Carol Wooten v. Eberhard Samlowski, M.D. ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00305-CV

Carol Wooten,

                                                                                    Appellant

 v.

Eberhard Samlowski, M.D.,

                                                                                    Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. C200700032

dissenting  Opinion

            This is another in a series of proceedings in which the majority refuses to apply the medical malpractice statute.  See Lewis v. Funderburk, 191 S.W.3d 756 (Tex. App.—Waco 2006), rev’d & remanded, Lewis v. Funderburk, 2008 Tex. LEXIS 312 (Tex., Apr. 11, 2008); Hill Reg'l Hosp. v. Runnels, No. 10-06-00372-CV, 2007 Tex. App. LEXIS 2025, (Tex. App.—Waco March 14, 2007), rev’d & remanded, Hill Reg'l Hosp. v. Runnels, 2008 Tex. LEXIS 307 (Tex., Apr. 11, 2008); Langley v. Jernigan, No. 10-00-00373-CV, 2005 Tex. App. LEXIS 1687 (Tex. App.—Waco Mar. 2, 2005), rev’d & dism’d, Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006); Hillcrest Baptist Med. Ctr. v. Wade, 172 S.W.3d 55, 61 (Tex. App.—Waco 2005, pet. granted, appeal dismissed); Langley v. Jernigan, 76 S.W.3d 752 (Tex. App.—Waco 2002), rev’d & remanded, Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003).   I would apply the statute and affirm the trial court’s judgment.  I respectfully dissent.

            Within 120 days of filing a medical malpractice suit, Carol Wooten served an expert report on Dr. Eberhard Samlowski.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007).  After filing an objection contending that the report did not provide any expert opinions regarding how the care rendered by Samlowski proximately caused Wooten’s injury, harm, or damages, Samlowski filed a motion to dismiss making the same argument.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b) (Vernon Supp. 2007).  Wooten responded to the motion to dismiss and within the same document, requested a 30 day extension to cure any deficiencies in the report.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp. 2007).

            The trial court dismissed Wooten’s suit with prejudice and found that the report did not “represent an objective good faith effort to comply with the definition of an expert report as required by law….”  The trial court also ordered that all relief not granted in the order is denied.  Because the trial court did not err in finding that the report did not represent an objective good faith effort to comply with the definition of an expert report and because the trial court did not abuse its discretion in denying Wooten’s request for a 30 day extension, we should affirm the trial court’s judgment.

Dismissal

            In her first issue, Wooten argues that the trial court erred in dismissing her lawsuit, taking issue only with the court’s determination that the report did not represent an objective good faith effort to comply with the definition of an expert report.

            When considering a motion to dismiss under Section 74.351, 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.  See 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, 878 (Tex. 2001).  An “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 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) (Vernon Supp. 2007).  To constitute a "good-faith effort," the report must discuss the standard of care, breach, and causation with sufficient specificity to fulfill two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for the trial court to conclude that the claims have merit.  Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

            The trial court should look no further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners.  Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  The report must include the expert's opinion on each of the three elements that the statute identifies: standard of care, breach, and causal relationship.  Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  A report cannot merely state the expert's conclusions about these elements.  Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. "Rather, the expert must explain the basis of his statements to link his conclusions to the facts."  Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).

            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.  Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.  When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for the trial court's judgment.  See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989).

             Samlowski argued in his motion to dismiss, and argues here on appeal, that the statements in the expert report are conclusory and reveal no causal connection between the alleged negligent acts and the injuries, harm, or damages suffered by Wooten.  Wooten disagrees with Samlowski’s characterization of the report but cannot point to any specific statement made in the report that relates to the causal relationship between the breach of the standard of care and the injuries, harm, or damages claimed.  She contends that the expert’s discussion of causation occurs “in bits and pieces” throughout his report.  We have reviewed the four corners of the report and have found no statements of causation.  There are many statements regarding the standard of care and many, many detailed statements regarding Samlowski’s failure to adhere to the standard of care.  However, we can find no statements that link a specific failure to follow a standard of care to a specific injury, harm, or damage to Wooten.

            Because we can find no specific statements of causation within the four corners of the report, the report cannot meet the two purpose test of Palacios and cannot constitute a good faith effort. Thus, the trial court did not err in its determination that Wooten’s report does not represent an objective good faith effort to comply with the definition of an expert report, and did not abuse it’s discretion in dismissing Wooten’s suit.  Wooten’s first issue should be overruled.

Continuance

            By her second issue, Wooten argues that the trial court erred “in not granting [her] request for a thirty (30) day extension” to cure the deficiency in the report.  See Tex. Civ. Prac. & Rem. Code 74.351(c) (Vernon Supp. 2007).  Because the term "may" as used in subsection (c) vests the trial court with discretion to grant a 30-day extension, we review the decision of the trial court in granting or denying a motion for an extension of time under section 74.351(c) by an abuse of discretion standard.  Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex. App.—Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.—Texarkana 2005, no pet.).  Nothing in this record indicates that the district court clearly abused its discretion in not allowing Wooten a 30-day extension to cure the deficiencies in her report.   Her second issue should also be overruled.^[1]

Conclusion

            We should overrule each of Wooten’s issues and affirm the trial court’s judgment.  Because the majority does not, I dissent.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissenting Opinion delivered and filed May 21, 2008

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[1] Wooten urges us to remand to the trial court for the consideration of a 30 day extension.  She cites to a plethora of cases as support for her request.  Those cases are inapplicable here.  In those cases, the appellate court reversed the trial court’s denial of a doctor’s or hospital’s motion to dismiss and remanded the case for, in most cases, the consideration of a request for an extension not previously considered.  Here, the motion to dismiss was granted and Wooten’s request was considered and denied.