Rory Lewis, M.D. v. Dewayne Funderburk, as Next Friend of Whitney Funderburk ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-05-00197-CV
RORY LEWIS, M.D.,
Appellant
v.
DEWAYNE FUNDERBURK, AS NEXT
FRIEND OF WHITNEY FUNDERBURK,
Appellee
From the 87th District Court
Limestone County, Texas
Trial Court No. 27,143-B
MEMORANDUM OPINION
Dewayne Funderburk filed a medical malpractice suit against Dr. Rory Lewis
alleging that Lewis improperly treated his daughter Whitney’s fractured wrist. The
trial court denied Lewis’s motion to dismiss premised on Funderburk’s failure to serve
a sufficient expert report under section 74.351 of the Civil Practice and Remedies Code.
Lewis contends in two issues that the court should have granted the motion to dismiss
because: (1) Funderburk’s expert, a family practitioner, is not qualified to render an
expert opinion on orthopedic care; and (2) the report is conclusory and insufficient to
establish causation. Lewis also contends that, if we sustain either of these issues, we
should remand the case to the trial court with instructions to award costs and attorney’s
fees.
On original submission, this Court, with Chief Justice Gray dissenting, dismissed
the appeal for want of jurisdiction, holding that Lewis’s notice of appeal was untimely.
See Lewis v. Funderburk, 191 S.W.3d 756 (Tex. App.—Waco 2006). The Supreme Court
reversed and remanded the case to this Court for consideration of the merits of Lewis’s
claims.1 See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008).
We will: (1) reverse and render a judgment of dismissal; and (2) remand this
cause to the trial court for a hearing solely to determine the amount of attorney’s fees
and costs to be awarded.
Standard of Review
This Court and others have regularly stated that we review a trial court’s
decision regarding the adequacy of a section 74.351 expert report under an abuse-of-
discretion standard. See, e.g., Williams v. Mora, 264 S.W.3d 888, 891 (Tex. App.—Waco
2008, no pet.); Packard v. Guerra, 252 S.W.3d 511, 515 (Tex. App.—Houston [14th Dist.]
2008, pet. denied); Mosely v. Mundine, 249 S.W.3d 775, 778 (Tex. App.—Dallas 2008, no
pet.); Spitzer v. Berry, 247 S.W.3d 747, 749 (Tex. App.—Tyler 2008, pet. denied). Lewis
suggests that the appropriate standard of review is “arguably” de novo. He cites an
1
Lewis presented six issues on original submission. See Lewis v. Funderburk, 191 S.W.3d 756, 758
(Tex. App.—Waco 2006), rev’d, 253 S.W.3d 204 (Tex. 2008). The Supreme Court effectively decided
Lewis’s first three issues against him. See Lewis, 253 S.W.3d at 208. Lewis has filed a supplemental brief
on remand narrowing his issues accordingly. See 10TH TEX. APP. (WACO) LOC. R. 19 (providing for filing
of supplemental briefs upon remand from Supreme Court or Court of Criminal Appeals).
Lewis v. Funderburk Page 2
article in the Texas Bar Journal and two cases applying a de novo standard. See George
C. Hanks, Jr. & Rachel Polinger-Hyman, Redefining the Battlefield: Expert Reports in
Medical Malpractice Litigation After HB 4, 67 TEX. B.J. 936, 943 (2004); Univ. of Tex. Health
Science Ctr. v. Gutierrez, 237 S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied); Kendrick v. Garcia, 171 S.W.3d 698, 703 (Tex. App.—Eastland 2005, pet. denied).
The article does suggest that, because the Texas Legislature employed slightly
different language in Chapter 74 of the Civil Practice and Remedies Code than its
predecessor the Medical Liability and Insurance Improvement Act (TEX. REV. CIV. STAT.
ANN. art. 4590i), “an argument could be made that under Section 74.351, another, more
rigorous, standard should be applied.” Hanks & Polinger-Hyman, Redefining the
Battlefield, 67 TEX. B.J. at 943. Despite this suggestion, however, Texas courts have
continued to apply the abuse-of-discretion standard. See Williams, 264 S.W.3d at 891;
Packard, 252 S.W.3d at 515; Mosely, 249 S.W.3d at 778; Spitzer, 247 S.W.3d at 749.
The two cases cited by Lewis involved the issue of whether the defendant had
been “served” with an expert report within the meaning of section 74.351(a). See
Gutierrez, 237 S.W.3d at 871; Kendrick, 171 S.W.3d at 703. In both cases, these courts
construed the term “serve” to mean service as defined by Rule of Civil Procedure 21a.
See Gutierrez, 237 S.W.3d at 872; Kendrick, 171 S.W.3d at 704. Because both cases
involved an issue of statutory construction, a de novo standard of review was
mandated. See Kendrick, 171 S.W.3d at 703 (citing McIntyre v. Ramirez, 109 S.W.3d 741,
745 (Tex. 2003)) (other citation omitted).
Lewis v. Funderburk Page 3
The Fourteenth Court of Appeals has summarized the applicable standard of
review as follows:
We review a trial court’s decision on a motion to dismiss under
Texas Civil Practice and Remedies Code section 74.351 for an abuse of
discretion. When reviewing matters committed to the trial court’s
discretion, we may not substitute our own judgment for that of the trial
court. However, to the extent resolution of the issues presented requires
interpretation of the statute, we review the order under a de novo
standard.
Packard, 252 S.W.3d at 515 (citations omitted). We believe this to be a proper summary
of the applicable standard. See Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d
285, 291 (Tex. App.—Fort Worth 2008, pet. filed) (declining to apply de novo standard
“absent any controlling authority”); Kendrick, 171 S.W.3d at 702-03 (same).
To determine the adequacy of an expert report under section 74.351, the inquiry
is limited to the four corners of the report. Williams, 264 S.W.3d at 891 (citing Bowie
Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). With respect to the
proffered expert’s qualifications, the curriculum vitae may also be considered. Mosely,
249 S.W.3d at 779; Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex.
App.—Houston [14th Dist.] 2007, no pet.); see In re McAllen Med. Ctr., Inc., 51 Tex. Sup.
Ct. J. 1302, 1304, 2008 Tex. LEXIS 759, at *7-8 (Tex. Aug. 29, 2008).
Expert Qualifications
Lewis contends in his first issue that Funderburk’s expert, Dr. Larry Hughes, is
not qualified to provide expert opinion regarding orthopedic care because Hughes is a
family practitioner.
Lewis v. Funderburk Page 4
Section 74.401 establishes the qualifications for an expert witness in a malpractice
suit against a physician. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401 (Vernon 2005).
Subsection (a) provides:
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. § 74.401(a).
Lewis’s complaint focuses primarily on the third requirement of section
74.401(a), but it also includes to a degree a challenge to Hughes’s showing that he has
knowledge of the accepted standard of care, which is the second requirement of this
statute.
Subsection (a)(2) provides that a proffered expert must have “knowledge of
accepted standards of medical care for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim.” Id. § 74.401(a)(2). “The statute does not
focus on the defendant doctor’s area of expertise, but on the condition involved in the
claim.” McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2007,
no pet.); accord Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 1999, no
Lewis v. Funderburk Page 5
pet.); see also Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003); Baylor Univ. Med. Ctr.
v. Biggs, 237 S.W.3d 909, 915 (Tex. App.—Dallas 2007, pet. denied).
Subsection (a)(3) examines the proffered expert’s training and experience. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.401(a)(3). Subsection (c) provides:
In determining whether a witness is qualified on the basis of
training or experience, the court shall consider whether, at the time the
claim arose or at the time the testimony is given, the witness:
(1) is board certified or has other substantial training or experience in
an area of medical practice relevant to the claim; and
(2) is actively practicing medicine in rendering medical care services
relevant to the claim.
Id. § 74.401(c).
Possession of a license to practice medicine does not automatically qualify the
possessor as an expert on every medical question. Roberts, 111 S.W.3d at 121; Broders v.
Heise, 924 S.W.2d 148, 152 (Tex. 1996); McKowen, 263 S.W.3d at 163. Conversely, the
proffered expert need not necessarily practice in the same field as the defendant
physician to qualify as an expert for that case. See Roberts, 111 S.W.3d at 121; Broders,
924 S.W.2d at 153; McKowen, 263 S.W.3d at 165; Keo v. Vu, 76 S.W.3d 725, 732 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied); Blan, 7 S.W.3d at 745-46.
If the subject of inquiry “is substantially developed in more than one field,
testimony can come from a qualified expert in any of those fields.” Broders, 924 S.W.2d
at 154; accord Keo, 76 S.W.3d at 732; Blan, 7 S.W.3d at 745; see also Roberts, 111 S.W.3d at
121-22. Similarly, if the subject of inquiry “is common to and equally recognized and
developed in all fields of practice, any physician familiar with the subject may testify as
Lewis v. Funderburk Page 6
to the standard of care.” McKowen, 263 S.W.3d at 165; Keo, 76 S.W.3d at 732; Blan, 7
S.W.3d at 745-46. “The test to determine if a particular expert is qualified is rooted in
the expert’s training, experience and knowledge of the standards applicable to the
‘illness, injury, or condition involved in the claim.’” Blan, 7 S.W.3d at 746 (quoting TEX.
REV. CIV. STAT. ANN. art. 4590i, § 14.01(a)); accord McKowen, 263 S.W.3d at 162; Keo, 76
S.W.3d at 732; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(2).
Here, Hughes’s four-page CV provides extensive information regarding his
education, training, and experience. Cf. McAllen Med. Ctr., 51 Tex. Sup. Ct. J. at 1304,
2008 Tex. LEXIS 759, at *7 (“The curriculum vitae the plaintiffs submitted for Dr. Brown
was a model of brevity.”). Hughes is board certified in family practice by the American
Osteopathic Board of General Practice. He received his doctorate in osteopathic
medicine in 1980 from the Kirksville College of Osteopathic Medicine in Missouri. He
did a one-year internship at the South Bend Osteopathic Hospital in South Bend,
Indiana. He established a family practice in Indiana after his internship and maintained
that practice for eleven years before moving to Limestone County in 1992. He has
continued to practice medicine in Limestone County since then.
Hughes stated in his CV that his “special medical interests” are endoscopy of
upper and lower GI tracts, asthma/COPD, migraine headaches, chronic pain and
Alzheimer’s disease. Because of his general practice, however, he “continue[s] to treat,
evaluate, and refer, when necessary, orthopedic problems, including wrist fractures.”
He also stated in his report that he “maintain[s] and utilize[s] authoritative texts to
assist me in the diagnosis and treatment of orthopedic cases.” See Roberts, 111 S.W.3d at
Lewis v. Funderburk Page 7
122 (“Finally, Dr. McGehee consulted several peer-reviewed medical journal articles
and textbooks on pediatric neurology.”).
Lewis argues that Hughes is not qualified because his “CV is silent as to any
orthopedics interest or expertise.” He also complains that Hughes’s “limited
knowledge and experience is born out” by the fact that his opinion on the applicable
standard of care in this case is based solely on his reference to “the textbook ‘Practical
Orthopedics 5th edition’ by Mercier.” Finally, he contends that Hughes is not qualified
because his report does not indicate that he has any specialized knowledge regarding
the particular treatments and procedures Lewis employed in treating the fractured
wrist.
Lewis has provided the Court with a copy of purported excerpts from the
textbook at issue in the appendix to his brief. Funderburk responds that we should not
consider these excerpts because they were not presented to the trial court and are not
part of the appellate record. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per
curiam); In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.—Dallas 2007, pet.
denied); WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). Lewis responds that appellate courts
regularly take judicial notice of such publications. However, not one of the cases cited
for this proposition by Lewis involved appellate review of the adequacy of an expert
report under section 74.351 or its predecessor article 4590i.2 Moreover, considering
2
Lewis cites the following cases as support for his contention that we should take judicial notice of
the contents of the textbook. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 77 (Tex. 1997) (review of jury
verdict); Ex parte Briseno, 135 S.W.3d 1, 5-6 (Tex. Crim. App. 2004) (postconviction habeas); Grimes v. State,
Lewis v. Funderburk Page 8
additional materials provided by the parties for the first time on appeal would be
directly contrary to the settled scope of review in such appeals, namely, that the review
is limited to the four corners of the report and the proffered expert’s CV. See Bowie
Mem’l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878; Williams, 264 S.W.3d at 891;
Mosely, 249 S.W.3d at 779; Mem’l Hermann Healthcare, 230 S.W.3d at 758; see also McAllen
Med. Ctr., 51 Tex. Sup. Ct. J. at 1304, 2008 Tex. LEXIS, at *7-8. Therefore, we will not
consider the excerpts provided by Lewis in the appendix to his brief.
An expert need not be certified in the same area of specialization as the
defendant physician. See Roberts, 111 S.W.3d at 121; Broders, 924 S.W.2d at 153;
McKowen, 263 S.W.3d at 165; Keo, 76 S.W.3d at 732; Blan, 7 S.W.3d at 745-46. Thus,
Lewis’s general argument that Hughes is not qualified because he is a family
practitioner “ignores the plain language of [section 74.401(a)(2)], which focuses not on
the defendant doctor’s area of expertise, but on the condition involved in the claim.” Blan, 7
S.W.3d at 746; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a)(2).
In the same vein, we reject Lewis’s claim that Hughes is not qualified because his
report does not indicate that he has any specialized knowledge regarding the particular
treatments and procedures Lewis employed. The condition about which the
Funderburks complain is Whitney’s “malunited left distal radius fracture.” Hughes
does not opine that this condition was caused by “the closed reduction performed by
Dr. Lewis, the application of a sugar tong splint, [or] the application of a short arm
135 S.W.3d 803, 821 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (criminal appeal); Breckenridge v. State,
40 S.W.3d 118, 123-24 (Tex. App.—San Antonio 2000, pet. ref’d) (criminal appeal); Lemmon v. United Waste
Sys., Inc., 958 S.W.2d 493, 498-99 (Tex. App.—Fort Worth 1997, pet. denied) (wrongful termination);
Bryant v. State, 685 S.W.2d 472, 474 (Tex. App.—Fort Worth 1985, pet. ref’d) (criminal appeal).
Lewis v. Funderburk Page 9
cast,” which are three of the four orthopedic procedures Lewis argues that Hughes
lacks expertise in.3 Rather, Hughes opines that this malunion was caused by Lewis’s
failure to properly monitor Whitney’s recovery via x-rays obtained at appropriate
intervals “to indicate whether or not the fracture was properly healed.”
At the time of the report, Hughes had been a family practitioner for twenty-three
years. His is necessarily a general practice, but it includes the provision of orthopedic
care and, specifically, the treatment of wrist fractures. See TEX. CIV. PRAC. & REM. CODE
ANN. § 74.401(c). Thus, Hughes is qualified to offer an expert opinion regarding the
appropriate standard of care for monitoring a patient as her wrist fracture heals. See
McKowen, 263 S.W.3d at 162-64 (specialist in infectious disease qualified to give opinion
about cardiothoracic surgeon’s failure to properly monitor patient after diagnosis of
infection); Keo, 76 S.W.3d at 732-33 (otolaryngologist qualified to give opinion regarding
appropriate postoperative procedures following cosmetic surgery); Keeton v. Carrasco, 53
S.W.3d 13, 25-26 (Tex. App.—San Antonio 2001, pet. denied) (physician who specialized
in physical medicine, rehabilitation, and pain management qualified to give opinion
regarding standard of care for post-operative infection following orthopedic surgery).
Finally, experts often rely on textbooks and other publications to guide them in
determining the accepted standard of care. See, e.g., Roberts, 111 S.W.3d at 122. Thus,
3
The fourth procedure Lewis specifies is “x-ray imaging.” Hughes’s opinion obviously does relate
to the manner in which Lewis conducted x-ray imaging. However, x-ray imaging is a procedure common
to many medical fields. See Broders v. Heise, 924 S.W.2d 148, 154 (Tex. 1996) (if subject of inquiry “is
substantially developed in more than one field, testimony can come from a qualified expert in any of
those fields”); accord Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Blan
v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Lewis v. Funderburk Page 10
we cannot conclude that Hughes’s reliance on the textbook he cited should be cause for
concern.
Therefore, even assuming Hughes’s qualifications to provide an expert opinion
in this case are borderline (which we do not), we cannot say the court abused its
discretion by finding Hughes to be sufficiently qualified to provide expert opinion
regarding the manner in which Lewis monitored Whitney’s recovery. See Larson v.
Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam) (“Whether to exclude Bell’s
testimony is a close call on this record. Close calls must go to the trial court.”).
Accordingly, we overrule Lewis’s first issue.
Causation
Lewis contends in his second issue that Hughes’s report is conclusory and
insufficient to establish causation.
Section 74.351(r)(6) provides the requisites for a sufficient expert report.
“Expert report” means 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) (Vernon Supp. 2008).
“The report need only represent a good-faith effort to provide a fair summary of
the expert’s opinions.” Wooten v. Samlowski, No. 10-07-00305-CV, 2008 Tex. App. LEXIS
3709, at *4 (Tex. App.—Waco May 21, 2008, pet. filed) (citing Palacios, 46 S.W.3d at 878);
accord Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.—Houston [1st
Lewis v. Funderburk Page 11
Dist.] 2006, no pet.); Gallardo v. Ugarte, 145 S.W.3d 272, 277 (Tex. App.—El Paso 2004,
pet. denied); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.
App.—San Antonio 2004, no pet.); see TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
To constitute a fair summary, the report “must set out what care was expected, but not
given.” Palacios, 46 S.W.3d at 880 (quoting Palacios v. Am. Transitional Care Ctrs. of Tex.,
Inc., 4 S.W.3d 857, 865 (Tex. App.—Houston [1st Dist.] 1999) (Taft, J., dissenting));
Gallardo, 145 S.W.3d at 278. In other words, the report must provide “specific
information about what the defendant should have done differently.” Palacios, 46
S.W.3d at 880; Gray, 189 S.W.3d at 859; Gallardo, 145 S.W.3d at 277-78.
Here, Hughes opines in his report that the applicable standard of care calls for x-
rays at regular intervals to confirm the wrist fracture is healing properly and that “loss
of position has not occurred.” He states that Lewis deviated from this standard of care
by failing to have x-rays taken at several specified points during the healing process
and when the cast was removed. He concludes that “[t]hese deviations and breaches of
the standard care [sic] were the proximate causes of the malunited left distal radius
fracture.”
Hughes’s report is similar to reports found deficient in Gray and Costello. In
Gray, the expert report faulted the doctor’s failure to properly monitor the positioning
of the plaintiff’s knee. See Gray, 189 S.W.3d at 859. The First Court of Appeals found
this insufficient to establish causation.
Here, Dr. Toussaint's report contains only a general statement that
appellees failed to monitor Gray's left knee properly. The report provides
no specific information concerning what actions appellees should have
Lewis v. Funderburk Page 12
taken in the event they observed Gray's knee flexing. Indeed, a literal
reading of the report's most direct statements concerning breach leads to
the conclusion that simply monitoring Gray's extremities, and taking no
corrective action, would have prevented her injury. In view of such
general and conclusory statements concerning breach, we cannot conclude
that the trial court abused its discretion in dismissing Gray's suit.
Id. at 859-60.
In Costello, the report faulted a hospital’s failure to “appropriately triage[ ] and
evaluate[ ]” the plaintiff. See Costello, 141 S.W.3d at 249. The San Antonio Court found
this report insufficient to establish causation.
Dr. Schilling offers no explanation of what medical information a more
timely triage and evaluation would have revealed, nor does he state what
would have been done had Christus not failed to act, what treatment
would have or could have been available, that the patient was a candidate
for the unknown treatment, or that the unknown treatment could have or
would have been effective. Dr. Schilling’s report fails to state how
Christus’ failure to act was a substantial factor in bringing about Lozano’s
death and without which her death would not have occurred.
Id. at 249.
This Court reached a similar conclusion recently in Wooten.
These sections of Dr. Patman’s otherwise well-detailed and specific
report ultimately do not explain how Dr. Samlowki’s alleged breaches
caused Wooten’s injury, harm, and damages (the multiple life-threatening
complications, resultant multiple operations, multiple organ failure with
permanent damage, multiple prolonged hospital admissions, and future
medical care). From the overall gist of the report, we could infer—and it
is almost obvious—that Dr. Patman is of the opinion that, had Dr.
Samlowski not breached the standard of care, he more likely than not
would have found the source of Wooten’s acute abdomen in the
beginning, and she in all reasonable medical probability would not have
suffered such injury, harm, and damages. But we cannot make such an
inference, nor can we fill in gaps by stating the obvious.
Wooten, 2008 Tex. App. LEXIS 3709, at *18-19.
Lewis v. Funderburk Page 13
Funderburk acknowledges this line of cases but argues that his case is more
similar to the facts presented in Gallardo because the report in that case “indicated that if
the proper steps had been taken the injury could have been prevented from occurring
or progressing.” He contends that this is analogous to Hughes’s “opinions that had x-
rays been taken as required by the standard of care that the alignment could have been
monitor[ed] and maintained and the malunion and subsequent surgery avoid[ed].”
We do not agree with Funderburk’s interpretation of Hughes’s report. First,
Hughes never states that, had Lewis conducted additional x-rays, a proper alignment
for the fracture could have been “maintained.” At best, Hughes opines that Lewis
could have monitored the alignment with regular x-rays and inferentially would have
detected any misalignment at an earlier stage in the healing process. However, a
proffered expert report cannot be deemed sufficient because of inferences which may be
drawn from its contents, even if those inferences are reasonable, logical, or even
“obvious.” See Bowie Mem’l Hosp., 79 S.W.3d at 53; Wooten, 2008 Tex. App. LEXIS 3709,
at *18-19; Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 570 (Tex. App.—Dallas 2007,
pet. denied).
Second, even if we could infer from Hughes’s report that Lewis would have
detected a misalignment if he had ordered more frequent x-rays, Hughes’s report is
completely silent about what Lewis could or should have done upon detecting a
misalignment. See Gray, 189 S.W.3d at 859-60; Costello, 141 S.W.3d at 249; see also
Wooten, 2008 Tex. App. LEXIS 3709, at *18-19. And this is what distinguishes Hughes’s
report from the report under consideration in Gallardo. In Gallardo, the plaintiff’s expert
Lewis v. Funderburk Page 14
not only faulted the nurse for failing to monitor the patient every two hours to ensure
that he changed his position in the bed (to prevent decubitus ulcers), but also indicated
additional steps that could be taken to prevent the formation of ulcers including
“padding his bed and applying Granulex spray.” See Gallardo, 145 S.W.3d at 279. As
the Court explained, the report “adequately convey[ed] the idea that failure to take the
proper steps caused the decubitus or caused it to get worse.” Id. at 280.
Here, Hughes explained how Lewis failed to detect a misalignment, which
inferentially preceded the malunion, but he did not explain what Lewis could or should
have done about it upon making this discovery. Therefore, we hold that Hughes’s
report does not constitute a good-faith effort to provide a fair summary of the causal
relationship between Lewis’s failure to monitor the fracture as it healed and the
malunited fracture. Accordingly, we sustain Lewis’s second issue.
Appropriate Disposition
Lewis contends that, because Funderburk has already been granted the
opportunity to file an amended expert report, this Court should render judgment
dismissing Funderburk’s claims but remand the case to the trial court for the award of
costs and attorney’s fees.
Lewis requested costs and attorney’s fees in his trial pleadings. Cf. Victoria
Gardens of Frisco v. Walrath, 257 S.W.3d 284, 291 (Tex. App.—Dallas 2008, pet. denied)
(defendant’s prayer for general relief insufficient to preserve right to recover costs and
attorney’s fees under section 74.351(b)(1)). Under section 74.351(b)(1), the trial court has
a duty to award costs and attorney’s fees in this instance. See TEX. CIV. PRAC. & REM.
Lewis v. Funderburk Page 15
CODE ANN. § 74.351(b)(1) (Vernon Supp. 2008); Boothe v. Dixon, 180 S.W.3d 915, 921
(Tex. App.—Dallas 2005, no pet.).
Therefore, we reverse the trial court’s order denying Lewis’s motion to dismiss
and render a judgment of dismissal. In addition, we remand this cause to the trial court
for a hearing solely to determine the amount of attorney’s fees and costs to be awarded
to Lewis. See Bogar v. Esparza, 257 S.W.3d 354, 373 (Tex. App.—Austin 2008, no pet.);
Boothe, 180 S.W.3d at 921.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurring with note)*
Reversed and Rendered in part,
Reversed and Remanded in part
Opinion delivered and filed December 31, 2008
[CV06]
* (Chief Justice Gray concurs in the judgment and in the opinion with regard to the
disposition of issues of the adequacy of the report and attorney’s fees. He does not join
the opinion on the issue of qualifications because it is not necessary to a disposition of
the appeal and thus is seven pages of dicta. A separate opinion will not issue.)
Lewis v. Funderburk Page 16