied. objections and privileges to accord too much information instead of too little. Nevertheless, I favor the use of The majority offers no example of a case in which a party mandamus to control abuse without regard to how it has ever met such a heavy burden. Apparently an occurs or whom is helped. What I deplore is the applicant for mandamus in this court must confess that, discrimination which the majority officially substitutes for without the discovery sought, the trial court should and even-handedness. Scholars viewing *855 the so-called must direct a contrary verdict. Any semblance of a chance “Walker mandamus standard” should recognize that it is at prevailing prevents a determination that the trial would not a standard but an excuse for ignoring wrongdoing. be a “waste of judicial resources” or that the discovery denied goes “to the heart of a party’s case.” While this After today’s decision, discovery disputes will no longer situation may theoretically arise in the future, it will be be resolved on a level playing field. I believe that most unlikely. Nor is there any explanation of how a party mandamus should be available to correct any trial court can be expected to show such a probability without abuse concerning a subject that is important to the having any of the materials in question. We have jurisprudence of the state and which substantially affects previously recognized the hardship inherent in showing rights of an aggrieved party. If this requisite is satisfied, need for documents when their contents are unknown. relief should be accorded without regard to whether the State v. Lowry, 802 S.W.2d 669, 673 (Tex.1991) (“It is trial court has granted or denied discovery. difficult for the [relators] to make a more particularized showing of need for these documents, the contents of which are unknown to them.”).

Application of today’s font of mandamus law to the VI. Walkers’ situation is most revealing. The majority summarily concludes that the trial court’s misapplication In supporting today’s opinion, Justice Gonzalez insists of the law to deprive them of relevant evidence “does that we must stem what he claims is an alarming increase [not] vitiate or severely compromise the Walkers’ ability in the number of mandamus filings. At 844–846 to present a viable claim.” At 844. Most ironically, (Gonzalez, J., concurring). The view that “the sky is today’s announcement imposes one type of double falling” is best reflected in the gruesome statistics and standard on top of another alleged double standard. The conclusions of his dissenting opinion in Joachim v. Walkers claim they have uncovered a double standard at a Chambers, 815 S.W.2d 234, 241 (Tex.1991). See also taxpayer-financed institution that encourages faculty to Jampole, 673 S.W.2d at 578 (Barrow, J., dissenting); cf. defend those accused of medical malpractice while C.L. Ray & M.R. Yogi McKelvey, The Mandamus discouraging professional advice on behalf of the alleged Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987). victim. It is the merits of this revelation that the majority so eagerly seals away from both the Walkers and the Blaming an ever-increasing caseload for the Texas courts public. on the advent of the discovery mandamus is wholly insupportable. These petitions most often present Fully aware of the impact of expert credibility on the emergency situations requiring expedited review and, outcome of much medical malpractice litigation, the consequently, are frequently viewed as a thorn in the side majority denies the Walkers the very information that of appellate courts. See Review of Discovery Orders at could perhaps demonstrate the bias of a key witness. An 1059 n. 99. But I cannot agree that justice should be official blessing is thus provided for trial court action that denied or delayed solely to accommodate appellate may have a material, adverse effect on their ability to judges. present a viable case. Having now learned that the denial of impeachment evidence is never susceptible to Recent studies have debunked the myth of the mandamus mandamus, it remains to be seen what other critical explosion. The Joachim dissent, to which Justice information will next be similarly viewed as unimportant Gonzalez once again points with pride today, is based to this majority. upon an analysis that fails to segregate filings arising from discovery disputes. A more detailed study of While the nature of the double standard approved by Supreme Court experience during a period of more than today’s writing requires that this dissent focus on ten years correctly concluded that: wrongful denials, I recognize that the wrong can be every

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[I]nterlocutory review of discovery orders ... has [had] a positive effect.... The increase [in appellate caseloads] If doubts remain as to the one-sidedness of the standard has been an extremely small and manageable one.... announced today, its application to currently pending cases should resolve them. See, e.g., Remington Arms Co. ..... v. Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13, 1991) (trial court order which found documents relating to The numbers, then, suggest that while the availability firearm safety relevant and required their production of interlocutory review of discovery orders added cases stayed despite no timely response or objection being to the appellate docket, interlocutory review has not made); Eli Lilly & Co. v. Marshall, No. D–1827, 35 added a large or burdensome number of cases. Tex.S.Ct.J. 168, 354 (Dec. 3, 1991 and Jan. 23, 1992) (stays of trial court order directing production of Review of Discovery Orders at 1047, 1059. information relating to the drug Prozac); see id. at 189 (Order Granting Leave to File Petition for Writ of The fact is that most petitions are denied, with fewer than Mandamus) (Doggett, J., dissenting); Valley Baptist 3% granted by us during fiscal year 1991. Most of these Medical Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J. were handled expeditiously, with over half resolved 668 (June 18, 1991) (stay issued to protect hospital from within one month of filing. Moreover, Justice Gonzalez disclosure of materials relating to policy of informing completely ignored the fact that mandamus requests in patients of risk of treatment), and 35 Tex.S.Ct.J. 452 (Feb. this court actually decreased over the last three years. 12, 1992) (motion for leave to file granted). One There were 202 of these in fiscal 1991, down from 257 interested in verifying the true meaning of the majority’s and 258, respectively, in fiscal 1989 and 1990. Although carefully chosen words will do well to observe how the the court’s overall workload is expanding, the court actually disposes of each of these matters. contribution of mandamus filings is certainly not uncontrollable.11 “In deciding whether courts should permit interlocutory *856 review in specific cases, judges and commentators tend to emphasize the needs of court administration over the needs of the litigants.” Id. at 1049. VIII. CONCLUSION While cutting off the right to mandamus review when discovery is denied may reduce the appellate workload, In an apparent attempt to cope with a false “mandamus the result will be a significant decline in the quality of explosion,” today’s opinion has offered us an explosion of justice. The inconvenience caused by the unexpected another type—a reverberating detonation of this court’s arrival of a petition that often demands immediate action prior rulings. True the majority has considerable is the price paid “to assure that ... trial proceedings are fair experience in disregarding precedent as merely a lifeless and equitable to all concerned parties.... ‘[W]e must not thing of the past. See Edgewood III, 826 S.W.2d at 516, sacrifice justice upon the altar of expediency.’ ” 517 (Doggett, J., dissenting); Terrazas, 829 S.W.2d at 739 Mandamus Review of Disclosure Orders at 422 (quoting (Mauzy, J., dissenting); Stewart Title Guaranty Co. v. David W. Holman & Byron C. Keeling, Disclosure of Sterling, 822 S.W.2d 1, 12 (Tex.1991) (Doggett, J., Witnesses in Texas: The Evolution and Application of dissenting). But a dozen or more Texas Supreme Court Rules 166b(6) and 215(5) of the Texas Rules of Civil authorities and even more rulings from the courts of Procedure, 42 Baylor L.Rev. 405, 458 (1990)) (emphasis appeals cut down at one time is not a modest added). accomplishment. Precedent, no matter how voluminous or how well-established, will clearly not restrain this majority from accomplishing its preconceived social policy objectives.

VII. Through both deed and now word, the majority invites a true explosion in mandamus filings. What does an The majority announces here not a standard, but a pseudo- attorney whose client faces the possibility of a judgment standard. In reality, the rule is little more than “how can for significant damages have to lose from accepting the we help those whom we want to help?” The only true beneficence of a majority of this court ever willing to precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712 serve as protector of the privileged? Will a deposition site (Tex.1991), where Republican relators in redistricting other than that ordered by the trial court *857 be more were accorded relief in the Supreme Court never sought costly and inconvenient to the claimant? Get a stay from in any other forum. This “triple R exception to the Texas Supreme Court, even if your petition is still mandamus,” id. at 760–61 (Mauzy, J., dissenting), only pending in the court of appeals. See Continental Can Co. presages the continued pursuit of this goal. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Walker v. Packer, 827 S.W.2d 833 (1992)

v. Wittig, No. D–2015, 35 Tex.S.Ct.J. 355, 1992 WL 17415 (Jan. 29, 1992) (stay of trial court order directing I dissent. Today’s decision departs from previous engineering employee of products liability defendant to instances where this court has provided mandamus relief be deposed in Houston rather than Chicago even though to correct a wrongful denial of discovery, and labors too mandamus petition was pending in court of appeals). Did hard to conclude that appeal is an adequate remedy for a the trial court resolve a conflict in deposition schedules in party who is denied adequate discovery. a manner unacceptable to an insurance company? Don’t worry, the Texas Supreme Court will stay proceedings I would hold that mandamus is available to correct a trial even without bothering to get a response from the affected court error which negatively and materially affects the judge. See Cigna Corp. v. Spears, No. D–2069, 35 right of aggrieved parties to adequately present their Tex.S.Ct.J. 463 (Feb. 19, 1992). Any attorney whose cases, whether the particular party is seeking discovery or client desires to make more difficult access to information resisting it. See Iley v. Hughes, 158 Tex. 362, 368, 311 that will jeopardize its credibility, suggest its liability or S.W.2d 648, 652 (1958); see also Elizabeth G. defeat its defenses would be foolish to accept a trial court Thornburg, Interlocutory Review of Discovery Orders: An discovery order. A majority of the Texas Supreme Court Idea Whose Time Has Come, 44 SW.L.J. 1045 (1990). In is ready and willing to interfere for the asking. the case before us, the trial court’s denial of discovery has a material and adverse effect on the Walkers’ ability to The ripple effect created by today’s refusal to accord present their case. The information they seek could mandamus review to pretrial discovery orders will swell impugn the credibility of key expert witnesses at trial. to tidal-wave proportion, and sweep before it any hope of Because their medical malpractice claim, like all such fair and consistent application of our Texas discovery claims, will likely stand or fall on the credibility of the rules. In many cases it will leave buried in the sand any expert witnesses, I would hold that the Walkers are possibility of trials directed by the full and truthful entitled to the information they seek, and that relief by revelation of the underlying facts. Juries will be forced to appeal is inadequate. resolve critical disputes based not on truths but rather upon whatever half-truths can be discovered. Left in the Discovery is the “linchpin of the search for truth,” and wreckage on the beach will be the tattered remains of the “[a]ffording parties full discovery promotes the fair many prior decisions of this court and others that viewed resolution of disputes by the judiciary.” State v. Lowry, litigation as a search for truth in which fair and prompt 802 S.W.2d 669, 671 (Tex.1991). Today the court appellate review of an order denying discovery was vital. removes and disposes of that “linchpin” and abandons enforcement of fair and adequate discovery. Because I believe that mandamus relief should be readily available when a court allows either too much or too little discovery, I dissent. MAUZY, J., joins in this dissenting opinion.

GAMMAGE, Justice, dissenting.

Footnotes 1 St. Paul contends that the Walkers’ request for mandamus relief is barred by laches since the Walkers delayed almost two years before seeking to compel production. Because we find that the Walkers have failed to establish the requirements for mandamus relief, we do not reach this issue. 2 The court also sustained Aetna’s motion to quash, holding that the discovery requested was improper under the investigation exemption, the attorney-client privilege, and the work-product privilege. The Walkers do not complain to us about this ruling. 3 Even if no evidence had been presented, the Walkers would have had the burden of filing an affidavit so stating. See Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex.1988) (“The undisputed fact that no testimony was adduced at any of the hearings, as set forth in the affidavit of relator’s counsel, satisfies the relator’s burden under Rule 121.”). 4 The records sought in Russell included, among others: (2) All appointment books maintained by [the expert physician] during 1969; (3) All statements, listings, ledgers, or other books showing the accounts receivable of [the expert physician] during 1969; (4) All deposit slips or tickets showing deposits into bank accounts of [the expert physician] during 1969; (5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in cash, by check or by

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any other means [by the expert physician] during 1969; (6) All statements of account or bills for services rendered [by the expert physician] during 1969; (7) All accounting ledgers, journals or other books of account of [the expert physician] maintained during 1969; and (8) All financial statements showing income and expenses of [the expert physician] during 1969. 452 S.W.2d at 435. 5 Evidence of bias is not admissible if the witness “unequivocally admits such bias or interest” at trial. Tex.R.Civ.Evid. 613(b). To date, however, Dr. Gilstrap has not admitted any bias, but rather has flatly denied it. In this situation, such evidence should be discoverable. 6 We do not decide whether the documents were properly discoverable, only that the trial court erred in denying discovery based solely on Russell. If the Walkers sought the documents solely to attack the credibility of Dr. Gilstrap by showing that his deposition testimony was untrue, for instance, the information would probably not be reasonably calculated to lead to the discovery of admissible evidence. See Tex.R.Civ.Evid. 608(b). (“Specific instances of the conduct of a witness [other than criminal convictions], for the purpose of attacking ... his credibility, may not be ... proved by extrinsic evidence.”). 7 Additionally, this Court will not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of the state as to require correction. Cf. Tex.Gov’t Code § 22.001(a)(6); Tex.R.App.P. 140(b). This issue, however, is properly resolved in deciding whether to grant leave to file the petition, not in its disposition. 8 See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (imposition of discovery sanctions); Schultz v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 739 n. 4 (Tex.1991) (refusal to enforce turnover order by contempt); Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) (refusal to bar judicial officer from testifying as expert witness); Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 (Tex.1991) (refusal to grant nonsuit); Bell Helicopter Textron, Inc., v. Walker, 787 S.W.2d 954, 955 (Tex.1990) (refusal to dismiss for lack of subject-matter jurisdiction); Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (grant of new trial); Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 801–02 (Tex.1986) (imposition of discovery sanction); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (grant of new trial); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (denial of plea in abatement); State v. Walker, 679 S.W.2d 484, 485 (Tex.1984) (refusal to reinstate temporary injunction); Pat Walker & Co. v. Johnson, 623 S.W.2d 306, 309 (Tex.1981) (refusal to extend time for filing statement of facts); State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (refusal to suspend attorney); Pope v. Ferguson, 445 S.W.2d 950, 953 (Tex.1969) (refusal to dismiss criminal case pending against relator), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Crane v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) (discovery order); Iley v. Hughes, 158 Tex. 362, 367–68, 311 S.W.2d 648, 652 (1958) (bifurcation of trial); Harrell v. Thompson, 140 Tex. 1, 1, 165 S.W.2d 81, 81 (1942) (restriction of oil and gas production by Railroad Commission); Ben C. Jones & Co. v. Wheeler, 121 Tex. 128, 130, 45 S.W.2d 957, 958 (1932) (refusal to enter judgment nunc pro tunc); Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (1926) (refusal to enter judgment); Aycock v. Clark, 94 Tex. 375, 376–77, 60 S.W. 665, 666 (1901) (refusal to enter injunction); Screwmen’s Benevolent Ass’n v. Benson, 76 Tex. 552, 555, 13 S.W. 379, 380 (1890) (expulsion of member from charitable corporation). 9 We recently held that a mandamus action was never required to preserve error on appeal. Pope v. Stephenson, 787 S.W.2d 953 (Tex.1990). We explained: “The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a party’s right to complain on appeal.” Id. at 954. 10 Courts use a similar approach in determining whether a witness has properly invoked the Fifth Amendment privilege against self-incrimination. It is often impossible for a witness to prove that an answer might incriminate him without actually answering and thereby forfeiting the privilege. Therefore, rather than requiring actual proof of the privilege, courts sustain the privilege if it is “evident from the implications of the question, in the setting in which it is asked, that a responsive answer [might be incriminating].” Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). 1 If the records have relevance apart from their potential for impeachment, however, Russell does not bar discovery. See Ex Parte Shepperd, 513 S.W.2d 813, 816 (Tex.1974). 1 Billie Holiday, God Bless the Child (Okeh Records 1941) (words and music by Arthur Herzog, Jr. & Billie Holiday).

2 These entities rarely need information to prevail: Even when an institutional litigant appears as a plaintiff suing an individual defendant as, for example, when a corporation sues an individual on a debt, the institutional litigant tends to already have the information needed to prove its case. Review of Discovery Orders at 1070 n. 162. They are also less likely to require information from an opponent to establish affirmative defenses. Id. at 1070.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Walker v. Packer, 827 S.W.2d 833 (1992)

3 With no appellate opinions setting forth appropriate limitations upon trial court discretion, “litigants may receive widely divergent rulings from different judges, even in the same geographical location.” Id. at 1077. Proper use of mandamus discourages forum shopping to obtain a trial judge more likely to provide a more favorable ruling and allows for greater consistency and accountability: [Such] review ... even[s] out inconsistencies in trial court rulings, and ... allows trial judges to operate with a more accurate understanding of the meaning of the discovery rules.... If the appellate court is consistent, it can fix disparities and inequities produced by the trial courts and promote consistency among the trial level decisionmakers. Id. at 1047, 1077 (footnotes omitted). 4 Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court abuse in improperly limiting or denying discovery. See, e.g., Kentucky Fried Chicken Nat’l Mgmt. Co. v. Tennant, 782 S.W.2d 318 (Tex.App.—Houston [1st Dist.] 1989, orig. proceeding) (writ granted when discovery of plaintiff’s psychiatric records denied); Foster v. Heard, 757 S.W.2d 464 (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding) (mandamus issued against trial court’s denial of discovery of post-accident investigation report); Super Syndicate, Ltd. v. Salazar, 762 S.W.2d 749 (Tex.App.—Houston [14th Dist.] 1988, orig. proceeding) (granting mandamus against trial court’s denial of discovery of claims investigator’s files); Goodspeed v. Street, 747 S.W.2d 526 (Tex.App.—Fort Worth 1988, orig. proceeding) (trial court’s denial of discovery of hospital records based on privilege without presentation of evidence overturned); Estate of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App.— Austin 1987, orig. proceeding) (denial of discovery of insurer’s internal communications overturned on mandamus, despite argument that “mandamus is proper only [for] improperly ordered discovery of privileged material, not when the trial court has denied discovery.”); Essex Crane Rental Corp. v. Kitzman, 723 S.W.2d 241 (Tex.App.—Houston [1st Dist.] 1986, orig. proceeding) (writ granted to correct trial court’s order quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, 730 (Tex.App.—San Antonio 1985, orig. proceeding) (mandamus appropriate “not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court improperly limits or denies discovery.”); Aztec Life lns. Co. v. Dellana, 667 S.W.2d 911 (Tex.App.—Austin 1984, orig. proceeding) (mandamus issued against trial court for denying discovery of claims files). 5 The majority identifies by name five cases in conflict with today’s writing, declaring that: “We disapprove of Barker and Allen, and any other authorities,” at 842, and “[we] disapprove of Cleveland, Crane, Jampole, and any other authorities,” at 842, to the extent they conflict with the new Walker standard. Subsumed within the “other” designation are a great number of additional cases from this court and the courts of appeals that would grant to the Walkers relief when the trial court has clearly abused its discretion in denying discovery. The court’s willingness to sweepingly erase whole unidentified categories of recent precedent is exemplified by their signing of a blank check: “any other authorities,” meaning all other authorities, are now endangered. 6 The few cases citing Automatic Drilling do not expand its holding to that suggested by the court today. See Jampole, 673 S.W.2d at 574–75 (“We hold that discovery cannot be denied because of an asserted proprietary interest in the requested documents when a protective order would sufficiently preserve that interest.”); Firestone Photographs, Inc. v. Lamaster, 567 S.W.2d 273, 278 (Tex.Civ.App.—Texarkana 1978, no writ) (“[T]he claim of trade secrets ... does not necessarily defeat the right of discovery.”). 7 James B. Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S.Tex.L.Rev. 305, 345– 46 (1986), stating that: Trade secrets ... are not, per se, exempt from discovery. The trial court is obligated to weigh the need for discovery against the interests on secrecy.... The need to protect the confidentiality of documents does not constitute an absolute bar to discovery.... 8 Although also citing General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983, orig. proceeding), as allowing mandamus relief from an allegedly burdensome trial court discovery order, the majority fails to note the very expansive discovery permitted in that case. The efforts of General Motors to limit discovery to results from tests performed on the particular type of truck and the particular type of impact involved in the subject incident were rejected, and it was directed to supply all impact test results for all types of trucks manufactured over a 23–year period. 9 If the trial court “refuses to make [the discovery] part of the record,” At 843, presumably the only relief accorded under today’s standard would be issuance of a writ directing inclusion of these materials. 10 See Caller Times Publishing Co. v. Triad Communications, 826 S.W.2d 576, 597–608 (Tex.1992) (Doggett, J., dissenting) (addressing court’s refusal to allow evidence of predatory intent); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 527 (Tex.1990) (Doggett, J., dissenting); Crim Truck & Tractor Co. v. Navistar Int’l Transp. Co., 823 S.W.2d 591, 596 & n. 1 (Tex.1992) (Mauzy, J., dissenting); Reagan v. Vaughn, 804 S.W.2d 463, 488 (Tex.1990) (Doggett, J., concurring and dissenting). 11

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Supreme Court Filings

Year Mandamus All Total Mandamus Discovery Discovery Mandamus and Applications as Percentage Orders Filings for Writ of Total

1979 24 129 933 2.6%

1981 17 98 943 1.8%

1989 51 257 1078 4.7%

1991 64 202 1257 5.1%

Interlocutory Review of Discovery Orders at 1058–59; the 1989 and 1991 figures are derived from my review of court filings.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 Wood v. Tice, 988 S.W.2d 829 (1999)

satisfied the statute with an expert’s deposition transcript. Alternatively, Wood maintains the trial court abused its 988 S.W.2d 829 Court of Appeals of Texas, discretion by denying him an extension of time to file an San Antonio. expert report. Finding no error, we affirm.

Neale WOOD, Appellant, v. Diane TICE, D.D.S.; Barry Solomon, D.D.S.; and Background Dental Centers of America, L.L.C., also doing business as Windsor Dental Center, Appellees. On November 1, 1996, Wood sued Diane Tice, Andre Smith, Barry Solomon, and Dental Centers of America, No. 04–98–00392–CV. | Feb. 17, 1999. L.L.C. for negligent treatment of a chipped tooth. In Patient sued dentists and dental clinic for malpractice. March 1997, Wood took Dr. Smith’s deposition, which The 57th Judicial District Court, Bexar County, Peter was transcribed and distributed to Drs. Tice, Smith, and Michael Curry, J., dismissed action, and patient appealed. Solomon on April 17, 1997. Dental Centers did not The Court of Appeals, Green, J., held that: (1) patient’s receive a copy of the deposition. failure to timely provide dental clinic with copy of deposition warranted dismissal of clinic; (2) deposition In January 1998, the defendants moved to dismiss the testimony of one of dentists being sued failed to satisfy case based on Wood’s failure to provide an expert’s the Medical Liability Act’s requirement of an expert report. See TEX.REV.CIV. STAT. ANN. art. 4590i, § report; (3) finding that patient was not entitled to 30–day 13.01(d–e) (Vernon Supp.1998) (“Medical Liability grace period in which to file expert report was supported Act”). In response, Wood filed a motion for extension of by evidence; and (4) patient was not entitled to new trial time to file an expert report, which included an affidavit in order to file expert report. indicating his belief that Dr. Smith’s deposition satisfied the statute. On January 16, the trial court orally granted a Affirmed. dismissal with prejudice. Its order, however, was not signed until March 10. *829 From the 57th Judicial District Court, Bexar County, Texas Trial *830 Court No. 98–CI–03977 Honorable On April 23, Wood moved for a new trial, arguing he did Peter Michael Curry, Judge Presiding.1 not learn about the signed order until April 15. See TEX.R.APP. P. 304a(4–5). He also urged the court to Attorneys and Law Firms grant him an extension of time to file an expert report. The trial court denied the motion for new trial, finding it Randy Gathany, David W. Rogers, Law Offices of Dave had no jurisdiction. The court also denied Wood’s motion Rogers, Inc., San Antonio, for Appellant. to reconsider.2 Despite Wood’s lack of notice, he timely perfected this appeal. Todd A. Prins, Stanley E. Faye, Edward C. Mainz, Jr., Robert B. Biechlin, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, for Appellee.

Before CATHERINE STONE, Justice, PAUL W. Compliance with the Medical Liability Act GREEN, Justice, KAREN ANGELINI, Justice. Wood claims he satisfied the Medical Liability Act with a copy of Dr. Smith’s deposition. In contrast, the defendants contend the deposition is too “generalized and speculative” to satisfy the statute’s requirement of an expert report. We agree with the defendants. OPINION We review the trial court’s dismissal order with the abuse PAUL W. GREEN, Justice. of discretion standard. See Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.—San Antonio Neale Wood appeals an order dismissing his suit for 1996, no writ). In applying this standard, we defer to the failing to file an expert report under the Medical Liability trial court’s factual determinations but review questions and Insurance Improvement Act. Wood contends he of law de novo. Id.; see also Johnson v. City of Fort © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wood v. Tice, 988 S.W.2d 829 (1999)

Worth, 774 S.W.2d 653, 656 (Tex.1989) (describing Q. So when a patient comes in with any type of a statutory construction as question of law). complaint, you should take an x-ray, no matter what? [1] A. Yes. The legislature enacted the Medical Liability Act to curtail frivolous claims against physicians and other health care providers. Horsley–Layman v. Angeles, 968 Q. Okay. And would it be below the minimum S.W.2d 533, 537 (Tex.App.—Texarkana 1998, no pet.). accepted standard of care to fail to take that x-ray? To that end, section 13.01 requires a plaintiff to provide each defendant with one or more expert reports relating to A. Yes. liability and causation. See TEX.REV.CIV. STAT. ANN. ... art. 4590i, § 13.01(i–j) (Vernon Supp.1998); HOUSE COMM. ON CIVIL PRACTICES, BILL ANALYSIS, Q. If it turns out that there was an x-ray that was Tex. H.B. 971, 74th Leg., R.S. (1995). The expert report taken, and for some reason was not shown in here, must be “furnish[ed],” together with a curriculum vitae, and that this x-ray appeared somewhere in the future no later than 180 days after suit is filed. TEX.REV.CIV. and it showed that there had been an infection in it, STAT. ANN. art. 4590i, § 13.01(d) (Vernon Supp.1998). would it have been—infection in Tooth No. 12, If the plaintiff fails to timely provide the report, the trial would it have been below the minimum standard of court “shall, on *831 the motion of the affected physician care to put this miracle mix on there anyway? ... or health care provider, enter an order” dismissing the suit with prejudice. Id. § 13.01(e).3 A. Yes, sir. [2] The statute defines “expert report” as a “written report The deposition also includes the following information by an expert that provides a fair summary of the expert’s about Dr. Tice’s potential liability: opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered Q. Would you, going back to the reference to the by the physician or health care provider failed to meet the reasonably prudent dentist, would you consider that standards, and the causal relationship between that failure it would be below a minimum standard of care for a and the injury, harm, or damages claimed.” Id. § dentist to start a root canal that soon after the 13.01(r)(6). The report must specifically refer to the procedures that are described for November 5th of defendant and discuss how that defendant breached the 1994? applicable standard of care. See Horsley–Layman, 968 S.W.2d at 535; cf. TEX.REV.CIV. STAT. ANN. art. ... 4590i, § 13.01(l ) (Vernon Supp.1998) (requiring good faith effort to comply with the definition of expert report). A. I don’t think any reasonable and prudent dentist would. [3] Wood filed suit on November 1, 1996. His expert’s report was due April 30, 1997. On April 17, the individual At the dismissal hearing, Wood claimed the following defendants received copies of Dr. Smith’s deposition, but excerpt discussed Dr. Solomon’s liability: Wood neither provided Dental Centers with a copy nor did he indicate he would rely on the deposition as an Q. When you—so what type of guidelines were expert report. Because Dental Centers is a health care established with them for the means whereby you did provider entitled to receive a report, the trial court did not various procedures? abuse its discretion in dismissing Wood’s claim against that defendant. See TEX.REV.CIV. STAT. ANN. art. A. There were really no guidelines except for self- imposed guidelines. 4590i, § 1.03(a)(3) (Vernon Supp.1998) (defining health care provider as a professional association providing Q. So if a dentist chose to on an individual basis, was dental services); see also id. § 13.01(d–e). there anybody overseeing that dentist [sic]—the [4] quality of that dentist’s work? To determine whether the trial court properly dismissed the remaining defendants, we must evaluate whether Dr. A. No, sir. Smith’s deposition satisfies the definition of an “expert report.” At the dismissal hearing, Wood argued the The deposition testimony fails to mention the defendants following excerpt satisfied the definition by establishing by name, fails to specify how *832 the defendants the liability of Dr. Tice: breached the standard of care, and fails to demonstrate causation and damages. Furthermore, there is no © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Wood v. Tice, 988 S.W.2d 829 (1999)

indication the deposition included a copy of Dr. Smith’s Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 curriculum vitae. Therefore, as a matter of law, Dr. S.W.2d 124, 126 (1939)). Smith’s deposition does not satisfy the Medical Liability Act’s requirement of an expert report. Accordingly, the Wood filed his motion for extension of time on the day trial court did not abuse its discretion in dismissing the trial court heard the defendants’ motion to dismiss. In Wood’s claims against the remaining defendants. his motion, Wood alleged “he had a good faith belief that the deposition constituted an expert report.” Responding to this assertion during the hearing, counsel David Coates said he discussed the absence of an expert report with plaintiff’s counsel, Randy Gathany, in December 1997. Grace Period According to Coates, Gathany never indicated reliance on [5] Dr. Smith’s deposition until the day of the hearing. In Wood argues the trial court erred by denying him a contrast, Gathany said he “believe[d]” he “mentioned the thirty-day grace period under section 13.01(g) of the deposition.”5 Because the evidence of Wood’s reliance Medical Liability Act. We disagree.4 was conflicting, we cannot say the trial court abused its discretion in denying Wood an extension of time. See We review the trial court’s decision with the abuse of Estrello, 965 S.W.2d at 758 (finding no abuse of discretion standard. Estrello, 965 S.W.2d at 758. We discretion when evidence conflicted). Contra Horsley– further note the trial court does not abuse its discretion Layman, 968 S.W.2d at 536–37 (finding that statement of when it bases its decision on conflicting evidence. Id. belief was not controverted). [6] Section 13.01(g) provides: [7] In his motion for new trial, Wood also requested an extension of time to file an expert report. He contends the Notwithstanding any other trial court erred in finding it had no jurisdiction over the provision of this section, if a motion. The trial court’s ruling, however, is irrelevant claimant has failed to comply with because the motion for new trial was unnecessary in light a deadline established by of Wood’s previous request for an extension of time. Cf. Subsection (d) of this section and TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g) after hearing the court finds that the (Vernon Supp.1998) (noting section 13.01(g) may be failure of the claimant or the invoked before dismissal under section 13.01(e)); claimant’s attorney was not McClure, 959 S.W.2d at 682 (demonstrating section intentional or the result of 13.01(g) may be invoked after dismissal under section conscious indifference but was the 13.01(e)). Additionally, Wood’s motion for new trial result of an accident or mistake, the offered no new evidence regarding his lack of intentional court shall grant a grace period of or conscious indifference. Instead, it was limited to new 30 days to permit the claimant to allegations that *833 he did not timely receive notice of comply with that subsection. A the dismissal order.6 Despite this lack of notice, Wood motion by a claimant for relief timely perfected his appeal. Thus, Wood’s complaint is under this subsection shall be without merit. considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. Conclusion TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(g) (Vernon Supp.1998) (emphasis added). Proof of accident We affirm the trial court’s dismissal order. or mistake must establish “some” excuse, not necessarily a “good” excuse. McClure v. Landis, 959 S.W.2d 679, 681 (Tex.App.—Austin 1997, pet. denied) (applying

Footnotes 1 The Honorable Peter Michael Curry signed the appealable order, but the Honorable Martha Tanner presided at the hearing.

2 Technically, the motions should have been dismissed for lack of jurisdiction.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Wood v. Tice, 988 S.W.2d 829 (1999)

3 The Medical Liability Act also permits dismissal if the plaintiff fails to “file” either a cash deposit, cost bond, or expert report 90 days after suit is filed. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(a–b) (Vernon Supp.1998). This provision was not raised by the defendants in the trial court. 4 This case does not involve any other extensions of time permitted by the Medical Liability Act. See, e.g., TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(h) (Vernon Supp.1998) (extending 180–day period by agreement); id. § 13.01(f) (extending 180–day period by court order); cf. Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.—Fort Worth 1998, no pet.) (suggesting a § 13.01(f) extension must be requested by the plaintiff and granted by the court within 30 days of the date the 180–day period ends). 5 Neither attorney objected to the unsworn testimony. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (finding unsworn attorney testimony to be evidence in the absence of an objection). 6 In contrast, the defendants offered additional evidence that Gathany told Coates in their December conversation that “the courts never dismiss a case for failing to file an expert’s report.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4