Med-Mal: Justice Henson dissents on issue of extension to meet expert-report requirement

D I S S E N T I N G O P I N I O N

The expert-report requirement found in section 74.351 of the civil practice and remedies code was enacted as a gate-keeping measure, intended to weed out frivolous claims and encourage expert screening to ensure that a viable cause of action exists before the parties expend substantial time and effort in litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2007); Sellers v. Foster, 199 S.W.3d 385, 398 (Tex. App.--Fort Worth 2006, no pet.) (statute enacted to "curtail frivolous claims against physicians and related health care providers"); Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex. App.--Texarkana 1998, no pet.) (expert-report requirement created "to address the perceived problem that litigants were filing unmeritorious claims against medical practitioners which were not adequately investigated in a timely manner").

The present case, however, involves Cecelia Ledesma entering the hospital for surgery on her appendix and an ovary, only to leave the hospital less than 24 hours later with permanent damage and paralysis in her left arm, hand, and wrist--an area where there had been no prior injury. It would seem that Ledesma's suit is hardly the type of claim that the statute was intended to prevent.

Expert reports serve the dual purposes of giving notice to the medical providers of the basis for the claim and providing a basis for the trial court to conclude that the claims have merit. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). Section 74.351(r)(6) merely requires a summary of the expert's opinions "as of the date of the report," rather than a full-blown analysis of the claim that could only be completed after full discovery. See Palacios, 46 S.W.3d at 879 ("[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 the evidence offered in a summary-judgment proceeding or at trial.").

Section 74.351(c) authorizes the trial court to grant a 30-day extension of time for a claimant to cure any deficiencies in her expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). The majority holds that the trial court did not err in denying Ledesma's request for an extension under section 74.351(c). While the trial court's decision whether to grant such an extension is discretionary, Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.--Austin 2007, no pet.), I would hold that the trial court abused its discretion in denying Ledesma's request for extension.

A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). The trial court in the present case gave no indication why Ledesma's request for an extension under 74.351(c) was denied, thus providing no reasonable measure by which this Court could confirm that the decision was not arbitrary or capricious. While the trial court has discretion in deciding whether to grant an extension under 74.351(c), Austin Heart, 228 S.W.3d at 279, there must also be some meaningful review for the abuse of such discretion. An abuse of discretion does not exist as long as there is "some evidence of a substantive and probative character to support the trial court's decision." Hart v. Wright, 16 S.W.3d 872, 875 (Tex. App.--Fort Worth 2000, pet. denied). Significantly, no such evidence has been provided in the present case. There appears to be no basis in the record for the trial court's refusal to grant Ledesma's timely request for the statutorily authorized extension of time.
In deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery--a situation analogous to Ledesma's request for an extension, which was based on her difficulties in conducting discovery--the Texas Supreme Court has considered factors such as the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.2d 150, 161 (Tex. 2004).

Ledesma filed suit on January 12, 2004, and requested an extension of time for filing expert reports for the first time on April 29, 2004, noting that she anticipated delays in obtaining sufficient reports due to ongoing discovery disputes. Ledesma repeated her request for an extension of time on July 13, 2004, again emphasizing problems with discovery. The record does not indicate any undue delay by Ledesma in requesting her extension of time that would give the trial court reason to deny her request.

The parties' discovery disputes were based on Ledesma's request that she be allowed to depose two nurses who were involved in the surgery, in order to ascertain the actual events that took place during the procedure. Without knowing what actually happened during Ledesma's surgery, her experts were at a distinct disadvantage in preparing their reports, particularly in opining on how Bruce Johns's actions deviated from the standard of care or the causal link between Johns's actions and the injury. Ledesma's inability to obtain the requested discovery may have prevented her from acquiring additional material information that she could have used to address any alleged deficiencies in her expert reports prior to the statutory deadline.

Furthermore, it appears that Ledesma exercised due diligence in attempting to obtain sufficient expert reports. She served two expert reports listing Johns by name--one of which was written by an accomplished anesthesiologist from Cornell University--each containing a significant amount of detail in light of the fact that she was forced to proceed with extremely limited information due to the ongoing discovery disputes. In fact, the trial court apparently had no problem with the content of the reports with respect to Dr. Joseph Eddings, the anesthesiologist assigned to Ledesma's surgery, as it found that the reports were sufficient under section 74.351 as to Eddings.
It is hard to fathom why the trial court found that Ledesma's expert reports were insufficient as to Johns, while simultaneously finding that they were sufficient as to Eddings. In the same order granting Johns's motion to dismiss on the basis of section 74.351, the trial court denied Eddings's motion to dismiss on the same grounds. The trial court provided no explanation for this distinction, nor is a reasonable explanation readily apparent from the record. Dr. Dinner's report references the duty and standard of care of "[t]he anesthesia team consisting of Dr. Joseph Eddings and Bruce Johns CRNA" and makes no distinction between Eddings or Johns at any point during the report. Dr. Hamilton's report states that it was the negligence of the surgeons "along with that of Dr. Joseph Eddings MD, the anestheologist [sic], and Bruce Johns, Certified Registered Nurse Anesthetist, that produced a severe inexcusable injury" to Ledesma's radial nerve. Dr. Hamilton's report does not distinguish the conduct or standard of care applicable to Eddings from that applicable to Johns. See In re Stacy K. Boone, P.A., 223 S.W.3d 398, 405 (Tex. App.--Amarillo 2006, no pet.) (holding that where same standard of care applied to both physician and physician assistant, expert report need not separately set forth standard of care applicable to physician assistant). (1)

The Texas Supreme Court has allowed anesthesiologists to testify as experts as to the standard of care required of nurse anesthetists. See Webb v. Jorns, 488 S.W.2d 407, 410-11 (Tex. 1972). (2) Yet in the present case, the trial court inexplicably determined that the expert reports were inadequate as to Johns, but adequate as to Eddings. Significantly, the trial court dismissed only the claim against Johns as a result of the expert reports, leaving intact the claims against the medical center, the surgeon who performed the procedure, and Eddings. The trial court's conclusion that only the claim against Johns was subject to dismissal serves to reinforce the notion that this was not the type of frivolous claim that the expert-report requirement was meant to prevent.
As this Court has previously noted, the purpose of the 30-day extension provided in section 74.351(c) is to allow a party to correct defects in a timely filed expert report. See Austin Heart, 228 S.W.3d at 278 ("[W]e are of the view that the cure provisions of section 74.351(c) are designed to allow the plaintiffs an opportunity to address and correct the defect."). (3) The intent behind this extension is analogous to the purpose of special exceptions to civil pleadings, which is to "compel clarification of pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action." See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). When a trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading, unless the defect cannot be cured. Id. The expert-report requirement and the extension allowed by section 74.351(c), much like the concept of special exceptions and the opportunity to amend pleadings, should be used as procedural tools to help clarify the issues in complex litigation, rather than as a statutory trap for the unwary in what might otherwise be a meritorious claim.

As a result, I would hold that the trial court acted in an arbitrary and unreasonable manner by denying Ledesma an extension of time to correct her expert reports, where no reasonable grounds for denial are apparent and when it is clear that she exercised due diligence in attempting to obtain sufficient reports and repeatedly asking for notice and time to cure any deficiencies in the event that the court determined the reports were insufficient.

While the majority points to the fact that Ledesma has not preserved any complaints on appeal regarding discovery, such preservation of error is not necessary in order for this Court to review the record for evidence of Ledesma's due diligence in attempting to obtain sufficient reports. In any case, one wonders whether the parties' discovery disputes could have been resolved more efficiently if Ledesma had been afforded the 30-day extension contemplated in section 74.351(c).

Because I would hold that, in light of the circumstances, the trial court abused its discretion in failing to grant an extension of time under section 74.351(c), I respectfully dissent.

Diane Henson, Justice
Filed: May 23, 2008

1. Nurse anesthetists and physician assistants are treated similarly by the occupations code. See Tex. Occ. Code Ann. §§ 157.051-.060 (West 2004 & Supp. 2007) (subchapter entitled "Delegation to Advanced Practice Nurses and Physician Assistants"); see also id. § 301.152 (West 2004) (defining "advance practice nurse" to include nurse anesthetists).
2. A physician is not disqualified from offering an opinion regarding nursing care simply because he is a physician, rather than a nurse. See Manor Care Health Servs., Inc. v. Ragan, 187 S.W.3d 556, 562 (Tex. App.--Houston [14th Dist.] 2006, pet. granted, judgm't vacated w.r.m.) (physician need not have nursing experience to offer expert opinion regarding nursing care); Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App.--Texarkana 1997, pet. denied) ("Various jurisdictions, including Texas, that have addressed the issue of whether a physician is qualified to render expert testimony as to nursing standards of care have found physicians to be qualified.").
3. As Justice Willett suggests in his concurring opinion in Ogletree v. Matthews, No. 06-0502, 2007 Tex. LEXIS 1028 (Tex. Nov. 30, 2007) (Willett, J., concurring), parties using the 30-day extension are not limited to merely making changes to an existing deficient report, but may actually substitute a different expert, and therefore an entirely new report. See id. at *18 ("[D]esignating the wrong type of medical professionals to opine on standard of care[] is the type of defect for which a trial court may grant a discretionary section 74.351(c) extension.").

DISSENTING OPINION: (Before )

Cecelia Ledesma v. George L. Shashoua, M.D.; Oakwood Women's Cenre, P.A. at Round Rock; Joseph Eddings; B. Johns, CRNA; and Round Rock Medical Center--Appeal from 277th District Court of Williamson County

HCLC: Untimely filing of expert report results in dismissal, court of appeals affirms

Ruth Prestwood, Kate Wilson, both Individually and on behalf of The Estate of Clyde L. Prestwood v. Stephen Settle, M.D., No. (Tex.App.- Austin, Feb, 28, 2008)(Opinion by Justice Henson) (medical malpractice suit dismissed, untimely expert report, 120-day period starts running at filing, attorney's fees to defendant) (Before Justices Patterson, Puryear and Henson)
Appeal from 201st District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-06-002800, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellants Ruth Prestwood and Kate Wilson, individually and on behalf of the estate of Clyde L. Prestwood (collectively, "Prestwoods"), appeal the trial court's order dismissing their health care liability suit against Dr. Stephen Settle, M.D., and awarding Dr. Settle attorney's fees. The trial court found that the Prestwoods failed to serve an expert report and curriculum vitae within the prescribed 120-day period under chapter 74 of the civil practice and remedies code, mandating dismissal of their suit and the award of reasonable attorney's fees to the affected health care provider. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b) (West Supp. 2007). Because we conclude that dismissal was required and that the attorney's fee award was reasonable, we affirm the judgment of the trial court.

BACKGROUND

The relevant facts of this case are not in dispute. The Prestwoods filed a medical-malpractice suit against Dr. Settle on August 3, 2006, alleging that he negligently performed an aortic-aneurysm repair on Clyde Prestwood, resulting in complications that proximately caused Mr. Prestwood's death. (1) Their suit was a health care liability suit governed by chapter 74 of the civil practice and remedies code. See id. §§ 74.001-.507 (West 2005 & Supp. 2007). Under chapter 74, the Prestwoods were required to serve Dr. Settle with copies of an expert report and their expert's curriculum vitae within 120 days of filing suit. See id. § 74.351(a) (West Supp. 2007). (2) The statute further provides that if the claimant fails to serve an expert report and curriculum vitae within the 120-day period, then the trial court, on the motion of the affected physician or health care provider, shall award to the affected physician or health care provider reasonable attorney's fees and dismiss the claim with prejudice. Id. at § 74.351(b).

The parties agree that the 120-day deadline was December 1, 2006, and that this date, a Friday, was neither a weekend nor a legal holiday. (3) The Prestwoods first served Dr. Settle with their expert reports and curricula vitae on December 4, 2006, which was 123 days after they filed their original petition.

On January 3, 2007, Dr. Settle filed a motion to dismiss the Prestwoods' suit with prejudice and sought reimbursement for his attorney's fees and costs. In response, the Prestwoods asserted that rules 4, 8, and 21a of the Texas Rules of Civil Procedure required the addition of three days to the 120-day service period, making the service of their expert reports and curricula vitae on the defendant timely. (4) See Tex. R. Civ. P. 4, 8, 21a.

Alternatively, the Prestwoods argued that section 74.351 is unconstitutional for its "overbreadth" and vagueness, that the mandatory-dismissal provision violated their due process rights under the federal and Texas constitutions, and that enforcing the 120-day period, rather than the 123-day period purportedly allowed by the rules of civil procedure, would result in a denial "of open access to this Court's processes."

A hearing on Dr. Settle's motion took place January 29, 2007. After the trial court orally granted the motion to dismiss for failure to timely serve the expert reports, counsel for Dr. Settle offered sworn testimony on the issue of reasonable attorney's fees; he testified regarding his qualifications, the rates charged by attorneys who specialize in defending physicians and health care providers, and the amount of time he had spent on matters related to the motion. He stated that the typical hourly rate charged by attorneys who specialize in health-liability defense claims is between $180 and $250 per hour and that $1,000 was a reasonable fee in this case, based on the four hours he had spent in preparing for the hearing and "returning," apparently referring to the time he had spent commuting from San Antonio for the hearing. On cross-examination, he testified that the hourly rate he was actually billing his client in this case was only $175 per hour and clarified that he was in fact charging for the travel time between his office in San Antonio and the Travis County courthouse.

After the hearing, the trial court entered an order granting Dr. Settle's motion to dismiss with prejudice and awarding him $800 in attorney's fees. Among its findings of fact and conclusions of law, the trial court determined that (1) appropriate application of the law required the court to dismiss the Prestwoods' claims with prejudice and to award reasonable attorney's fees to the defendant; (2) Rule 21a of the Texas Rules of Civil Procedure is not applicable to the specific facts of this case; (3) counsel for Dr. Settle had presented competent evidence of his attorney's fees; and (4) the amount of $800 in attorney's fees was reasonable and justified.

In their first issue on appeal, the Prestwoods argue that the trial court abused its discretion in awarding attorney's fees to Dr. Settle because the evidence was factually and legally insufficient to support the award. In their second issue, they assert that the trial court abused its discretion in dismissing their suit because it failed to properly calculate the period in which they were required to serve Dr. Settle with their expert reports in light of and in accordance with the Texas Rules of Civil Procedure. Within their second issue, they offer several challenges to the constitutionality of section 74.351, asserting violations of due process, the Open Courts provision of the Texas Constitution, and the doctrine of separation of powers.

ANALYSIS

A logical discussion of the issues raised in this appeal requires us to first address the Prestwoods' second point of error regarding the trial court's dismissal of their suit. Chapter 74 of the civil practice and remedies code provides that, in order to pursue a health care liability claim, a party must serve an expert report and the curriculum vitae of each expert listed in the report "not later than the 120th day after the date the original petition was filed." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2007). Furthermore, if an expert report is not filed within the 120-day period, 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. Id. § 74.351(b).

"If a claimant fails to serve the report with the curriculum vitae on or before the statutory deadline, and the affected physician or health care provider files a motion to dismiss the claim under section 74.351(b), the court has no alternative but to dismiss the claim with prejudice." Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 457 (Tex. App.--Austin 2006, no pet.).

Dismissal

The Prestwoods argue that the trial court erred in finding that section 74.351(b) of the civil practice and remedies code required dismissal of their suit for failure to serve an expert report and curriculum vitae within 120 days of the filing the original petition.

We review a trial court's ruling on a motion to dismiss under section 74.351(b) for an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001); Apodaca v. Russo, 228 S.W.3d 252, 254 (Tex. App.--Austin 2007, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.

It is undisputed that the Prestwoods' expert reports and curricula vitae were not filed within 120 days after their original petition was filed. The Prestwoods argue, however, that the rules of civil procedure require the addition of three days "to any period of time requiring a person to do some act, i.e., Appellants serving Appellee Defendant's counsel with the Expert Reports," thereby making their service of the reports on Dr. Settle timely. Whether the rules of civil procedure operate to extend the 120-day service period prescribed by the civil practice and remedies code is a matter of statutory construction, which we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

The Prestwoods assert that rule 21a, read in conjunction with rules 4, 8, and 21, requires the addition of three days to the computation of time under the 120-day service period of section 74.351. They argue that, once they were served by certified mail with Dr. Settle's answer, special exceptions, and responses to their requests for disclosure, "Defendant's counsel of record essentially gave notice to Plaintiffs . . . that any required service of any pleading or other instrument would necessitate service on Defendant's lead attorney of record." (5) This notice, the Prestwoods argue, "triggered the operation of Texas Rules of Civil Procedure 4, 8, 21 and particularly 21a, clearly mandating the addition of the additional three (3) day period of time within which Plaintiffs could do the act of serving the Expert Reports and corresponding curricula vitae on the Defendant."

Rule 21a of the rules of civil procedure governs methods of service. Tex. R. Civ. P. 21a. It states, in pertinent part:

Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon by mail or by telephonic document transfer, three days shall be added to the prescribed period.
Id. (6)

In this case, the Prestwoods maintain that they were a party "required to do some act within a prescribed period" because they were required to serve Dr. Settle with copies of their expert reports and curricula vitae within 120 days. Additionally, they argue that Dr. Settle's answer, special exceptions, and responses to requests for disclosure, served on them by certified mail, constituted a "notice or paper" that was served "by mail or by telephonic document transfer." Therefore, they contend, three days were required to have been added to the 120-day period.

In calculating what they argue is the correct deadline for serving the expert reports, the Prestwoods note that under rule 4, "Saturdays, Sundays and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a." See Tex. R. Civ. P. 4. Thus, the appropriate deadline under their formulation would have been Monday, December 4, 2006 (the date on which the Prestwoods actually served Dr. Settle with their expert reports and curricula vitae). (7)

In addressing the Prestwood's construction of rule 21a, we note that this Court has previously held that the rules of civil procedure are applicable to health care liability claims and that "the legislature intended for claimants to comply with Texas Rule of Civil Procedure 21a to fulfill the requirements of section 74.351(a)." See Herrera, 212 S.W.3d at 459. (8)

We are not persuaded, however, that when Dr. Settle served his answer, special exceptions, and responses to requests for disclosure on the Prestwoods, the additional-three-day provision in rule 21a was "triggered" in order to extend the Prestwoods' deadline for serving their expert reports. Under section 74.351, the reports became due 120 days after the Prestwoods filed their original petition, not 120 days after anything was served on them by the defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The service of the defendant's answer, special exceptions, and discovery responses therefore had no bearing on the statutorily determined time period for serving the expert reports. As the trial court explained during the hearing, "if you are going to extend the time period because you received . . . a document, then it must be a document, the receipt of which begins a time period."

We agree with the trial court's interpretation of rule 21a because even if the defendant's answer or discovery responses could be construed as a "notice or other paper" within the meaning of rule 21a, the service of these documents did not begin the 120-day time period mandated by section 74.351. Cf. Lee v. Palo Pinto County, 966 S.W.2d 83, 85-86 (Tex. App.--Eastland 1998, pet. denied) (summary-judgment movant was not "required to do some act within a prescribed period after the service of a notice" and therefore rule 21a did not require that three days be added to the prescribed period).

By its own terms, rule 21a applies when a party "is required to do some act within a prescribed period after the service of a notice or other paper upon him." Tex. R. Civ. P. 21a. It does not mandate the addition of three days whenever a party is required to act "within a prescribed period," but is in fact limited to only those situations where the party's action follows "after," or as a consequence of, "the service of a notice or other paper upon him." See, e.g., Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (rule 21a extends rule 166a's minimum-notice requirement for summary-judgment hearing by three days when motion is served by mail); Benger Builders, Inc. v. Business Credit Leasing, Inc., 764 S.W.2d 336, 337-38 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (rule 21a adds three days to timetable for responding to requests for admissions when party is served with requests by mail). Here, no time period was prescribed by the service of a notice upon the Prestwoods; rather, the 120-day period in question was triggered when the Prestwoods filed their original petition. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(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"). (9)

If section 74.351 had been drafted such that a claimant's 120-day period would begin to run once he is served with the defendant physician's answer, for example, then the Prestwoods might have a cognizable claim that rule 21a extends the deadline for serving the expert reports. But section 74.351 contains no such provision, and we decline to adopt an interpretation of rule 21a that would frustrate the legislature's clear mandate to make a claimant's expert reports due 120 days from the date he files his original petition. See Mokkala v. Mead, 178 S.W.3d 66, 74-76 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (discussing legislative history of section 74.351 and noting one purpose was to create "hard and fast deadline" for filing expert reports).

While parties are required to comply with the rules of civil procedure in health care liability suits, including rule 21a, see Herrera, 212 S.W.3d at 460, proper compliance is not achieved by judicially modifying chapter 74's mandatory service periods, as the Prestwoods would have us do under their interpretation of rule 21a. However, even if the Prestwoods were correct concerning the applicability of rule 21a's three-day provision, it is clear that, to the extent rule 21a conflicts with any of the requirements of chapter 74, the latter is controlling. See Tex. Civ. Prac. & Rem. Code Ann. § 74.002 ("In the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of the conflict.") (emphasis added). (10) By giving effect to the legislature's efforts to provide specific procedural rules applicable to health care liability suits in order to reduce the "excessive frequency and severity of health care liability claims," see Mokkola, 178 S.W.3d at 74, we do not "render meaningless" the rules of civil procedure.

In the alternative, the Prestwoods argue that section 74.351 is unconstitutionally overbroad and vague; they further allege that section 74.351 violates federal and state due process, the Open Courts provision of the Texas Constitution, and the doctrine of separation of powers. Parties asserting error on appeal must put forth some specific argument and analysis showing that the record and the law support their contentions. Because their brief merely states or quotes from the relevant constitutional provisions without providing any relevant authority or analysis, (11) the Prestwoods have failed to adequately brief their constitutional arguments, and we need not address them. See Tex. R. App. P. 38.1(h). (12)

We therefore hold that the trial court did not err in dismissing the Prestwoods' suit for failure to timely serve their expert reports and curricula vitae on Dr. Settle.

Attorney's fees

The Prestwoods complain that there was no evidence to support the attorney's fee award or, in the alternative, that the evidence was factually and legally insufficient to support the award. Citing Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997), the Prestwoods contend that there is no evidence or insufficient evidence to support a showing of the experience, reputation, and ability of counsel; the likelihood that the acceptance of the particular employment would preclude other employment by the lawyer; the fee customarily charged in the locality for similar service; the amount involved and the results obtained; the nature and extent of the relationship with the client; the nature and extent of the legal services provided; the novelty and difficulty of the questions presented; and the time limitations involved.

When a health care liability suit is dismissed for failure to timely serve the defendant with an expert report and curriculum vitae, the trial court "shall enter an order that awards to the affected physician or health care provider reasonable attorney's fees." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)(1) (West Supp. 2007). We review the trial court's award of attorney's fees after dismissal under section 74.351 for an abuse of discretion. See Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.--Houston [1st Dist.] 2003, pet. denied). In determining if the trial court abused its discretion, the appropriate test is whether the evidence in support of attorney's fees contained the attorney's qualifications, his opinion regarding reasonable attorney's fees, and the basis for his opinion. Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.--San Antonio 1999, pet. denied). When an attorney's testimony contains this necessary information, it constitutes "expert opinion testimony" and can sufficiently establish reasonable attorney's fees. See Enell Corp. v. Longoria, 834 S.W.2d 132, 135 (Tex. App.--San Antonio 1992, no writ); Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288 (Tex. App.--Houston [1st Dist.] 1992, no writ).

The Prestwoods, while listing a number of the factors the supreme court set forth in Arthur Anderson, specifically complain that Dr. Settle's counsel presented no time sheets during the hearing; that he "only estimated" the amount of time he spent preparing the motion, including the driving time between his San Antonio office and the Travis County courthouse; and that he gave conflicting testimony regarding the hourly rate he was charging, first insisting that a reasonable rate was between $180 and $250 per hour, and then admitting that he was only charging his client $175 per hour in this case. In arguing that the evidence was insufficient to support the mandatory attorney's fee award in this case, the Prestwoods intimate that Dr. Settle's attorney's testimony was "incredible" because it consisted of "incongruous sworn statements," amounting to only weak evidence or no evidence at all. We disagree.

Dr. Settle's attorney testified that he has been practicing law since 1980 and that he specializes in defending physicians and healthcare providers. He testified as to his familiarity with reasonable and necessary attorney's fees pertaining to health care liability suits and stated that "reasonable charges fall within about $180 an hour to $250 an hour." He further testified that attorney's fees of $1,000 were reasonable and necessary in this case, based upon the work he had actually performed, including the time he had spent commuting to Travis County, which he had used to practice his argument. He was questioned on cross-examination as to what rate he was charging his client in this matter, answering that his client was being charged $175 per hour.
Contrary to the Prestwoods' assertion, these statements are not undermined by contradiction, nor must they be "viewed as suspect and incredible." It is not within the province of this Court to interfere with the trial court's resolution of any conflicts in the evidence or to pass on the weight or credibility of the witnesses' testimony. See Benoit v. Wilson, 239 S.W.2d 792, 796 (Tex. 1951). Even when there is conflicting evidence, the fact-finder's verdict on such matters is generally conclusive. See Schneider v. Schneider, 5 S.W.3d 925, 930 (Tex. App.--Austin 1999, no pet.). In this case, the trial court found that an attorney's fee award of $800 was reasonable and justified based on the evidence that counsel for Dr. Settle had spent four hours on work related to the motion to dismiss; in light of the uncontroverted testimony that reasonable charges for physician-defense work fall between $175 and $250 per hour, the amount awarded in this case ($200 per hour) was supported by the evidence.

We therefore hold that the evidence Dr. Settle presented on attorney's fees would enable reasonable and fair-minded people to find that attorney's fees of $800 were reasonable and necessary. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (legal-sufficiency standard). We further hold that the evidence supporting the trial court's award of attorney's fees was not so weak as to make the court's finding clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (factual-sufficiency standard).

CONCLUSION

Because the trial court did not err in dismissing the Prestwoods' suit and awarding attorney's fees in favor of Dr. Settle, as mandated by section 74.341 of the civil practice and remedies code, we affirm the trial court's judgment.
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Affirmed

Filed: February 28, 2008

1. At the time the original petition was filed, the Prestwoods were acting pro se; they were represented by counsel as of the date of their first amended petition, which was filed December 4, 2006.
2. The expert report provides a summary of the expert's opinions regarding the 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) (West Supp. 2007).
3. The parties further acknowledge that the statutory date for service of the expert reports and curricula vitae was not extended pursuant to a written agreement. See id. § 74.351(a) ("The date for serving the report may be extended by written agreement of the affected parties.").
4. The Prestwoods' argument will be explained more fully in the discussion below.
5. There is no dispute that all of the Prestwoods' communications concerning the suit were required to be sent to Dr. Settle's counsel of record, pursuant to rule 8 of the rules of civil procedure. See Tex. R. Civ. P. 8 ("All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.").
6. Rule 21a further prescribes four authorized methods of service upon a party: (1) delivery in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; and (4) such other manner as the court in its discretion may direct. Tex. R. Civ. P. 21a.
7. Rule 21, which the Prestwoods also mention in their argument, provides that all pleadings, pleas, and motions must be served on all other parties and that an "application to the court for an order or notice of any hearing thereon . . . shall be served upon all other parties not less than three days before the time specified for the hearing." See Tex. R. Civ. P. 21. The Prestwoods do not explain the rule's relevance to this case, however, and we cannot discern how rule 21 has any impact on the requisite period for serving the expert reports.
8. In Herrera, the claimant had served the expert reports by regular mail, which is not one of the four methods of service authorized by rule 21a. See Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 458 (Tex. App.--Austin 2006, no pet.). We held that a party "who sends documents to another by regular mail--which is not authorized by rule 21a--does not comply with the 120-day service requirement in section 74.351." Id. at 459.
9. See also Mokkala v. Mead, 178 S.W.3d 66, 73 (Tex. App.--Houston [14th Dist.] 2005, no pet.) ("The plaintiff controls when she files a petition alleging a health care liability claim, thereby triggering the commencement of the 120-[day] period within which she must serve the expert report.").
10. See, e.g., Packard v. Miller, No. 07-06-0454-CV, 2007 Tex. App. LEXIS 4513, at *7 (Tex. App.--Amarillo May 31, 2007, pet. denied) (rule 21a's equitable extension-of-time provision did not apply to give trial court authority to enter order extending time to file expert report, because chapter 74 sets forth "exclusive means by which a trial court may grant an extension of time to file an expert report").
11. The Prestwoods' brief contains one string citation in a footnote quoting the standards by which courts review a vagueness challenge to a statute but offers no argument or authority suggesting that section 74.351 itself is unconstitutionally vague. Similarly, the Prestwoods cite two federal circuit cases and one treatise discussing the three-day rule contained in Federal Rule of Procedure 6(e) as authority for their due process argument, none of which addresses section 74.351. Finally, in arguing that the legislature "invaded the prerogatives of the judiciary, usurping unconstitutionally the power of the judiciary to apply the Texas Rules of Procedure," the Prestwoods cite generally a student note in a law review discussing statutory caps on medical-malpractice awards.
12. Even if we were to reach the Prestwoods' constitutional claims, it is clear that they have failed to raise a facial challenge to the constitutionality of section 74.351. See Herrera, 212 S.W.3d at 461 (to sustain facial challenge, party must show that statute, by its terms, always operates unconstitutionally, not merely assert that restrictions are arbitrary and unreasonable). With regard to the Prestwoods' due process challenge, the supreme court has held that dismissal of a suit due to the claimant's failure to file an expert report does not violate due process guarantees. See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) (applying former article 4590i). Likewise, with respect to their open-courts challenge, the Prestwoods have not produced any evidence that the requirements of section 74.351 have prevented them from pursuing their claim. See McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.--Austin 1999, pet. denied) (burden on claimant asserting open-courts violation is to provide sufficient evidence that expert-report requirement actually acted to keep her from pursuing claim). The Prestwoods have offered no reason why they failed to serve their reports within the 120-day period required by section 74.351, which this Court has described as a "minimal requirement." See id. at 453. Instead, the record indicates that the Prestwoods made no attempt to comply with the statute, and a claimant's failure to comply with the statute will not be interpreted by the reviewing court as evidence that it would have been impossible for him to do so. See id.

Third Court of Appeals rejects constitutional challenge to expert report filing requirement of statute governing medical malpractice claims in Texas

Cecelia Ledesma v. George L. Shashoua, M.D.; Oakwood Women's Cenre, P.A. at Round Rock; Joseph Eddings; B. Johns, CRNA; and Round Rock Medical Center, No.
(Tex.App. - Austin, Aug. 3, 2007)(Opinion by Justice Pemberton)(HCLC, expert report)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 277th District Court of Williamson County

THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 05-489-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING

MEMORANDUM OPINION BY JUSTICE PEMBERTON

Cecelia Ledesma appeals the district court's dismissal of her health care liability claim against Certified Registered Nurse Anesthetist, Bruce Johns, for failure to make an objective, good faith effort to timely serve an expert report that complies with the requirements in section 74.351 of the civil practices and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006). Ledesma argues that the district court erred in holding that the expert reports that she had served failed to comply with section 74.351 and by not allowing her a 30-day time extension to cure any deficiencies. Ledesma also asserts that chapter 74 of the civil practice and remedies code is unconstitutional. We affirm the district court's judgment.

BACKGROUND

In November 2001, Ledesma underwent surgery at Round Rock Medical Center to remove her right ovary and her appendix. She filed this lawsuit on January 14, 2004, against the hospital, her surgeon, his professional association, the anesthesiologist, and Johns, the certified registered nurse anesthetist, alleging in part that she suffered permanent injury to her left arm, hand, and wrist as a result of incorrect placement of the IV in her left forearm and improper placement and monitoring of her arm during the surgery. (1)

On May 14, 2004, Ledesma served Johns's counsel with four expert reports that purported to comply with the requirements of section 74.351(a). See id. § 74.351(a) ("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 . . . for each physician or health care provider against whom a liability claim is asserted."). The reports were prepared by the following experts: (1) Dr. Dinner, a board certified anesthesiologist; (2) Dr. Hamilton, a board certified obstetrician/gynecologist; (3) Stephanie Tate, a certified operating room nurse and certified legal nurse consultant; and (4) Thomas Sharon, a registered nurse certified in intravenous therapy.

On June 4, 2004, after Ledesma's 120-day deadline for serving her expert reports expired, Johns filed a motion to dismiss and sever the claims against him on the grounds that the expert reports did not satisfy the requirements of section 74.351. See id. § 74.351 (a)-(b), (l), (r)(6). In her response to the motion to dismiss, Ledesma asserted that the reports were adequate and alternatively, she asked the court to grant her a 30-day extension to cure any deficiencies. See id. § 74.351(c) ("If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency."). The district court granted Johns's motion to dismiss (but not his motion to sever) and dismissed all of Ledesma's claims against Johns. Johns subsequently filed a second motion to sever, which the district court granted, making the dismissal order regarding Johns final. Ledesma appeals from the orders dismissing and severing her claims against Johns.

DISCUSSION

Adequacy of the expert reports

In her first issue, Ledesma asserts that the district court erred in holding that the expert reports that she served failed to comply with section 74.351's requirements. The expert report or reports required under section 74.351(a) 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 meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6). A trial court must "grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply" with this definition of an expert report. Id. § 74.351(l).

To constitute a "good faith effort" the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 49, 52 (Tex. 2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Although an expert report "need not marshal all 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. It is not enough for the report merely to state the expert's conclusions about the statutory elements. Id. at 869. "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Bowie Mem'l Hosp., 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Because the statute dictates what is required in the report, the only information relevant to determining whether a report complies with the statute is that within "the four corners" of the report. 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. Bowie Mem'l Hosp., 79 S.W.3d at 53.

We review a trial court's decision to dismiss a health care liability claim under section 74.351 for an abuse of discretion. Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

With these principles in mind, we review the four expert reports that Ledesma furnished in connection with her suit.

Dr. Dinner's report

Dr. Dinner, a board certified anesthesiologist, begins his report by recounting his qualifications and professional experience and states "By virtue of my training in anesthesiology, . . . as well as 20 years of experience in the operating room, I am very familiar with the circumstances and standards of care relevant to the proceedings in this case." He then summarizes Ledesma's medical history and describes the injuries that appeared after her November 2001 surgery. He notes that, while in the post anesthesia care unit, Ledesma "complained of numbness and discomfort in her left wrist" that was later diagnosed as "a radial nerve palsy."

Dr. Dinner then concludes:

By virtue of the fact that Ms. Ledesma had no previous complaints of left arm pain or paresthesia on 11/01/01 yet left the hospital with a significant injury to that extremity, it is without question that this damage was sustained during the course of her perioperative period. It is my position that the injury could only have occurred as a consequence of improper and traumatic placement and inappropriate positioning and/or restraining of the extremity.
Dr. Dinner observes that Ledesma complained about "significant pain at the intravenous site" upon initiation of the intravenous line. He notes:

The individual who placed the line has the responsibility to do so in a manner which will not cause trauma to the surrounding tissues. A portion of the superficial branch of the radial nerve runs through the location where the intravenous line was placed and as such, was "speared" by the sharp stylet that serves as an introducer for the angiocath. This mechanism of injury is fully consistent with the post operative diagnosis of tenosynovitis and myositis and the MRI findings point to injury in the area of the corresponding muscle. Customarily, the individual who places the intravenous line is identified in the medical record and places a note at the time positioned. No such note is in the chart. . . . It was essential that the clinician performing this procedure possess the necessary skill to carry this out properly. This was not the case in this situation and the individual who established the iv access was negligent in the performance of their duties by causing severe trauma to the branch of the radial nerve in that location. Had the individual who started the intravenous line acted in a more cautious, skillful and appropriate manner in keeping with the standard of care, it is more likely than not that the injury that Ms. Ledesma sustained would not have occurred.

Dr. Dinner next addresses the actions of the anesthesia team:

I have also carefully reviewed the actions of the anesthesia team in this case from the preoperative assessment all the way through to the post operative recovery course[.] The patient was in the lithotomy position with her legs restrained in stirrups and both arms placed on arm boards at acute angles to the body axis. The anesthesia team consisting of Dr. Joseph Eddings and Bruce Johns CRNA together with the nurses including but not limited to the circulating nurse and scrub nurse as well as the surgeon, Dr. Shashoua, had a duty to ensure the safety of the padding, restraint, placement, and positioning of the patients arms armboard, and restraints prior to and during the procedure. Every health care provider in the surgical suite owed a duty of care to Ms. Ledesma to ensure her safety during the procedure due to the administration of the anesthesia, which would prevent the patient from protecting herself with protective reflexes. The healthcare provider placing the restraints failed to document the manner in which the patients extremities were restrained or placed on the board. The standard of care requires such documentation in the patient's records. Therefore there was a violation in the standard of care with respect to documentation. The injury is consistent with improper placement, bad positioning, inattentive application of pressure on the patient's arm during the procedure, or restraints being placed too tightly and restricting the blood flow in this area. It would violate the standard of care for any healthcare provider in the surgical suite to fail to notice, address, and document any such occurrence.

Dr. Dinner concludes:

Based upon reasonable medical probability, this injury occurred due to improper IV placement, poor technique in IV placement, or improper placement, bad positioning, inattentive application of pressure on the arm, or restraints being improperly placed so that they we[r]e too constrictive. The occurrence of any one or more of these events would violate the standard of care for patient safety during anesthesia. Dr. Joseph Eddings as the anesthesiologist, Bruce Johns, CRNA, the surgeon, Dr. Shashoua, and the nurses and employees of Round Rock Medical Center owed a duty of care to Ms. Ledesma for patient safety in the above regard during anesthesia. The radial nerve palsy would not have occurred but for the negligence and violations of the standard of care applicable to each of these healthcare providers.

Dr. Hamilton's report

Ledesma's second expert report was prepared by Dr. Hamilton, a board certified obstetrician and gynecologist. Most of Dr. Hamilton's report focuses on Ledesma's allegations that her obstetrician, Dr. Shashoua, misdiagnosed the cause of her abdominal pain and performed unnecessary surgeries. Dr. Hamilton opines that:

[Dr. Shashoua] and Dr. Wexler, the surgeon who performed the appendectomy, were negligent in not insuring proper positioning of the patient on the operating table. It was their negligence along with that of Dr. Joseph Eddings MD, the anesthesiologist, and Bruce Johns, Certified Registered Nurse Anesthetist, that produced a severe inexcusable injury to the radial nerve in Mrs. Ledesma's left arm.

Nurse Sharon's report

Ledesma's third expert report was prepared by Thomas Sharon, a registered nurse licensed to practice in Florida. Nurse Sharon describes his qualifications as follows:
During the past twenty-five years, I have worked as a staff nurse, nursing supervisor, nursing educator in various hospitals and as a chief executive officer of a corporate provider of nursing services. . . .

I am experienced and familiar with the standard of care ordinarily exercised by nurses in hospitals. I am specifically experienced and familiar with the degree and skill of care exercised by nurses in hospital operating suites or free standing surgical centers with regard to the duties and responsibilities of the circulating nurse during the intraoperative phase of surgery.
Nurse Sharon then lists the medical records and reports he reviewed and states:
[I]t is my opinion with a reasonable degree of professional certainty that the circulating nurse on duty in the operating room departed from good and accepted standards of nursing practice in failing to prevent prolonged pressure against the left radial nerve plexus during surgery.
The circulating nurse owed a duty to the patient to check the patient's body position, body alignment and application of positioning devices such as arm boards to assure that bony
prominences and nerve bundles are not pressurized during surgery.

* * *
It should be noted that use of the arm board was part of the plan to prevent injury related to surgical intervention. When using the arm boards the circulating nurse or anesthetist usually wraps adhesive tape around the upper and lower arm and under the arm board in order to keep it in place. During the surgery, the circulating nurse must frequently check the t[a]pe to make certain that it is not too tight. The tape must never be applied around the wrist or elbow joints and these are the two places most susceptible to nerve damage if the tape is applied too tightly or becomes tighter later on due to peripheral edema (swelling). Therefore it is my opinion with a reasonable degree of professional certainty that the improper application of the arm board and failure to check the left upper extremity were the proximate cause of the radial palsy of the left wrist and hand.

* * *
It is my opinion with a reasonable degree of professional certainty that the radial nerve compression injury was caused by taping the left wrist to the arm board so as to cause compression entrapment of the radial nerve plexus. The circumferential taping of the wrist to an arm board is contraindicated because of the proximity of the radial nerve near the skin surface. Even if another staff member taped the wrist, it was incumbent upon the circulating nurse to insist that the tape be removed from the wrist and that the arm board be secured by taping over the mid forearm or the hand (if the wrist needed to be immobilized). Furthermore, the circulating nurse also owed a duty to the patient to check the hand and wrist at frequent intervals to make certain that the circumferential tape was not causing pressure and was not interfering with peripheral blood flow.

Nurse Tate's report

Ledesma's fourth expert report was prepared by Stephanie Tate, an operating room nurse clinician and legal nurse consultant. Nurse Tate explains her qualifications as follows:
I am currently licensed to practice Registered Nursing in the state of California. . . . I have been practicing operating room nursing since 1981, and I scrub and circulate all specialties including trauma. I am familiar with the standards of care relevant to the facts of this case.
Nurse Tate then discusses the standard of care that the circulating nurses owed to Ledesma with respect to the placement of the IV:

Each circulating RN had a responsibility to actively advocate for Ms. Ledesma. Whichever one brought her to the room had the responsibility to conduct a pre-op assessment and interview, document and address any concerns Ms. Ledesma verbalized about pain at her IV site, document her assessment of the IV site and what interventions were undertaken to troubleshoot the problem as well as provide pain relief and document to whose attention the matter was directed. None of this was done, in spite of the fact the fact that Ms. Ledesma is adamant that she complained about pain at her IV site as soon as it was started. This is in violation of basic nursing fundamentals, AORN [Association of Perioperative Registered Nurses] Recommended Principals and Practices, and ANA [American Nurses Association] Standards. . . .
Nurse Tate next discusses the standard of care that circulating nurses owe with respect to the positioning of the patient during surgery:

The circulating nurses also had professional responsibilities involving patient positioning and patient safety, according to AORN. I have attached the 2001 AORN Standards of Care addressing the perioperative nurse's responsibility in patient positioning. I will quote an excerpt from the standard here:

Standard of Care (per AORN:)

The circulating RN (perioperative nurse) is the surgical patient's advocate, and is responsible for ensuring patient safety while under his or her care. The perioperative nurse should actively participate in safety and appropriately positioning the patient, continuously monitoring body alignment and tissue integrity based on sound physiologic principals, and communicating specific patient needs to the rest of the surgical team.

* * *
Once the surgical team is scrubbed in, it is an ongoing responsibility of both the circulating RN (or RNs) and anesthesia to continually check--and document--the patient's extremities and potential pressure points after changes in positioning.
Although anesthesia documented "all pressure points checked and padded" at the beginning of the procedure, it is likely that her position was changed after intubation, perhaps more than once. The documentation concerning positioning on the part of the circulating RNs is minimal; in fact it is limited to the anatomical diagram of the patient, and is unclear. The perioperative (circulating) RN's responsibilities include documenting both the positioning and type of padding used intraoperatively, as well.

The fact that the anesthesia provider documented "all pressure points checked and padded" does not exempt the circulating RN from his or her own responsibility for accurate and thorough documentation. The type of padding use, and the specific sites where it was placed, should have been documented in the intraoperative nursing notes. The fact that it is not documented is in violation of 2001 AORN standards of care addressing the perioperative (circulating) RN's responsibility in documenting perioperative nursing care, as well as the ANA Code for Nurses with Interpretive Statements, with Explications for Perioperative Nursing. This states, in part, that the perioperative (circulating) RN is required to "Complete operative records accurately and in an objective and non-judgmental manner" and "Maintain records in an orderly manner."

* * *
This continuous lack of nursing documentation in the medical record violates the standard of care and resulted in harm to the patient. The complaint of pain should have been addressed and reported to the surgeon and the anesthesiologist before the start of the surgery to rule out IV access as the cause of this injury. Also, in 2001, nurses were required by JCAHO (and still are) to assess and document patients' complaints of pain on a scale of 1 to 10--10 being the most severe. This was not done and violates the standard of care for pain assessment.

Analysis

We conclude that the district court did not abuse its discretion in holding that these four expert reports did not satisfy the requirements of section 74.351 with respect to Johns. The expert reports prepared by Nurse Tate and Nurse Sharon are inadequate because they fail to identify Johns at all. Both nurse reports address generally the standard of care applicable to registered nurses or circulating nurses, of which Johns is neither. "We have held that where the identity of a defendant is not explicitly mentioned within the 'four corners' of the report, the report is, for that reason alone, deficient as to that defendant because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining." Bogar v. Esparza, ___ S.W.3d ___, ___ No. 03-07-00037-CV, 2007 Tex. App. LEXIS 5088, at *19 (Tex. App.--Austin June 28, 2007, no pet. h.) (citing Austin Heart, P.A. v. Webb, ___ S.W.3d ___, ___; No. 03-06-00607-CV, 2007 Tex. App. LEXIS 3600, at *15 (Tex. App.--Austin May 9, 2007, no pet. h.); Apodaca v. Russo, ___ S.W.3d ___, ___ No. 03-06-00258-CV, 2007 Tex. App. LEXIS 3467, at *13 (Tex. App.--Austin May 2, 2007, no pet. h.)). Furthermore, the nurse reports are inadequate to satisfy the causation element of section 74.351(r)(6) because only a qualified physician can render expert opinion testimony regarding the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability claim. See Tex. Civ. Prac. & Rem. Code. Ann. § 74.351(r)(5)(C).

The two expert reports that do mention Johns--Dr. Dinner's report and Dr. Hamilton's report--do not sufficiently identify the standard of care applicable to Johns or explain how Johns breached that standard. Dr. Dinner's report broadly states that the entire surgical team including Johns "had a duty to ensure the safety of the padding, restraint, placement, and positioning of the patients arms armboard, and restraints prior to and during the procedure" and that "[e]very health care provider in the surgical suite owed a duty of care to Ms. Ledesma to ensure her safety during the procedure," but Dr. Dinner does not explain what Johns, as the CRNA, should have done differently to provide for Ledesma's safety. See Palacios, 46 S.W.3d at 879-80 (conclusory statement that "precautions to prevent [patient's] fall were not properly utilized" did not sufficiently apprise physician whether expert believed that the standard of care required him "to have monitored [the patient] more closely, restrained him more securely, or done something else entirely"). Likewise, the statements in Dr. Hamilton's report that Dr. Shashoua and Dr. Wexler "were negligent in not insuring proper positioning of the patient on the operating table" and that "[i]t was their negligence along with that of Dr. Joseph Eddings MD, the anesthesiologist, and Bruce Johns, Certified Registered Nurse Anesthetist, that produced a severe inexcusable injury to the radial nerve in Mrs. Ledesma's left arm" do not identify the standard of care applicable to Johns. See id. at 880 (statement that restraints to prevent fall were not properly used is not a statement of the standard of care).

Having reviewed the four expert reports, we conclude that the district court could have reasonably concluded that the reports do not represent an objective good faith effort to comply with the definition of an expert report in section 74.351(r)(6).

Extension of time under 74.351(c)

Ledesma also argues that the trial court erred by not granting her request for a 30-day extension of time to cure any deficiencies in her expert reports. Section 74.351(c) states that if elements of an expert report are found to be deficient, "the court may grant one 30-day extension to the claimant in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). The extension allowed under 74.351(c) is discretionary, not mandatory. See Bogar, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 5088, at *9; Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *19-20. Nothing in the record indicates that the district court acted arbitrarily or unreasonably in exercising its discretion not to allow Ledesma a 30-day extension to cure the deficiencies in her report. We overrule Ledesma's second issue.

Constitutional challenges to chapter 74

Ledesma argues that chapter 74 is unconstitutional, citing summarily to the due process and equal protection guarantees of the federal and state constitutions, as well as the open courts provisions of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 13. She contends that the requirements of chapter 74, particularly the expert report requirement in section 75.351 and the restriction on the application of the doctrine of res ipsa loquitur in section 74.201 constitute arbitrary and unreasonable restrictions on her claim.

When reviewing the constitutionality of a statute, we begin with a presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66, (Tex. 2003); see also Tex. Gov't Code Ann. § 311.021(1) (West 2005). The wisdom or expediency of the law is the legislature's prerogative, not ours. Texas Workers Comp. Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995). The party challenging a statute's constitutionality has the burden of proving that the statute fails to meet constitutional requirements. Walker, 111 S.W.3d at 66.

In challenging the constitutionality of a statute, a party may show that the statute is unconstitutional on its face or as applied to that party. Garcia, 893 S.W.2d at 518 n.16; see also City of Corpus Christi v. Public Util. Comm'n of Tex., 51 S.W.3d 231, 240-41, (Tex. 2001) (Owen, J., concurring). To sustain a facial challenge, the party must show that the statute, by its terms, always operates unconstitutionally. Id. To sustain an "as applied" challenge, the party must show that the statute is unconstitutional when applied to that particular person or set of facts. Id.

Here, Ledesma did not cite any authority or make any argument that would support a facial challenge to the constitutionality of chapter 74. She merely asserts that the restrictions section 74.351 imposes on claimants are "unreasonable and/or arbitrary." Because Ledesma failed to demonstrate that chapter 74 always operates unconstitutionally, her challenge to the statute as facially unconstitutional is not persuasive.

Ledesma did challenge the constitutionality of section 74.351, as applied to her, asserting that the requirements of section 74.351 constitute an arbitrary and unreasonable restriction on her claim in violation of her constitutional rights to equal protection, due process, and open courts. With regard to Ledesma's due process challenge, the supreme court has held that the dismissal of a suit due to a claimant's failure to file a compliant expert report does not violate due process guarantees, even in the absence of notice of the report's noncompliance before the motion to dismiss. Walker, 111 S.W.3d at 66 (applying former article 4590i). The court reasoned that due process does not require "prior notice that the law is serious about a clearly stated consequence." Id.

Ledesma's open courts argument is equally misguided. A claimant who brings an open courts challenge has the burden of showing that the expert-report requirements actually prevented her from pursuing her claims. McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex. App.--Austin 1999, pet. denied). The open courts provision is premised upon the rationale that the legislature has no power to make a remedy by due course of law contingent upon an "impossible condition." Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990). Ledesma has not proven how the provisions of the section 74.351 itself, as opposed to her own failure to provide an adequate report, prevented her from pursing her claim against Johns. See Marquez v. Providence Mem'l Hosp., 57 S.W.3d 585, 595 (Tex. App.--El Paso 2001, pet. denied).

CONCLUSION

We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: August 3, 2007

1. Ledesma also alleged that the surgery was unnecessary and the result of a misdiagnosis of her abdominal pain. These claims do not pertain to Johns.

Pro se IFP and inmate status don't bode well for success in civil suit

Patrick Earl Conely v. Brackenridge Hospital; Cynthia Brinson, M.D.; Martha Wear; Kelli Ward; William Gray; Texas Board of Criminal Justice; Mark Roth; Julito Uy; Joella Puenta; Theresa Hend, No. , (Tex.App.- Austin, Jul. 31, 2007)(Opinion by Justice Pemberton)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 98th District Court of Travis County - Affirmed

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-05-002092, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

MEMORANDUM OPINION BY JUSTICE BOB PEMBERTON

Patrick Earl Conely, an inmate at a state correctional facility, filed a pro se, in forma pauperis lawsuit asserting health care liability and section 1983 claims against Brackenridge Hospital and Cynthia Brinson, M.D. Conely also asserted various claims against the Texas Board of Criminal Justice (TBCJ) and numerous individual prison officials (collectively, the State Defendants). (1)

Conely's claims centered on allegations that the defendants acted wrongfully in connection with a claimed medical condition. On November 7, 2005, in separate orders, the district court dismissed Conely's health care liability claims against Brackenridge Hospital and Dr. Brinson for failure to provide an expert report as required by section 74.351 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)-(b) (West Supp. 2006).

During the following week, the district court granted the State Defendants' motion to dismiss Conely's claims against them for failure to comply with chapter 14 of the civil practice and remedies code. See id. §§ 14.001-.014 (West 2002). Subsequently, Brackenridge and Dr. Brinson obtained summary judgment as to the section 1983 claims against them. The district court's order stated that Conely shall "take nothing on any claims by way of his suit against Defendant Brackenridge Hospital and Defendant Cynthia Brinson, M.D." and that it "finally disposes of all parties and claims and is appealable."

Conely has appealed from two of these orders--the district court's dismissal of his health care liability claim against Dr. Brinson under chapter 74 of the civil practice and remedies code and its dismissal of his claims against the State Defendants under chapter 14, both of which were made final by the summary judgment. (2) Although his briefing also mentions Brackenridge and other matters beyond the scope of his appeal, we are without jurisdiction to consider them.

DISCUSSION

Chapter 74 claims

Within 120 days of filing a health care liability claim, a claimant must file an expert report, with a curriculum vitae of each expert listed in the report "against each physician or health care provider against whom a liability claim is asserted." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If a timely expert report is not served as to a defendant physician or health care provider, the trial court must dismiss the claim as to the physician or healthcare provider, with prejudice. Id. § 74.351(b). We review a trial court's dismissal of a health care liability claim for failure to timely produce an expert report for an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

Conely filed his petition asserting health care liability claims again Dr. Brinson and Brackenridge Hospital on June 15, 2005. Thus, under section 74.351(a), he had until October 13, 2005 to serve the requisite expert reports. He wholly failed to do so. Section 74.351(b) mandates the dismissal of health care liability claims when no timely expert report is filed with respect to a defendant physician or health care provider. Tex. Civ. Prac. & Rem. Code § 74.351(b). The district court here had no discretion to do otherwise. Although subsection (c) authorizes trial courts to grant one thirty-day extension when "elements of the report are found deficient," here Conely did not timely serve any report. Id. § 74.351(c). And, while Conely did file a motion for extension of time on November 4--after the 120-day deadline had passed--he did not obtain the written agreement of the defendants. Id. § 74.351(a).

As Conely did not file the requisite expert reports within the 120-day deadline, and there was no written agreement to extend the deadline, the district court had no discretion but to dismiss the claims. Accordingly, the district court did not abuse its discretion in dismissing Conely's health care liability claims against Dr. Brinson. (3)

Chapter 14

Chapter 14 of the civil practices and remedies code applies to a suit, such as Conely's, brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. Tex. Civ. Prac. & Rem. Code Ann. § 14.002. In their motion to dismiss, the State Defendants argued that Conely failed to comply with several provisions of chapter 14, including section 14.004, which requires that an inmate litigant file an affidavit or unsworn declaration identifying and describing each pro se suit, other than a suit under the family code, previously brought by the inmate. See id. § 14.004(a). The affidavit required under section 14.004 must describe each suit by stating the operative facts for which relief was sought, listing the case name, cause number, and the court in which the suit was brought, identifying each party named in the suit, and stating the result of the suit. Id. § 14.004(a)(2). We review a trial court's dismissal of a claim under chapter 14 for abuse of discretion. McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex. App.--Houston [14th Dist.] 1998, no pet); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ).

We have reviewed the record in this case and we find that Conely's affidavit was insufficient to meet the requirements of section 14.004. While Conely did list eight previous filings, he did not state the operative facts upon which relief was sought or identify all the parties to each suit. Furthermore, the State Defendants' motion to dismiss revealed several suits that Conely failed to include in his affidavit. When an inmate's affidavit does not comply with the requirements in section 14.004, the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate and therefore frivolous. Bell v. Texas Dep't of Crim. Justice--Institutional Div., 962 S.W.2d 156, 158 (Tex. App.--Houston [14th Dist.] 1998, pet denied). Accordingly, we hold that the trial court did not err in dismissing Conely's claims against the State Defendants under chapter 14.

Motions for appointment of counsel and bench warrant

In connection with the above issues, Conely also argues that the district court abused its discretion by failing to rule on his motion for appointment of counsel and motion for a bench warrant. Under rule 33.1(a)(2) of the rules of appellate procedure, in order to present a complaint for appellate review, the record must show that the trial court "(A) ruled on the request, objection or motion, either expressly or implicitly; or (B) refused to rule . . . and the complaining party objected to the refusal." Tex. R. App. P. 33.1(a)(2). Here, by proceeding to rule on the defendants' dispositive motions without appointing Conely counsel or issuing a bench warrant, it is clear that the district court implicitly denied Conely's requests. See In the Interest of Z. L. T.,124 S.W.3d 163, 165 (Tex. 2003) (concluding that trial court implicitly denied inmate's request for bench warrant by proceeding to trial without issuing bench warrant). Therefore, we will proceed to review whether the district court abused its discretion in denying Conely's motions.

Section 24.016 of the government code gives a district judge discretion to appoint counsel for an indigent party in a civil case. Tex. Gov't Code Ann. § 24.016 (West 2004). "Some courts of appeals . . . have concluded that the discretionary boundary of section 24.016 is similar to a court's inherent power to appoint counsel--counsel may be appointed in cases in which exceptional circumstances exist." Gibson v. Tolbert, 102 S.W.3d 710, 712-713 (Tex. 2003). Here, Conely has not demonstrated exceptional circumstances that would necessitate the appointment of counsel. See Gibson, 102 S.W.3d at 713 (holding that trial court did not abuse its discretion by failing to appoint counsel to represent inmate in medical malpractice suit against prison doctor because inmate suits against prison officials are common).

Similarly, the court did not abuse its discretion in implicitly denying Conely's motion for a bench warrant. Although inmates cannot be denied access to the courts simply because they are inmates, a prisoner does not have an absolute right to appear in person in every court proceeding. In the Interest of Z. L. T., 124 S.W.3d at 165. "[T]he inmate's right of access to the courts must be weighed against the protection of our correctional system's integrity." Id. In deciding whether to grant an inmate's request for a bench warrant, courts consider several factors, including: the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's claims are substantial; whether the matter's resolution can reasonably be delayed until the prisoner's release; whether the prisoner can and will offer admissible, noncumulative testimony that, cannot be effectively presented by deposition, telephone, or some other means; whether the prisoner's presence is important in judging his demeanor and credibility; and the prisoner's probability of success on the merits. Id. at 165-66. The inmate bears the burden of showing how his interest in appearing in court outweighs the impact on the correctional system. Id. at 166.

motions to dismiss is necessary in order to "produce documentary evidence and challenge the documentary evidence advanced by Defendant Brinson and Brackenridge Hospital." However, any evidence that Conely wished to produce could have been submitted by affidavit or attached in documents to his pleadings. The district court did not abuse its discretion in denying Conely's motion for a bench warrant.

CONCLUSION

We affirm the district court's judgments of dismissal.
_________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: July 31, 2007

1. These prison officials, and their designation or identification in the pleadings, are: "grievance investigators" Kelli Ward, William Gray, and Mark Roth; "assistant regional director" Martha Wear; "prison guards/grievance officers" Cynthia Harrell, Joella Puenta, and Gilbert Herrera; "physician assistant" Jolita Uy; "counsel substitute" Julie Pacheco; and "discipline hearing officer" Theresa Hendrick.
The record also reflects that Conely attempted to name but never served various Travis County personnel.

2. Specifically, Conely has filed two notices of appeal. On November 29, following the dismissal of his health care liability claims, Conely filed a notice of appeal. It stated:
On November 23, 2005 I received notice from Defendant Brinson['s] Attorney that my claim against her was dismissed. For this reason, I here by give notice of appeal--Please refer [to] the complete (motions, pleadings, judgments, statement of facts) and or any other pertinent information on file in relation to the above number cause to the court of appeals to enable the plaintiff to perfect an appeal.
Although the dismissal order was not yet final, we consider this notice effective immediately after the final summary judgment. Tex. R. App. P. 27.1. Similarly, Conely's second notice of appeal, filed December 13 and addressed solely to the State Defendants, is deemed effective at the same time. Id.
Conely did not supplement or amend his November 29 appeal notice after Dr. Brinson obtained final summary judgment. We conclude that his appeal against Dr. Brinson is limited solely to the subject matter of his initial notice.
As Brackenridge observes, Conely did not mention the district court's separate order dismissing his claims against it in his November 29 appeal notice, and his only other appeal notice is addressed to the State Defendants. We conclude that Conely has not perfected an appeal against Brackenridge. Alternatively, Conely's failure to serve an expert report concerning Brackenridge under chapter 74 of the civil practice and remedies code is dispositive of any appeal he perfected against that entity.

3. The same analysis would apply to Conely's health care liability claim against Brackenridge.

Deficient Expert Report Spells Death for Another Malpractice Suit - Court of Appeals Affirms Dismissal

Charles Ly v. Sara Austin, M.D., and Kent Ellington, M.D,
No. (Tex.App.- Austin, Jul. 13, 2007)(Opinion by Justice Pemberton)
Appeal from 250th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. GN501313, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION BY PEMBEERTON

Charles Ly appeals from the district court's dismissal of his health care liability claims against Drs. Sara Austin and Kent Ellington (Defendants) for failure to furnish an expert report that complied with the requirements of section 13.01 of the Medical Liability and Insurance Improvement Act (the Act). See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. (1) Ly asserts that the district court erred in holding that the reports he had furnished failed to comply with section 13.01 and refusing to grant him an additional 30-day grace period to cure any defects. We affirm.

BACKGROUND

On June 1, 2001, Ly sued Dr. Austin, Dr. Ellington, Seton Medical Center, and three other individual physicians alleging negligence "during the course of medical treatment provided by the above named Defendants . . . beginning on or about March 8, 1999 through March 14, 1999." Defendants are both board-certified neurologists who provided care to Ly during or immediately after he "fell just outside a restaurant" and was taken by ambulance to the Seton emergency room for treatment. Ly alleges that he came under the care of Dr. Austin and other physicians, "who treated him for a diagnosis of stroke." A "CT-Scan was taken and interpreted" by one of the other physicians. Ly "was given the drug Heparin, which was ordered by" Dr. Austin and another physician. Finally, Ly alleged that he was "eventually moved to the hospital floor," where he was treated "for stroke and various other ailments" by Dr. Ellington and another physician. During the course of this treatment, Ly "fell from his hospital bed and severely injured his left arm."

On August 20, 2001, Ly served on the defendants an expert report prepared by Dr. Suzanne E. Page, M.D., with her curriculum vitae attached. See id. art. 4590i, § 13.01(d)(1) ("Not later than the later of the 180th day after the date on which a health care liability claim is filed . . . the claimant shall . . . furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report."). Various of the defendants, including Defendants, filed motions to dismiss Ly's claim for failure to furnish a proper expert report. See id. art. 4590i, § 13.01(e).

The procedural history of the case thereafter was complicated by delays related to the withdrawal of Ly's counsel and his difficulties in obtaining replacement counsel. Of relevance here, after granting Ly a 30-day extension, id. art. 4590i, § 13.01(g), the district court granted Defendants' first amended motions to dismiss and denied Ly a second 30-day extension. (2) The court later severed out Ly's claims against Defendants, making its dismissal order regarding Defendants final. Ly appeals from this order.

DISCUSSION

On appeal, Ly contends that the district court erred in holding that Dr. Page's report failed to comply with section 13.01 of article 4590i and in refusing to grant him a second 30-day extension. (3)

In holding that Dr. Page's reports failed to comply with article 4590i, section 13.01, the district court relied on the two grounds raised in Defendants' dismissal motions: Dr. Page's report (1) failed to establish that she was an "expert" qualified to testify concerning the matters stated in her report; and (2) lacked a fair summary of her opinions regarding the applicable standard of care, its alleged breach by Defendants, or the causal relationship between the alleged breach and the claimed harm. Id. art. 4590i, § 13.01(r)(5), (6).

To comply with the requirements of section 13.01(d), an "expert report" first must be a "written report by an expert." Id. art. 4590i, § 13.01(r)(6) (emphasis added). Section 13.01(r)(5) defines "expert" to require that a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care be qualified under section 14.01(a). See id. art. 4590i, § 13.01(r)(5)(A). Section 14.01(a) requires:

In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Id. art. 4590i, § 14.01(a).

In determining whether the expert is qualified on the basis of training or experience, the court is to consider whether, at the time the claim arose or the testimony is given, the witness is board-certified or has other substantial training or experience in an area of practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. art. 4590i, § 14.01(c). Furthermore, "the report itself must establish the expert's qualifications on the basis of training and experience." In re Samonte, 163 S.W.3d 229, 234 (Tex. App.--El Paso 2005, orig. proceeding). In other words, "the only information relevant to the inquiry is within the four corners of the document." American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert's curriculum vitae is considered part of the report. In re Windisch, 138 S.W.3d 507, 511 (Tex. App.--Amarillo 2004, orig. proceeding).

An "expert report" must also "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 meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). A court must grant a motion challenging the adequacy of an expert report under subsection (r)(6) only if the report "does not represent an objective good faith effort to comply" with this definition of "expert report." Id. art. 4590i, § 13.01(l).

To constitute a "good faith effort," the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct that the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Palacios, 46 S.W.3d at 879 (Tex. 2001). Although a report need not marshal all of a claimant's proof, it must include the expert's opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878. It is not enough for the report merely to 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., 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Again, because the statute dictates what is required in the report, the only information relevant to determining whether a report complies with the statute is that within "the four corners" of the report. 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. Bowie Mem'l Hosp., 79 S.W.3d at 53.

We review a trial court's ruling to dismiss a suit under article 4590i, section 13.01 for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

In her first amended report, Dr. Page described her qualifications as follows:

I am a duly licensed and practicing Board Certified Physician. I have been actively practicing Physical Medicine and Rehabilitation approximately twelve years. . . .

I have examined the medical records pertaining to Charles Ly with a view toward determining whether or not the medical care on the part of any of the physicians departed from the accepted standards of medical care and whether any such departure had a causal relationship between the injury and damage resulting from care by Dr. Sara Austin, Dr. Kent Ellington, Dr. Albert Horn, Dr. Rodney Schmidt, and Seton Hospital. . . .
. . . .
I have knowledge of the accepted standards of care that are applicable to the physicians in this matter for the diagnosis, care, and treatment of the illness, injury, or condition involved in this case, as reflected by the above listed records that I examined. Care of patients with strokes comprises approximately 20% of my practice.

Dr. Page then proceeded to opine "that the medical care provided by the above doctors and hospitals failed to meet the applicable standard of care" in the following regards:
. . . .

2) There is research indicating no benefit in giving ASA vs Heparin in stroke patients and complications of bleeding are higher with heparin in the case of hemorrhage. In regard to Mr. Ly's case, the standard of care should have been to not give Heparin in view of Mr. Ly's "improving" status in the Emergency Room and CT scan of the brain with bleeding. Dr. Sara Austin should have ordered an MRI of the brain as recommended by the radiologist in his report and/or get results of the CT scan of the brain done on 2/1999 to compare before deciding whether or not to give Heparin. Furthermore, Dr. Austin should have explained the risks vs. the benefits of Heparin to Mr. Ly.

3) Dr. Kent Ellington's failure to manage antihypertensive medication appropriately. This caused Mr. Ly's blood pressure to fluctuate. This is critical for the stroke patient to prevent complications. The standard of care for someone with hypertension and stroke is to maintain the blood pressure high enough to allow adequate cerebral perfusion. There should have been a parameter to hold the antihypertensive medication if the systolic blood pressure dropped below a certain value. Dr. Ellington did not order this, causing Mr. Ly's blood pressure to drop and therefore impeding the blood flow to his already injured brain.
. . . .
5) Failure to recognize the risk of fall in this patient. The doctors, nurses and therapists should all have recognized Mr. Ly's high risk for a fall. Doctors are trained to know that a patient with a stroke in Mr. Ly's location, would have left neglect, and significant impulsivity. Both of these medical problems significantly increase the risk for falls. . . . The fall caused a fracture in his clavical. This caused significant pain. Mr. Ly was unable to participate in therapy for a time secondary to the pain.

It is further my opinion that had the above-mentioned doctors met the applicable standard of care, Charles Ly would have had less residual neurologic deficits from his stroke, better function, and less pain. It is my opinion that the failure of the above-mentioned doctors and hospital to meet the applicable standard of care was a cause of increased pain, lower cognitive ability, and worsened function.

Dr. Page's attached curriculum vitae indicates that she is board-certified in physical medicine
and rehabilitation, or physiatry, and independent medical examination, and has what appears to be considerable experience and training in these practice areas. The district court also had before it a supplement or addendum to Dr. Page's report in which she stated the following:

RE: Questions about my training to read CT scans of the brain.

To Whom It May Concern.

Two of the three most common rehabilitation diagnoses that a physiatrist manages are stroke and brain injury. Reviewing basic CT scans of the brain was part of my training as a medical student. Reviewing many CT scans of the brain with detailed evaluations with attendings in both rehabilitation and radiology was part of my training as a resident. Continued work reading CT scans of the brain is a very important part of my work as an attending now. Many rehabilitation units are separate from acute care hospitals, and there is no radiologist available to read CTs immediately. Therefore, when CT scans of the brain or MRIs of the brain are done on a more emergent basis, copies of the images are brought to me at the rehabilitation unit for my reading.

We conclude that the district court did not abuse its discretion in concluding that Dr. Page failed to establish her qualifications to give opinion testimony regarding the standard of care applicable to Drs. Austin and Ellington and their alleged breaches of it.

Every licensed doctor is not automatically qualified to testify as an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). On the other hand, the fact that an expert is not a specialist in the particular branch of the profession for which the testimony is offered will not automatically disqualify her as an expert. Hagedorn v. Tisdale, 73 S.W.3d 341, 349 (Tex. App.--Amarillo 2002, no pet.); Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.--Houston [14th Dist.] 1999, no pet.). "What is required is that the offering party establish that the expert has 'knowledge, skill, experience, training, or education' regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Broders, 924 S.W.2d at 153.

Dr. Page's reports do not satisfy this requirement. Her first amended report establishes that, at most, Dr. Page has experience caring for patients who have suffered strokes, likely in a rehabilitation setting. Her addendum addresses only her qualifications regarding the reading of CT scans, and apparently responded to the dismissal motion of another physician whom Ly had alleged negligently misinterpreted his CT scan and failed to diagnose a cerebral hemorrhage. This training and experience does not relate to the specific issues concerning Drs. Austin and Ellington--the duties of care applicable to neurologists in providing emergency care services to a patient who had just suffered a stroke. Ly alleges that Dr. Austin rendered emergency room care to Ly and that Dr. Ellington attended to Ly's needs immediately following his transfer from the emergency room. There is no allegation that either doctor provided Ly treatment beyond that initial period of emergency and post-emergency care. The fact that, during "approximately 20%" of her rehabilitation practice, Dr. Page cares for patients who have suffered strokes does not automatically qualify her to give an expert opinion on the standard of care for doctors treating an emergent or post-emergent stroke patient in an acute care hospital setting. See Hagedorn, 73 S.W.3d at 350 (in suit against emergency room physician, absence of any experience in emergency medical care precluded finding that expert was qualified).

Additionally, the report provides no information about the type of care that Dr. Page provides to her stroke patients. From the statement in Dr. Page's report that she practices "Physical Medicine and Rehabilitation," the district court could reasonably infer that the care involves some sort of rehabilitation, but beyond that, the report is silent. An expert cannot rely on generalized, conclusory statements to establish her qualifications; she must provide specific details of her training and experience. See, e.g., Forrest v. Danielson, 77 S.W.3d 842, 848 (Tex. App.--Tyler 2002, no pet.) (report must establish that expert is familiar with specific medical procedure that was subject of lawsuit); Tomasi v. Liao, 63 S.W.3d 62, 66 (Tex. App.--San Antonio 2001, no pet.) (report must "provide detailed information regarding the extent of this experience and whether this experience was relevant to . . . the specific issue before the court.").
Furthermore, although it is readily apparent from Dr. Page's curriculum vitae that she is a specialist in rehabilitative care, there is no indication in her resume that she has any experience in providing emergency care to her patients, other than a vague reference in her supplement to her interpretation of CT scans on an "emergent basis." The specific issue before the district court was the standard of care applicable to neurologists providing emergency care immediately following a stroke, and the report failed to establish Dr. Page's qualifications in that regard. Therefore, we hold that the district court did not abuse its discretion in dismissing Ly's claim for failure to comply with section 13.01(r)(5).

We likewise conclude that the district court did not abuse its discretion in finding that Dr. Page's report failed to comply with section 13.01(r)(6). Among other things, Dr. Page does not explain the causal link between Dr. Austin's prescription of Heparin and Ly's increased pain, loss of cognitive ability, and worsened function, nor does it explain when Dr. Ellington should have ordered withholding of antihypertensive medication or whether, in fact, Ly's blood pressure dropped below the point where adequate cerebral perfusion was not possible.

Finally, we conclude that the district court did not abuse its discretion in granting Defendants' motion to dismiss and refusing to grant Ly a 30-day grace period. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). "[A] section 13.01(g) grace period determination is reviewed under an abuse of discretion standard." Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). "Section 13.01(g) requires a trial court to grant a grace period if, after hearing, 'the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake.'" Id. (quoting Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g)). Although some mistakes of law may negate a finding of intentional conduct or conscious indifference, entitling the claimant to a grace period under section 13.01(g), not every act of a defendant that could be characterized as a mistake of law is a sufficient excuse. Id. at 64. "In determining whether the failure to file adequate reports was due not to intentional disregard or conscious indifference but to accident or mistake, we must look to the knowledge and acts of the claimant." Id.

"[A] party who files suit on claims subject to article 4590i is charged with knowledge of the statute and its requirements." (4) Id. In an affidavit filed with the district court in response to one of the motions to dismiss, Ly's former attorney stated that, "[a]t the time of filing of the expert reports and now," he believed that their content complied with "the applicable law regarding art. 4590i expert reports." The attorney further believed that Dr. Suzanne Page was qualified. However, the supreme court has held that a mere "belief" that a report complies with the statutory requirements does not establish a "sufficient excuse" necessary to support a finding that a party made a mistake of law, nor does it negate a finding of "intentional or conscious indifference." Id. at 64-65.

We note that by the time the district court heard Defendants' amended dismissal motion, it had previously granted Ly one extension under section 13.01(g), and had earlier delayed adjudicating other dispositive matters in the case due to Ly's difficulties in obtaining replacement counsel. Even before the district court granted him a 30-day extension, Ly had filed one amended report plus a supplement, but had not availed himself of the opportunity to further amend or supplement Dr. Page's reports to address Defendants' challenges to their adequacy. (5) We cannot conclude that the district court abused its discretion in finding that Ly's failure to comply with section 13.01 was intentional or the result of conscious indifference and in denying an additional grace period under section 13.01(g).

We overrule Ly's issues on appeal.

CONCLUSION

We affirm the judgment of the district court.
_____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed

Filed: July 13, 2007

1. Because Ly's claim was filed before September 1, 2003, it is governed by former article 4590i. See 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. Ann. 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 Ann. § 74.351 (West Supp. 2006)).

2. The district court's order stated: True and correct copies of the motions were served on all parties to this lawsuit; This suit is being prosecuted under TEX. REV. CIV. STAT. ANN. art. 4590i . . . and was commenced after September 1, 1995, thus bringing this lawsuit under § 13.01 of that article; More than 180 days have elapsed since the date this action was commenced; Plaintiff failed to furnish counsel for Defendants a proper expert report pursuant to TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(r)(5) and (6); A previous extension was granted by the Court pursuant to art. 4590i, § 13.01(g) . . . at least 30 days before the hearing; Plaintiff's second Motion for Extension filed pursuant to art. 4590i, § 13.01(g) . . . should be denied; thus, Defendants' motions should in all things be GRANTED.

3. Although Ly succeeded in obtaining new counsel who vigorously opposed dismissal in district court, Ly is acting pro se on appeal. Perhaps for this reason, his issues on appeal are not explicitly or clearly defined, although we can discern that he principally intends to challenge the two grounds on which the district court held Dr. Page's report inadequate and its refusal to grant him a second 30-day extension. To the extent that Ly is attempting to raise other issues, we hold that they were inadequately briefed and thus waived. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (pro se litigants not exempt from rules of procedure).

4. The supreme court noted that "even a pro se litigant would be charged with knowledge of the statute and compliance with its requirements." Walker v. Gutierrez, 111 S.W.3d 56, 65 n.2 (Tex. 2003). We note this only because it appears from the record that Ly's first counsel withdrew at some point after the original expert report was filed, and that Ly was not represented by counsel when he filed his amended expert report. However, by the time the district court granted Ly a 30-day grace period, and throughout the remainder of the proceedings until this appeal, Ly was again represented by counsel.

5. The extension appears to have served primarily to cure a timeliness problem with Dr. Page's supplement, which was not served until after the expiration of the 210th day after suit was filed.