Lindsey Daniel Bradshaw v. Garry Gore, M.D ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00279-CV

Lindsey Daniel Bradshaw,

                                                                      Appellant

 v.

Garry Gore, M.D,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 02-000802-CV-361

DISSENTING Opinion

          Lindsey Daniel Bradshaw appeals the dismissal of her medical malpractice suit for failure to file a compliant expert report.  After a hearing, the trial court granted Dr. Garry Gore’s motion to dismiss and dismissed the case with prejudice.  Because the trial court did not abuse its discretion, we should affirm.  The majority, rather than review the trial court’s ruling, decides that it would not have granted the motion to dismiss.  I dissent.

          When considering a motion to dismiss, "the issue for the trial court is whether 'the report' represents a good-faith effort to comply with the statutory definition of an expert report." American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).  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.  Palacios, 46 S.W.3d at 879; Bowie, 79 S.W.3d at 52.  We review a trial court’s order dismissing a claim for failure to comply with the expert report requirements under an abuse-of-discretion standard.  Palacios, 46 S.W.3d at 878; Bowie, 79 S.W.3d at 52.

          The parties only contest whether the expert reports filed constitute a “good-faith effort” to fairly summarize the causal relationship between Gore’s alleged breach and Bradshaw’s injury.  Both reports discuss the events leading up to Bradshaw’s eventual diagnosis of herpetic encephalitis within one to two days of being seen at an emergency room on two successive days.  Both reports also express disbelief in Gore’s inability to make this diagnosis.  The reports do not indicate when Gore treated Bradshaw.  Dr. Law’s report concludes:

Based on reasonable probability, the institution of Acyclovir therapy at an earlier time would have prevented or ameliorated her neurologic damage.

Dr. Hayden’s report concludes:

It is reasonable to believe that had therapy with Acyclovir been initiated earlier in the course of her disease, some or all of her current deficits may have been prevented.

There is no discussion in either of these reports as to how early Acyclovir needed to be initiated and if initiated at a time when Gore treated Bradshaw what differences would have been seen in Bradshaw’s mental abilities or deficiencies.  We cannot infer that Gore’s alleged breach prevented Bradshaw from developing less brain damage.  After reviewing the reports, the trial court could have reasonably determined that the reports by Drs. Law and Hayden, much like the report reviewed in Bowie, are conclusory. 

          Thus, the trial court did not abuse its discretion in dismissing Bradshaw’s case with prejudice.  The judgment of dismissal should be affirmed.  The majority simply does not agree with the trial court’s ruling and therefore reverses it, thus substituting its judgment for that of the trial court’s judgment.  That is not a proper review under the abuse-of-discretion standard.  I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed February 1, 2006