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.

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.

Malpractice Suit Dismissed Because of Deficient Expert Report

Zavala v. Pinkerton, DDS, No. (Tex.App.- Austin, Jul. 10, 2007)(Law)(HCLC)
DISMISSAL AFFIRMED: Opinion by Chief Justice Law
Before Chief Justice Law, Justices Patterson and Puryear

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 2000-0898, HONORABLE GARY L. STEEL, JUDGE PRESIDING

MEMORANDUM OPINION BY CHIEF JUSTICE KENNETH LAW

In this appeal, we must decide whether the trial court properly dismissed a dental malpractice claim based on the claimant's failure to serve an adequate expert report in compliance with the former Medical Liability and Insurance Improvement Act ("article 4590i"). (1) In her sole issue, appellant Rose Marie Zavala argues that the trial court abused its discretion by dismissing her suit against appellees, Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S., as her expert's report represented a good-faith effort to comply with statutory requirements.

Because the report lacked a causal link explaining how the dentists' alleged breach of the standard of care brought about Zavala's claimed injuries, we conclude that the trial court did not abuse its discretion by granting the motion to dismiss. See art. 4590i, § 13.01(l). Accordingly, we affirm the trial court's order of dismissal.

BACKGROUND

The record shows that Zavala brought this health care liability claim against Pinkerton and Bandy for injuries she claimed to have sustained as a result of the extraction of her wisdom teeth. She filed a timely report and curriculum vitae from her expert, Dr. John K. Jones, in support of her claim. See id. § 13.01(d)(1).

Pinkerton and Bandy filed a motion to dismiss Zavala's suit because Jones's report lacked any reference to the required element of causation. See id. § 13.01(r)(6). Zavala responded that an incorrect draft of the report had been submitted due to a legal assistant's error and requested a thirty-day extension to comply with section 13.01(d). Zavala supported her claim of mistake with affidavits from her attorney and the legal assistant who made the error. After a hearing, the trial court granted the requested extension, (2) and Zavala filed her expert's amended report. See id. § 13.01(g). The amended report's reference to causation consisted of the following sentence: "In my opinion, these departures from the standards of care are contributing causes to the harm and injuries experienced by Rose Marie Zavala."

Believing that the expert's report was still inadequate because of its cursory reference to causation, Pinkerton and Bandy filed another motion to dismiss. Zavala argued that she had complied with section 13.01(d) and alternatively, that she should receive another thirty-day extension because any inadequacy in her expert's report was not due to intentional disregard or conscious indifference but to accident or mistake. This time, the response containing Zavala's assertion of accident or mistake was not supported with an affidavit or any facts.

When the court heard the dentists' motion to dismiss on November 23, 2004, Zavala produced a third report from Jones. His report elaborated on the standard of care and Zavala's injuries. It also stated that departures from the standard of care were "contributing causes" of Zavala's injuries, but it did not offer any explanation about how any breach of the standard of care caused Zavala's injuries. After the trial court accepted Jones's third report, Pinkerton and Bandy filed an amended motion to dismiss, and the parties provided the court with additional briefing.
The trial court granted Pinkerton and Bandy's motion to dismiss Zavala's claim for failure to file an adequate expert report. See id. § 13.01(l). Zavala filed a timely motion for new trial that was overruled by operation of law. This appeal followed.

DISCUSSION

Standard of review

We review a trial court's decision to dismiss a claim for failure to comply with section 13.01(d)'s expert-report requirements under an abuse of discretion standard. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 58, 52 (Tex. 2002). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court. Id. Our analysis of the adequacy of the expert's report under section 13.01(l) is limited to the four corners of the report. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006).

Adequacy of expert's report

Section 13.01(d)(1) requires that, within 180 days after filing a health care liability claim, a claimant must furnish counsel for each defendant physician and health care provider with an expert report. Id. at 93 (citing art. 4590i § 13.01(d)(1)). Although the expert's report need not marshal "every bit" of the claimant's evidence, it must provide a fair summary of the expert's opinions concerning the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. (citing art. 4590i, § 13.01(r)(6)).

If a claimant timely files an expert report, and a defendant moves to dismiss the claim because of the report's inadequacy, the trial court must grant the motion "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section [13.01]." Wright, 79 S.W.3d at 51 (citing art. 4590i §13.01(l)).

Here, the parties do not dispute that the standard of care and the alleged breaches of the standard of care are summarized fairly in Jones's third report. It states that Pinkerton and Bandy should have:

(1) advised of the risks regarding temporomandibular disorders after surgery;
(2) diagnosed and treated or referred for treatment of facial pain, trismus, and possible temporomandibular disorder after surgery;
(3) halted procedure at patient's request after the first of two planned extractions; and
(4) provided mandibular support during procedure.

By failing to take the above actions, Jones's report opines that Pinkerton and Bandy breached the standard of care.

The parties' dispute is whether Jones's report constitutes a good-faith effort to provide a fair summary of the expert's opinions concerning the causal relationship between the breaches of the standard of care and Zavala's injuries. See art. 4590i, § 13.01(l), (r)(6).

Regarding the element of causation, Jones's report stated, "In my opinion, these departures from the standards of care are contributing causes to the chronic facial pain, internal derangement of the right and left temporomandibular joints and other harm and injuries experienced by Rose Marie Zavala." Causation is not discussed in any other manner.

Zavala argues that Jones's report provides a fair summary of his opinions on the standard of care, breach and causation. She also argues that article 4590i does not require her to prove her lawsuit through an expert report. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) ("[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits."). Pinkerton and Bandy contend that the single sentence in the report addressing causation was an insufficient conclusion, not an explanation.

To constitute a good-faith effort, the report must "discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question, and to provide a basis for the trial court to conclude that the claims have merit." Jernigan, 195 S.W.3d at 93 (quoting Palacios, 46 S.W.3d at 875).

A report cannot merely state the expert's conclusions about the standard of care, breach, and causal relationship. Wright, 79 S.W.3d at 52. Instead, "the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

The issue in this case concerns whether the third report explained Jones's conclusions about Zavala's injuries by linking them to facts that would have allowed the trial court to determine that the malpractice claims had merit. A report that merely states the expert's conclusions about causation will not assist the trial court in making that determination. See Palacios, 46 S.W.3d at 879.

The Texas Supreme Court considered the adequacy of an expert's report with regard to the element of causation in Bowie Memorial Hospital v. Wright. The report at issue in Wright opined that the hospital should have had a system for reviewing x-rays and if it had, the claimant "would have had the possibility of a better outcome." 70 S.W.3d at 50-51. The court concluded that the report lacked information linking the expert's conclusion to the alleged breach because it simply opined that the claimant might have had a better outcome without explaining how the hospital's conduct caused injury to her. Id. at 53. It stated, "We cannot infer from this statement, as the Wrights ask us to, that Bowie's alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather, the report must include the required information within its four corners." Id. Thus, the court concluded that the trial court did not abuse its discretion in dismissing the medical malpractice claim because the report failed to offer any basis for determining the claim's merit (the latter part of the Palacios test) by failing to provide a fair summary of the expert's opinion on causation. Id.

Courts in Dallas and San Antonio have reached the same conclusion about reports with similar deficiencies concerning the element of causation. See Rose v. Garland Cmty. Hosp., 168 S.W.3d 352, 357 (Tex. App.--Dallas 2005, no pet.) (concluding that report was inadequate because it did not link alleged negligent credentialing and claimant's injuries); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.--San Antonio 2004, no pet.) (concluding that report was inadequate because it failed to explain what "more timely triage and evaluation" would have revealed, what treatment would have been available, whether decedent was a candidate for that unknown treatment, or whether that unknown treatment would have been effective); see also Davis v. Markey, No. 03-04-00455-CV, 2005 Tex. App. LEXIS 2185, at *12-14 (Tex. App.--Austin Mar. 24, 2005, pet. denied) (mem. op.) (concluding that report was inadequate because it did not contain any factual information linking physicians' alleged failures to "be vigilant in the postoperative period," to properly analyze material aspirated from claimant's knee, and to "over-ream," to conclusion that claimant would have "lifetime of disability").

Jones's third report in this case--similar to the reports in Wright, Rose, and Costello--lacks a causal link explaining how the dentists' alleged breaches of the standard of care brought about Zavala's injuries. The entirety of the discussion on causation in Jones's report is confined to a single sentence stating that, in his opinion, Pinkerton and Bandy's departures from the standard of care were "contributing causes" to Zavala's injuries. The report fails to explain how the purported breaches by the dentists caused the injuries that Zavala claims.

For instance, although the report alleges that Zavala's extraction procedure required mandibular support and that Pinkerton and Bandy did not provide it, it omits any explanation about how the failure to provide mandibular support caused Zavala's injuries or how providing that support would have prevented them. It simply concludes that the failure to do so was a contributing cause of her injuries. Because Jones's report lacked information as to causation, it did not provide a basis for the trial court to conclude that Zavala's claims had merit. Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d at 875. Based on this omission, the trial court could have reasonably determined that the third report did not represent a good-faith effort to summarize the causal relationship between Pinkerton and Bandy's alleged departures from the standard of care and Zavala's claimed injuries. See Bowie, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 880.

We conclude that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6). See art. 4590i, § 13.01(l). Accordingly, we overrule Zavala's sole issue.

CONCLUSION

Having concluded that the trial court did not abuse its discretion by granting Pinkerton and Bandy's motion to dismiss based on Zavala's failure to furnish an expert report that met the requirements of section 13.01(r)(6), we affirm the trial court's order of dismissal.

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: July 10, 2007

1. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995 Tex. Gen. Laws 985, 987, repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, sec. 74.351(l), 10.09, 2003 Tex. Gen. Laws 847, 876, 884 (effective September 1, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006)). Because Zavala filed suit before September 1, 2003, article 4590i applies to her claim.

2. After the February 15, 2001 hearing, there was some delay in the entry of this order. The reporter's record states that the court entered the order on November 23, 2004, during a subsequent hearing on the motion to dismiss, but the order was not included in the clerk's record.

----------------
Full style: Rose Marie Zavala v. Kenneth Pinkerton, D.D.S. and Donald Bandy, D.D.S. (Tex.App. - Austin, July 10, 2007)(trial court's dismissal of HCLC affirmed due to insufficient expert report)
Appeal from 22nd District Court of Hays County

Mark Bogar, M.D. v. Dolores Esparza (Tex.App.-Austin, Jun. 28, 2007)

Dr. Med. Mark Bogar, M.D. v. Esparza (Tex.App.-Austin, Jun. 28, 2007)(Pemberton)

REVERSED AND REMANDED: Opinion by Justice Bob Pemberton
Before Justices Patterson, Pemberton and Waldrop

Mark D. Bogar, M.D. v. Dolores G. Esparza, Individually and as Administrator of the Estate of Katherine G. Guerrero, Deceased; Fernando Guerrero; Sofia G. Butschy; Gilberto Guerrero; Antonio Guerrero; Rosie G. Garza; Benito Guerrero; Josey G. Selvera and Frances G. Faz
Appeal from Probate Court No. 1 of Travis County

FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY, NO. 82,917-A,
HONORABLE GUY S. HERMAN, JUDGE PRESIDING

OPINION BY JUSTICE PEMBERTON

We again address issues arising from the expert report requirements of section 74.351 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2006). Appellant Mark D. Bogar, M. D. appeals the probate court's denial of his motion to dismiss appellees' health care liability claim for failure to make an objective, good faith effort to timely serve an expert report that complies with subsections 74.351(a) and (r)(6). The three issues presented here concern: (1) our subject matter jurisdiction over Dr. Bogar's interlocutory appeal; (2) whether the report appellees served complied with section 74.351's requirements; and, if not, (3) the appropriate appellate remedy. We conclude that we have jurisdiction over Dr. Bogar's interlocutory appeal and that the controlling law and "four corners" of appellees' report leave us no alternative but to reverse and render judgment dismissing appellees' claim and awarding attorney's fees and costs. See id. § 74.351(b). We remand to the probate court to determine the amount of attorney's fees to which Dr. Bogar is entitled. See Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex. App.--San Antonio 2006, no pet.); Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex. App.--Dallas 2006, pet. denied).

BACKGROUND

Appellees sued Dr. Bogar and Healthsouth on May 1, 2006, alleging negligence in connection with medical care provided to Katherine R. Guerrero by Dr. Bogar and the "agents, servants, employees, representatives, and staff" of Healthsouth Rehabilitation Hospital of Austin between December 28, 2004, and January 12, 2005, when Ms. Guerrero died. Appellees alleged that following surgery, Ms. Guerrero was placed under the care of Dr. Bogar and Healthsouth and, in the course of her rehabilitative treatment, was given a fatal overdose of pharmaceutical products. Appellees pleaded that an autopsy report from the Travis County Medical Examiner concluded that Ms. Guerrero "died as a result of an overdose of oxycodone and propoxyphene."
On or around June 6, 2006, Appellees served on Dr. Bogar and Healthsouth an expert report prepared by Dr. Jesse Adame that purported to comply with the requirement of subsection 74.351(a). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) ("In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim 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."). Both defendants timely filed objections to the sufficiency of Dr. Adame's report. See id. ("Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived."). Each defendant contended that Dr. Adame's report failed to satisfy the statutory definition of an "expert report" by failing to provide a fair summary of the expert's opinions regarding applicable standards of care, the manner in which the care rendered by each defendant failed to meet the standards, and the causal relationship between such failure and Ms. Guerrero's death. See id. § 74.351(a), (l), (r)(6). Further, Dr. Bogar urged that Dr. Adame, a pathologist, had failed to demonstrate that he was an "expert" qualified to render opinions concerning the standards of care applicable to Dr. Bogar, a physical medicine rehabilitation physician. See id. § 74.351(r)(5), §74.401 (West 2005).

Subsequently, after appellees' 120-day deadline for serving their expert reports expired, see id. § 74.351(a), Dr. Bogar and Healthsouth filed a joint motion seeking dismissal with prejudice, attorney's fees and costs for failure to file an expert report complying with section 74.351. See id. § 74.351(b). Dr. Bogar later filed an amended motion to dismiss adding his earlier challenge to Dr. Adame's qualifications. On January 10, 2007, the probate court denied the dismissal motions. Both Dr. Bogar and Healthsouth timely filed notices of interlocutory appeal. In the interim, Healthsouth settled with appellees. We accordingly address only the appellate issues presented by Dr. Bogar.

ANALYSIS

In a single issue, Dr. Bogar argues that the probate court abused its discretion in denying his motion to dismiss and request for attorney's fees and costs. In addition to disputing the merits of this contention, appellees have filed a motion to dismiss Dr. Bogar's interlocutory appeal for want of jurisdiction, contending that no statute authorizes him to appeal the order he seeks to challenge.

Jurisdiction

Appellate courts generally have subject matter jurisdiction only over appeals from final judgments and have jurisdiction over appeals of interlocutory orders only when that authority is explicitly granted by statute. Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex. App.--Austin 2005, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998)). Section 51.014(a) of the civil practice and remedies code authorizes an interlocutory appeal from two types of orders regarding expert reports under chapter 74. First, an interlocutory appeal may be taken from an order that "denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351(c)." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2006). Second, an interlocutory appeal may be taken from an order that "grants relief sought by a motion under Section 74.351(l)." Id. § 51.014(a)(10).

Appellees assert that the order from which Dr. Bogar seeks to appeal is neither of these. They suggest that "the relief sought by a motion under Section 74.351(b)" is available only where a claimant has failed to timely file an instrument purporting to be an "expert report" by the 120-day deadline of subsection (a), not when a purported "expert report" is timely filed but is found to be deficient. See id. § 74.351(b) ("If . . . an expert report has not been served within the period specified by Subsection (a) . . . ."). Here, appellees maintain, there is no dispute that "the expert report of Dr. Adame was served within the required period of time." Appellees further assert that challenges to the sufficiency of expert reports, as contrasted with timeliness, are governed exclusively by section 74.351(l). Section 74.351(l) states that "[a] court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(l). Because Dr. Bogar's motion, in appellees' view, is "a motion under section 74.351(l)," they assert that his right of interlocutory appeal is controlled by section 51.014(a)(10) rather than (a)(9), and no appeal is available from the probate court's order denying him relief. See id. § 51.014(a)(10) (permitting appeal from an order that "grants relief sought by a motion under Section 74.351(l)") (emphasis added). They equate this case to Academy of Oriental Medicine, L.L.C. v. Andra, where we held that an order denying a motion challenging the sufficiency of an expert report was governed by section 74.351(l) rather than section 74.351(b) and that "[b]ecause this appeal challenges an order that is neither an order denying the relief sought by a motion under § 74.351(b) nor one granting relief sought by a motion under § 74.351(l), we lack jurisdiction to hear it." 173 S.W.3d at 186-89.

We disagree with appellees' readings of section 74.351 and Andra. Under section 74.351(b), as we have recently reiterated, an "expert report has not been served within the period specified by Subsection (a)" not only if it is untimely (or never) served, but also if the purported timely filed "expert report" is deficient with respect to its required contents. See Austin Heart P.A. v. Webb, ___ S.W.3d ___, ___; No. 03-06-00607-CV, 2007 Tex. App. LEXIS 3600, at *19 (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 *13-14 (Tex. App.--Austin May 2, 2007, no pet. h.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61 (Tex. 2003) (dismissal under former article 4590i warranted for "failure to comply" with report deadline by either failure to file or failure to file adequate report). This conclusion is apparent from the text and structure of section 74.351. Subsection (a) requires the claimant to file one or more "expert reports" not later than the 120th day after the date the original petition was filed, and subsection (b) mandates sanctions "[i]f, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a)." "Expert report" is defined within section 74.351 as: "a written report by an expert that provides 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. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see id. § 74.351(r)(5) (definition of "expert"). Thus, if the instrument does not comply with subsection (r)'s "expert report" definition, it does not satisfy the claimant's requirement under subsection (a) and exposes the claimant to potential sanctions under (b).

Consistent with this construction, subsection (c) of section 74.351 contemplates that noncompliance with the subsection (r) "expert report" definition renders a purported "expert report" not "served" for purposes of subsection (a) and (b). Subsection (c) provides that "[i]f an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient," the trial court is afforded discretion to grant a single 30-day extension "in order to cure the deficiency." Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (emphases added). Subsection (c), as we will later discuss, is an exception to subsection (b)'s sanctions requirement in cases where "an expert report has not been served within the period specified by Subsection (a)" because the report is deficient, and applies to a subset of such cases. Id. § 74.351(b).

Contrary to appellees' suggestions, section 74.351(l) does not create a distinct procedure for challenging the sufficiency of expert reports that is mutually exclusive of motions seeking sanctions under subsection (b). Subsection (l) establishes a standard of proof for any motion challenging the sufficiency of an expert report: whether the report represents "an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(l). A motion challenging the sufficiency of an expert report, section 74.351 contemplates, may be made either before or after the expiration of the 120-day deadline in subsection (a). If made after the deadline passes, the defendant may assert the insufficiency of the report as grounds for sanctions under subsection (b), subject to subsection (c), for the claimant's failure to "serve" an "expert report" within the 120-day period. If the motion is made before the 120-day deadline--as may be necessitated by subsection (a)'s 21-day deadline to file and serve any objection to the sufficiency of a purported "expert report," id. § 74.351(a)--the defendant cannot yet seek sanctions under subsection (b) because the claimant could still serve a proper "expert report" "within the period specified by Subsection (a)." Id. § 74.351(b). With this type of motion, unlike a motion seeking subsection (b) sanctions, the relief available, as we observed in Andra, "is not so clearly enumerated," but would appear to contemplate a declaration of the report's insufficiency or the striking of it. 173 S.W.3d at 187.

In Andra, we also pointed out that for purposes of the interlocutory appeals available under section 51.014(a)(9) and (10), in effect "[a] motion challenging the adequacy of an expert report that does not request the relief set out in section 74.351(b) is a motion for relief under 74.351(l)." Id. We held that the motion in question was governed exclusively by subsection (l), and thus subject to section 51.014(a)(10), because it had been filed before the claimant's 120-day deadline had expired and had not requested the sanctions of dismissal or attorney's fees characteristic of section 74.351(b) motions. See id. at 186-89. However, we acknowledged that "where there is no timely expert report because the report or reports were found deficient," an interlocutory appeal would be available "when the court had denied a defendant's motion [under 74.351(b)] but had not granted the plaintiff additional time to cure deficiencies." Id. at 184 n.7 (emphasis added).

Here, Dr. Bogar filed objections to the sufficiency of Dr. Adame's report within 21 days of service, see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), and a motion, after the 120-day deadline had expired, explicitly invoking subsection (b) and asserting that the probate court should dismiss appellees' claim against him with prejudice and award attorney's fees and costs for failure to file a proper "expert report" by the deadline. See id. § 74.351(b). The probate court denied that motion without granting an 30-day extension. Id. § 74.351(b), (c). That order "denies all or part of the relief sought by a motion under Section 74.351(b)," and we have subject matter jurisdiction to adjudicate Dr. Bogar's appeal from that order. Id. § 51.014(a)(9); see Andra, 173 S.W.3d at 186-87. We accordingly deny appellees' motion to dismiss Dr. Bogar's appeal.

Sufficiency of Dr. Adame's report

We turn now to Dr. Bogar's issue. In his motion for sanctions under section 74.351(b), Dr. Bogar asserted that (1) Dr. Adame's report was insufficient under the "expert report" definition of section 74.351(r)(6), and (2) Dr. Adame, as a pathologist, was not qualified as an expert to evaluate Dr. Bogar's performance as a rehabilitative medicine specialist. We agree with the former contention and need not reach the latter.

As noted above, the "expert report" or reports that a health care liability claimant must serve under section 74.351(a) must provide "a fair summary of the expert's opinion as of the date of the report 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). A trial court, again, must grant a motion challenging the adequacy of a report only if the report "does not represent an objective good faith effort to comply" with this definition of "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. Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *4 (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 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 section 74.351. Id. at *4-5 (citing 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. (citing Palacios, 46 S.W.3d at 379). "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Id. at *5 (quoting Bowie Mem'l, 79 S.W.3d at 52) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)).

Importantly, 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. Id. (citing 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." Id. (citing Bowie Mem'l, 79 S.W.3d at 53).

We review a trial court's ruling on a section 74.351(b) motion under an abuse of discretion standard. 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).

The document prepared by Dr. Adame recites his qualifications and concludes that "I am qualified based on my education, training and experience to offer an expert opinion regarding the cause and mechanism of death of Mrs. Katherine Ramirez Guerrero. As a pathologist, I am familiar with the standard of care required of physicians not to prescribe drugs either alone or in combination that will cause a fatal overdose." "Such conduct," Dr. Adame adds, "falls below the standard of care required of physicians."

Dr. Adame then lists the medical records and other materials he had reviewed, and summarizes Ms. Guerrero's medical history. Dr. Adame notes that Ms. Guerrero was 76 years of age, and had a "past medical history of hyperlipidemia, osteoarthritis, poorly controlled hypertension, and chronic dizziness." He recounts that Ms. Guerrero had complained of left hip pain following a December 25, 2004 fall and had been "admitted to Seton/Brackenridge Hospital after is was determined that she had a nondisplaced fracture of the left femur," but "[i]t was also determined at that time, that no surgical intervention was needed." Adame then states:
Her medical problems and rehabilitation were managed by HealthSouth Rehabilitation Hospital of Austin. She was transferred to that facility on December 28, 2004. She was placed on a Duragesic patch at 25 mcg on December 29, 2004. It was increased to 50 mcg on December 30, 2004 because of continued significant pain. She was also given her usual home medications including Doxepin, Norvasc, Zescril, Tenormin, and Imdur. Because of significant drowsiness with the Duragesic patch, her dose was reduced back to 25 mcg. She was also given Protonix for gastrointestinal prophylaxis. Despite a fairly stable hospital course, her pain increased. On January 7, 2005, after her records were reviewed and she was cleared for surgery, she was taken to the operating room at Seton/Brackenridge Hospital for open reduction and internal fixation of her left femur. Her surgery went well and she was transferred back to HealthSouth Rehabilitation Hospital of Austin on January 8, 2005. She resumed her medical regimen along with physical and occupational therapy. Her pain persisted and she was taken off of Duragesic patch post surgery. OxyContin was added to her therapy, initially at 10 mg and later increased to 20 mg. She had bouts of constipation and loose stool which was medically managed. On January 12, 2005 at 9:34 p.m. she experienced cardiopulmonary arrest. Despite cardiopulmonary resuscitation until 10:13 p.m., she was pronounced dead.

Dr. Adame then summarizes the "significant findings" of the autopsy report from the Travis County Medical Examiner's Office, including "the conclusions . . . that Mrs. Guerrero died as a result of an overdose of oxycodone and propoxyphene."

Adame then states his "opinions and conclusions." He begins: "I concur with the autopsy conclusions." He observes that the medical examiners "performed a complete autopsy with toxocological analysis of blood, vitreous humor, and urine," and references certain autopsy findings. Dr. Adame describes the composition and effect of oxycodone and propoxyphene as various dosing levels, including the levels indicative of toxicity and death. Drawing on these observations, he states the following:

Mrs. Guerrero had postmortem blood oxycodone concentration of 0.25 mg/L. This level and the clinical findings of nausea and labored breathing (noted in nursing notes shortly before her death) indicates that the oxycodone was inducing respiratory depression.

* * *

Mrs. Guerrero had postmortem blood propoxyphene levels of 1.0 mg/L. This concentration of propoxyphene and the clinical findings of nausea, labored breathing, and cardiac arrest (noted in nursing notes shortly before her death) indicates that the propoxyphene was inducing respiratory depression, cardiac arrhythmia, and circulatory collapse and subsequent death. In addition, the respiratory depression was exacerbated by the high concentrations of oxycodone (see above).

Dr. Adame then concludes:

In summary, Mrs. Guerrero had toxic levels of oxycodone along with lethal levels of propoxyphene which caused her demise. The mechanism of death was respiratory depression, cardiac arrhythmia, and circulatory collapse. Additionally, autopsy examination failed to demonstrate an anatomic cause of death.

All of my opinions above are predicated upon a reasonable medical probability.

Dr. Adame's report fails to comply with the requirements of section 74.351. Most notably, it does not identify the person or persons whose conduct is the subject of any of his opinions regarding standard of care, causation, and death. 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. Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *15; Apodaca, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3467, at *13; see Marichalar, 198 S.W.3d at 255. The report likewise fails to explain, among other things, how Dr. Bogar breached any standard of care or how that alleged breach caused Ms. Guerrero's death. See Jernigan v. Langley, 195 S.W.3d 91, 93-94 (Tex. 2006) (affirming dismissal under former article 4590i where report made only "passing mention" of defendant physician and failed to state how he breached the standard of care or how his alleged breach caused injury); see also 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 the 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"). We hold that the probate court abused its discretion in denying Dr. Bogar's motion for sanctions under section 74.351(b). We sustain Dr. Bogar's issue.

Remedy

In the probate court, appellees requested that, in the event Dr. Adame's report was found deficient, the court grant them a discretionary 30-day extension under section 74.351(c) to enable them to cure any deficiencies in the report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). As earlier noted, subsection (c), like (b), applies when "an expert report has not been served within the period specified by Subsection (a)." See id. § 74.351(b), (c). Where the "expert report has not been served . . . because elements of the report are found deficient," the trial court is afforded discretion to grant a single 30-day extension in which the claimant can "cure the deficiency." Id. § 74.351(c). On appeal, appellees requested that if we reversed the probate court's order denying Dr. Bogar's motion, we remand to the probate court, in lieu of rendering a judgment of dismissal, to afford the lower court the opportunity to exercise its discretion under subsection (c). We recently granted such relief in another case involving an "expert report" that we held deficient. Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *20-21. We discerned that subsection (c) manifested legislative intent that in "at least some situations where a timely report is deficient . . . the trial court should consider whether the deficiency is such that it warrants allowing a cure period." Id. We found such a situation to exist in Austin Heart, and held that subsection (c) required us to remand in lieu of rendering a judgment of dismissal and sanctions. Id.

In Austin Heart, we considered an expert report that repeatedly referred in a background section to a defendant physician, Dr. Kessler, among other identified and unidentified caregivers, but failed to explicitly link Dr. Kessler's conduct to the expert's otherwise sufficient opinions regarding the applicable standard of care, how it was breached, and how the breach caused injury. Id. at *14-15. We concluded that the report was deficient because "it requires the reader to infer or make an educated guess that Dr. Cororve [the expert] is identifying Dr. Kessler as the physician who breached the standard of care and caused injury" and that "[t]here is nothing in the report that links Dr. Kessler to Dr. Cororve's opinions regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other 'various physicians' references." Id. at *11. However, we concluded that "[t]he tenor of Dr. Cororve's report, coupled with the fact that there is only one physician defendant, makes it quite likely that Dr. Cororve intended to opine that Dr. Kessler breached the standard of care and caused injury even though the report did not contain that opinion. The report's failure on this point is the kind of defect that the cure provisions of section 74.351(c) were designed to address." Id. at *14. We added that the report "was served timely, it makes more than a passing reference to Dr. Kessler, and it notes conduct by Dr. Kessler that could be linked to the expert's conclusions regarding the breach of the standard of care and causation. It is deficient only because it does not expressly make the link between the expert's conclusions and the referenced conduct of Dr. Kessler." Id. at *19.

We distinguished Dr. Cororve's report with those that other courts have held to be so deficient as to constitute an incurable "no report"--as if the claimant had wholly failed to file an instrument purporting to be an "expert report" as to the defendant within the 120-day period---and not merely containing "elements . . . found deficient." Id. at *19; see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). In Jernigan v. Langley, the Texas Supreme Court affirmed a trial court's dismissal of a health care liability claim as to Dr. Jernigan based on a report that made a mere "passing reference" to him and wholly failed to link him or his conduct to the expert's opinions regarding breach of standard of care. 195 S.W.3d at 94. The supreme court concluded that "the trial court had no discretion but to conclude, as it did here, that Langley's claims against Dr. Jernigan must be dismissed." Id. Similarly, in Garcia v. Marichalar, a report referenced several health care providers without mentioning the defendant physician. 198 S.W.3d at 254-55. As we observed, "[t]here was literally nothing in the report that related to the physician in any way" and that "[t]hus, the report was no report to him." Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *16. We acknowledged that in these types of cases, trial (and appellate) courts logically could have no discretion to effectuate a cure period where no report exists as to a defendant; the only possible "cure" would be the creation of a new, previously nonexistent report, an alternative that the legislature has forbidden under section 74.351. Id. at *18; see Apodaca, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3467, at *13; Marichalar, 198 S.W.3d at 255.

We contrasted these reports with that in Austin Heart, observing that:

[i]f the expert is of the opinion that Dr. Kessler's conduct breached the standard of care and caused injury, he will not have to generate a new, previously nonexistent report. He will simply have to add the link between his already stated conclusions and the already referenced conduct of Dr. Kessler. Therefore, the circumstances here are not similar to the situation where a plaintiff simply has missed the deadline for serving a report with respect to the conduct of a physician. Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *21. By contrast, we conclude that the present case is.

As previously noted, Dr. Adame never mentions Dr. Bogar anywhere in his report. He never describes the standard of care potentially applicable to Dr. Bogar, other than a broad reference to "the standard of care required of physicians not to prescribe drugs either alone or in combination that will cause a fatal overdose," which he never applies or analyzes in light of specific facts and circumstances. Dr. Adame never describes how Dr. Bogar might have breached a standard of care. In essence, Dr. Adame's report is a second autopsy report, opining about the cause of Ms. Guerrero's death without explaining who caused it or how.
Although the line between "no report" and a defective-but-curable report may sometimes be elusive, we conclude that Dr. Adame's report is clearly "no report." Its defects include the types of wholesale omissions identified in Jernigan and Marichalar, and Dr. Adame cannot cure them simply by "add[ing] the link between his already stated conclusions and the already referenced conduct" of Dr. Bogar. See Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *21.

There is nothing in the report regarding Dr. Bogar that could be linked to anything. Consequently, Dr. Adame could "cure" the deficiencies in his report only by "generat[ing] a new, previously nonexistent report" as to Dr. Bogar. See id. Such a remedy is proscribed by section 74.351. (1)

CONCLUSION

We must render judgment dismissing appellees' claims against Dr. Bogar with prejudice and awarding Dr. Bogar attorney's fees and costs. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). We remand to the probate court for a determination of the amount of the attorney's fee award. See Marichalar, 198 S.W.3d at 256-57; Pro Path Servs., L.L.P. v. Koch, 192 S.W.3d 667, 672 (Tex. App.--Dallas 2006, pet. denied).

__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop;
Dissenting Opinion by Justice Patterson
Reversed and Remanded
Filed: June 28, 2007

1. The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart, ___ S.W.3d at ___ (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351 does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3600, at *39 (Patterson, J., dissenting) ("[t]he difference between the two is strategically significant. If the report is 'no report,' then the trial court must dismiss the case with prejudice and has no discretion to grant a 30-day extension.") (emphasis in original); Apodaca, ___ S.W.3d at ___, 2007 Tex. App. LEXIS 3467, at *13 ("If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30-day extension.") (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex. App. San Antonio 2005, no pet.).