donald-carney-md-and-lakeland-medical-associates-and-william-conner ( 2014 )

NO. 12-13-00024-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DONALD CARNEY, M.D. AND § APPEAL FROM THE 392ND
LAKELAND MEDICAL ASSOCIATES
AND WILLIAM CONNER, M.D. AND
TYLER INPATIENT MANAGEMENT
SPECIALISTS, P.A.,
APPELLANTS
§ JUDICIAL DISTRICT COURT
V.
BETTY HOLDER, INDIVIDUALLY
AND AS EXECUTRIX OF THE
ESTATE OF JOE HOLDER,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Donald Carney, M.D., Lakeland Medical Associates, William Conner, M.D., and Tyler
Inpatient Management Specialists, P.A. (Appellants) appeal the trial court’s orders overruling
their objections to the expert report and denying their motion to dismiss. They raise one issue on
appeal. We reverse and remand.
BACKGROUND
Betty Holder filed suit against Appellants for medical negligence, and timely tendered the
expert report of Dr. Rhett Fredric. Appellants objected to the report, alleging that it failed to
satisfy the expert report requirements of Texas Civil Practice and Remedies Code Section 74.351,
and moved to dismiss the suit.
In the report, Dr. Fredric stated that Joseph Holder, Betty’s husband, presented to Dr.
Carney at Lakeland Medical Associates on July 28, 2010, with low back pain that began
approximately two weeks prior to the visit. Joseph weighed 228 pounds at the time. Dr. Carney
ordered radiographic imaging, an MRI, various lab tests, and prescribed ―Lortab‖ to Joseph for his
pain symptoms. Joseph’s lab tests showed ―an elevated sed rate of 30 (normal is 0-15), elevated
BUN at 27[,] and also elevated creatinine and calcium levels.‖
Joseph’s pain worsened and he returned to Lakeland on August 2, 2010, with complaints
of increased back pain and fever. Joseph weighed 217 pounds on the date of this visit,
representing a loss of eleven pounds since his visit just five days earlier. Further lab tests were
conducted that showed an ―elevated sed rate at 88, elevated BUN at 46, elevated creatinine at
1.91, and an elevated B/C ratio of 24.1, as well as again, an elevated calcium level.‖
On August 4, 2010, Joseph was admitted to Trinity Mother Frances Hospital under the
care of Dr. Conner. While at the hospital, Joseph experienced low white blood cell and platelet
counts, as well as elevated BUN, carbon dioxide, and calcium levels. Dr. Conner documented
suspicions of cancer and metastatic disease and ordered a bone scan.1 The scan was read as being
negative for metastatic lesions.2 Joseph was discharged on August 10, 2010, with diagnoses of
―acute low back pain, pancreatic lesion, acute renal sufficiency, hypercalcemia, and
hypertension.‖
On August 16, 2010, Joseph returned to Lakeland and saw Dr. Carney for increased back
pain. Dr. Carney diagnosed Joseph with low back pain and gout, and prescribed steroids. On
August 20, 2010, at a follow up visit, Dr. Carney again diagnosed Joseph with gout.
On August 26, 2010, Dr. Carney ordered a basic metabolic panel, which showed abnormal
results for ―BUN, creatinine, B/C ratio, eGFR, chloride, carbon dioxide, anion gap, and calcium
levels.‖ On September 9, 2010, Joseph saw Dr. Carney again and he weighed 185 pounds, which
reflects a forty-three pound weight loss from his initial visit on July 28, 2010. Lab tests from this
visit showed abnormal results for platelets and white blood cell count, and an elevated calcium
1
Dr. Conner also documented a suspicion of pancreatic malignancy during this hospitalization and requested
a gastrointestinal consult with Dr. Don Freeman and Digestive Health Specialists of Tyler, LLP. Betty sued Dr.
Freeman and Digestive Health Specialists as well. However, the trial court sustained their objections to Dr. Fredric’s
report and dismissed them from the suit. They are not parties to this appeal.
2
Dr. Bruce Carter was the radiologist who interpreted the bone scan. Betty sued him and Tyler Radiology
Associates, but they were dismissed from the suit and are not part of this appeal. Other than an entry in the docket
sheet that there was an ―agreed judgment‖ involving these parties issued the same day as the other orders were signed,
the reason for this disposition is not clear in the record.
2
level.3 Dr. Carney referred Joseph to a chronic pain specialist, and ordered Joseph to follow up in
one week.
On September 15, 2010, Joseph was admitted to East Texas Medical Center (ETMC) with
a diagnosis of small cell lung carcinoma. Joseph’s oncologist noted a large mass on his upper
right lung lobe, and found that the August 4, 2010 bone scan was positive for metastatic disease.
The oncologist also documented that Joseph was symptomatic of cancer due to his significant
weight loss and elevated levels of calcium. Joseph began cancer treatment, but died on
September 22, 2010.
The report alleges that Appellants were negligent by failing to recognize cancer symptoms
and refer Joseph to an oncologist, resulting in an untimely diagnosis of cancer. However, Dr.
Fredric does not allege in the report that Joseph would have survived had he been timely
diagnosed. Rather, Dr. Fredric states that the untimely diagnosis resulted in unnecessary pain and
suffering, which forms the basis of Betty’s claim. The trial court overruled Appellants’ objections
and denied their motions to dismiss. This interlocutory appeal followed.
JURISDICTION
As a preliminary matter, Betty contends that this court does not have subject matter
jurisdiction over this interlocutory appeal because Appellants failed to timely perfect their appeal.
Standard of Review and Applicable Law
A party may appeal from the trial court’s interlocutory order that denies all or part of the
relief sought by a motion to dismiss for failure to serve an adequate medical expert report under
Section 74.351(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West Supp. 2014).
The appeal is accelerated. TEX. R. APP. P. 28.1(a). In an accelerated appeal, the notice of appeal
must be filed within twenty days after the judgment or order is signed. TEX. R. APP. P. 26.1(b).
The trial court clerk must immediately send written notice to the parties by first class mail
that the trial court signed an appealable order. TEX. R. CIV. P. 306a(3). If the party adversely
affected by the order (1) does not receive the clerk’s notice within twenty days after the order is
signed, (2) has not acquired actual knowledge of the order within that twenty day period, (3) but
obtains the written notice or actual knowledge of the order’s signing within ninety days, the trial
3
Dr. Carney did not review these results until October 4, 2010, after Joseph died. His staff did not provide
him with the results until then. According to Dr. Fredric’s report, since Joseph began receiving the appropriate
treatment at East Texas Medical Center on September 15, 2010, the delay is relevant only for the six day period that
Joseph suffered unnecessary pain (from the lab test date to the date of his admission at ETMC).
3
court may reset the date on which the time to perfect the appeal begins. See TEX. R. CIV. P.
306a(4). The trial court should reset the date to the day that the adversely affected party received
the notice or obtained actual knowledge of the order’s signing. See id.
Rule 306a(4)’s extension is not automatic, but instead requires the adversely affected party
to (1) file a sworn motion and notice, (2) prove the date on which he or his attorney first received
notice or acquired actual knowledge of the order, and (3) prove that date was more than twenty
days, but within ninety days, of the order’s signing. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P.
306a(5); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Furthermore, the trial court must sign a written order
finding the date on which the party or its attorney received notice or acquired actual knowledge.
TEX. R. APP. P. 4.2(c). Compliance with Rule 306a(5)’s requirements is jurisdictional. See
Mem’l Hosp. of Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987). This procedure to
extend the deadline to file a notice of appeal applies to accelerated interlocutory appeals. See
PER Group, L.P. v. Dava Oncology, L.P., 294 S.W.3d 378, 383 (Tex. App.—Dallas 2009, no
pet.).
We review the trial court’s decision concerning the date a party received actual knowledge
of the order’s signing under the traditional legal and factual sufficiency of the evidence standard
of review. Texaco, Inc. v. Phan, 137 S.W.3d 763, 767-68 (Tex. App.—Houston [1st Dist.] 2004,
no pet.).
Discussion
Betty contends that the trial court erred when it granted Appellants’ motion to extend the
appellate deadlines under Rule 306a. She does not dispute the facts established at the hearing on
the motion. Instead, she contends that Appellants and their counsel had a duty to inquire about the
date the trial court signed the orders denying their objections and motions to dismiss, and failed to
properly discharge this duty.
On October 29, 2012, after the hearing on Appellants’ motions to dismiss, the trial court
informed the parties in writing that it would overrule Appellants’ objections and motions to
dismiss without signing any official order. However, the parties believed that the orders would
not be signed until after the expiration of the original 120 day period to file the expert report.4 The
4
The parties wished to avoid a possible appellate issue. They believed Betty theoretically could have
amended her report within the original 120 day period in the event the trial court found the report insufficient prior to
4
120 day deadline expired on December 17, 2012, but on November 16, 2012, the trial court signed
the orders denying Appellants’ objections and motions to dismiss, as well as the orders dismissing
the other defendants from the suit. The clerk never provided the Rule 306a(3) notice, and the
parties remained unaware that the trial court had signed the orders.5 Appellants learned that the
other defendants had been dismissed from the suit on December 6, 2012, but never received
written notice that the trial court was overruling their objections.
On January 2, 2013, when Dr. Carney and Lakeland Medical’s counsel returned from the
holidays, he called Betty’s counsel, stating that he had not received a copy of the signed orders.
Betty’s lawyer replied that he had not received the orders, and stated that he would call the trial
court clerk. As a result of his call to the court clerk, Betty’s lawyer discovered that the orders had
been signed, and he notified the other parties that day.
Appellants filed a motion to extend the appellate timetable under Rule 306a(5). At the
hearing, Appellants’ lawyers testified to their understanding about delaying the signature of the
orders until after December 17, 2012, and established that they did not obtain the clerk’s written
notice or actual knowledge that the orders had been signed until January 2, 2013. Betty’s counsel
did not disagree with the facts, but argued that Appellants’ lawyers had a duty to inquire of the
court concerning when it signed the orders, and that they failed to discharge their duty. See In re
Rhodes, 293 S.W.3d 342, 344 (Tex. App.—Fort Worth 2009, no pet.); Welborn Mort. Corp. v.
Knowles, 851 S.W.2d 328, 331 (Tex. App.–Dallas 1993, writ denied).
In Rhodes, the party aggrieved by the judgment contacted the court clerk and learned that
an order had been signed. See In re Rhodes, 293 S.W.3d at 344. He acquired this knowledge
within twenty days after the order was signed. Id. However, he waited to receive the actual
written copy of the notice of judgment, and later claimed the date he received the written notice
extended the deadline to file a motion for new trial under Rule 306a. Id. But his affidavit
conclusively showed that, when he called the court clerk, he acquired actual notice that an order
had been signed prior to the twenty day period. Id. Consequently, he could not avail himself of
the expiration of the 120 day deadline. Therefore, Appellants wanted to avoid raising the issue of whether the trial
court had the authority to rule on the motion within the 120 day period.
5
The record is unclear as to whether the court was informed of the parties’ understanding. Appellants’
counsel discussed the issue with Betty’s counsel. From this discussion, Appellants’ counsel believed that Betty’s
counsel, as the prevailing party drafting the proposed orders, would inform the court that it would be best to delay
signing the orders until after December 17, 2012. Betty’s counsel agreed with this understanding, but never stated
whether he informed the court of the agreement.
5
the Rule 306a extension. Id. The court rejected the argument that he did not have notice of the
order until he received it and became aware of its contents. Id. Rhodes is distinguishable from
the present case because Appellants did not obtain the clerk’s notice or obtain actual knowledge of
the orders’ signing until January 2, 2013, a date more than twenty days after their signing.
In Knowles, after prevailing on their claims in a jury trial, the plaintiffs’ counsel moved for
judgment on the jury verdict. Knowles, 851 S.W.2d at 329-30. Counsel attached a cover letter to
the proposed judgment, in which he asked that the court sign and enter the proposed judgment.
Id. at 330. However, counsel hand delivered the cover letter and proposed judgment to the court,
and the trial court signed the proposed judgment that day. Id. The court clerk never sent the
defendant or his counsel the 306a written notice of judgment. Id. The plaintiffs’ counsel
forwarded the cover letter and a copy of the signed judgment to defense counsel. Id. The
defendant’s counsel read only the cover letter requesting that the trial court sign the attached
proposed judgment, but did not actually read the judgment itself to learn that it had been signed.
Id. The defendant later sought to extend the postjudgment deadlines under Rule 306a, claiming
that he did not receive notice until later when the plaintiffs’ counsel sent a letter stating that the
judgment was final. Id. The Dallas court of appeals stated that ―[t]he law charges one who has
knowledge of facts that would cause a prudent man to inquire further with notice of the facts that,
by use of ordinary intelligence, he would have learned.‖ Id. at 331. A divided court held that,
since defense counsel negligently failed to read the judgment, he had implied actual notice that it
had been signed. See id. at 332. Therefore, the defendant could not avail itself of the Rule 306a
extension, and the court lacked jurisdiction to hear the appeal. See id.
At least one court has distinguished Knowles, holding that the application of the ruling in
Knowles is limited to its facts. See Straitway Transp., Inc. v. Mundorf, 6 S.W.3d 734, 737 (Tex.
App.—Corpus Christi 1999, pet. denied). In Mundorf, the defendant prevailed at trial, and
drafted the proposed judgment, sending a copy to the court and the plaintiffs on November 21,
1997. Id. The trial court signed the judgment on December 5, 1997. Id. The defendant obtained
notice of the judgment from the court on December 19, 1997. Id. at 736. The plaintiffs did not
receive notice until January 6, 1998. Id. The court of appeals distinguished Knowles, holding
that it applies only in situations where an attorney has admitted to actual physical receipt of the
signed judgment but argues that he lacked knowledge of the judgment. Id. at 737. In Mundorf,
counsel received only a copy of the proposed unsigned judgment, and made no further inquiry of
6
the court, its clerk, or opposing counsel. Id. The court noted that the language of Rule 306a was
clear on its face. Id. The appellate court held that Knowles was inapplicable because the
plaintiffs did not receive the clerk’s notice or actual knowledge of the judgment’s signing until
more than twenty days but less than ninety days after it was signed. As a result, the trial court
should have extended the deadlines. Id.
The facts in the instant case are more akin to Mundorf, and we agree that Knowles does
not apply to these facts. The complaining party in Knowles possessed a signed copy of the
judgment. In this case, Appellants did not have any notice of the judgment until January 2, 2013.
The fact that Appellants knew of an unsigned proposed judgment and that other defendants had
been dismissed does not mean they acquired actual knowledge that a judgment against them had
been signed. Moreover, even if they had a duty to inquire under these facts, the trial court could
have found that the inquiries of Appellants’ counsel to Betty’s counsel, who was the prevailing
party drafting the proposed judgment, reasonably satisfied that duty.
We conclude that the trial court properly found that Appellants acquired actual knowledge
the orders were signed on January 2, 2013. Since the notices of appeal were filed within twenty
days of that date (January 18, 2013), this court has jurisdiction over this appeal.
EXPERT REPORT
In their sole issue, Appellants contend that the trial court abused its discretion when it
overruled their motion to dismiss Holder’s suit for failure to comply with the expert report
requirements on causation under Chapter 74.
Standard of Review
We review a trial court’s Section 74.351 ruling for an abuse of discretion. Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court
abuses its discretion if it acts in an unreasonable or arbitrary manner, without reference to any
guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court
acts arbitrarily and unreasonably if it could have reached only one decision, but instead reached a
different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.—Texarkana 2003, no pet.).
To that end, a trial court abuses its discretion when it fails to analyze or apply the law correctly.
In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz, 124 S.W.3d 179,
181 (Tex. 2003)). We may not substitute our judgment for that of the trial court. Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).
7
Applicable Law
An ―expert report‖ is a written report that provides a fair summary of the expert’s opinions
regarding applicable standards of care, the manner in which the defendant failed to meet those
standards, and the causal relationship between the defendant’s failure and the plaintiff’s injury,
harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.35l(r)(6) (West Supp.
2014). In setting out the expert’s opinions on each of the required elements, the report must
provide enough information to fulfill two purposes if it is to constitute a good faith effort.
Palacios, 46 S.W.3d at 879. An objective good faith effort to comply with the statute is made if
the report (1) informs the defendant of the specific conduct that the plaintiff has called into
question and (2) allows the trial court to conclude that the claim has merit. Id. at 879. A report
that merely states the expert’s conclusions about the standard of care, breach, and causation does
not provide the necessary information to fulfill the dual purposes. Id. Rather, the expert must
explain the basis of his statements to link his conclusions to the facts. Bowie Mental Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). In our review of an expert report, we are limited to the
report’s contents, contained within the four corners of the report, in determining whether the
report manifests a good faith effort to comply with the statutory definition of an expert report. See
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l ); Palacios, 46 S.W.3d at 878.
A causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm and that absent this act or omission, the harm would
not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249
(Tex. App.—San Antonio 2004, no pet.). Merely providing some insight into the plaintiff’s
claims does not adequately address causation. Wright, 79 S.W.3d at 53. Accordingly, causation
cannot be inferred; it must be clearly stated. Castillo v. August, 248 S.W.3d 874, 883 (Tex.
App.—El Paso 2008, no pet.). Indeed, we may not fill in gaps in a report by drawing inferences
or guessing what the expert meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279
(Tex. App.—Austin 2007, no pet.).
However, a plaintiff need not present evidence in the report as if it were actually litigating
the merits. Palacios, 46 S.W.3d at 879. The report can be informal, meaning that it does not have
to meet the same requirements as the evidence offered in a summary judgment proceeding or at
trial. Id.
8
Adequacy of Dr. Fredric’s Causation Opinion—Dr. Carney and Dr. Conner
Dr. Fredric’s opinion on causation is that had either Dr. Carney or Dr. Conner timely
diagnosed Joseph with cancer or referred him to an oncologist, Joseph would have obtained the
―appropriate pain treatment.‖ Consequently, his report continues, Joseph would have foregone
unnecessary pain and suffering due to the delay.
Dr. Carney took steps to alleviate Joseph’s pain by prescribing at least one pain
medication—Lortab.6 Dr. Carney also referred Joseph to a chronic pain specialist. Two days after
the second visit with Dr. Carney, Joseph was admitted to Trinity Mother Frances Hospital for
several days under Dr. Conner’s care. Dr. Conner suspected cancer, and took steps to determine
whether Joseph had cancer by ordering a bone scan and referred Joseph for diagnostic radiological
studies. The physicians conducting those tests concluded there was no evidence of metastatic
lesion, and there was ―no definite scintigraphic evidence of osseous metastatic disease or active
lytic or blastic lesion.‖
Dr. Fredric’s support for causation is that, according to his report, cancer pain medications
are different than gout pain medications, back pain medications, and medications for chronic pain.
However, he does not identify the medications that should have been prescribed, explain how they
are different than other pain medications, describe how those medications would be more
effective in eliminating Joseph’s pain, or explain how an oncologist would be more qualified to
provide the correct prescriptions than either individual defendant or the chronic pain specialist.
This information is critical, especially since the category of damages Betty seeks arises from
Joseph’s pain and suffering, and Joseph had already been prescribed at least one pain medication.
Consequently, Dr. Fredric’s statements on causation are conclusory, lack sufficient detail, and
require us to make inferences to conclude the claim has merit. Without that information, we
cannot conclude that the claim is meritorious.
Betty claims that even if the negligent diagnosis claim is insufficient, the negligent referral
claim against both individual defendants is sufficiently alleged, and consequently, the entire case
should proceed. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (holding
report that meets Section 74.351 requirements, even if as to only one theory of liability, entitles
claimant to proceed with suit against physician or other health care provider). Betty also contends
6
During his treatment, Appellants allege that Joseph was prescribed numerous pain medications, including
Lortab, Toradol, Hydrocodone, Norco, Percocet, Morphine, and Tramadol. However, other than Lortab, Dr. Fredric
did not mention any of these pain medications in his report. Since our analysis is limited to information contained
within the four corners of the report, we consider only that Joseph was prescribed Lortab for pain.
9
she was not required to marshal all her proof and that Dr. Fredric need not rule out every possible
cause or rebut all possible defensive theories, at least for purposes of satisfying the expert report
requirement in a healthcare liability claim. See, e.g., Hillery v. Kyle, 371 S.W.3d 482, 492 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). While Dr. Fredric may not have been required to rule
out all possible causes or rebut all possible defensive theories, he must establish in his report some
causal connection between Appellants’ conduct and the harm Joseph suffered. The statements
concerning causation cannot be inferred, speculative, or conclusory. See Wright, 79 S.W.3d at
53; Castillo, 248 S.W.3d at 883; Webb, 228 S.W.3d at 279. Moreover, the conclusion must link
to the facts. See Wright, 79 S.W.3d at 52. Dr. Fredric’s report fails in this regard. Irrespective of
whether either doctor would have timely diagnosed Joseph’s cancer or referred him to an
oncologist, the report does not identify the course of treatment that Appellants or an oncologist
should have provided, and he does not explain how that treatment would have led to a different
outcome—eliminating Joseph’s ―unnecessary pain and suffering.‖ See Hardy v. Marsh, 170
S.W.3d 865, 870 (Tex. App.—Texarkana 2005, no pet.) (holding failure to consult with specialist
surgeon without explaining connection between consultation and outcome, or discussion as to
what additional procedures or treatment would have been provided by surgeon was inadequate as
to causation under Chapter 74). Consequently, Betty failed to establish that Appellants’ failure to
timely diagnose Joseph’s condition, refer him to an oncologist, or provide ―appropriate pain
treatment‖ caused Joseph to undergo unnecessary pain and suffering.
Adequacy of Dr. Fredric’s Causation Opinion—Lakeland Medical Associates and Tyler
Inpatient Management Specialists
Betty argues that staff at Lakeland Medical Associates failed to ―immediately notify Dr.
Carney of the critical lab results‖ from the lab tests conducted on September 9, 2010. Because he
started receiving the ―appropriate treatment‖ on September 15, 2010, her argument continues, this
delay caused six days of unnecessary pain and suffering. Again, Dr. Fredric does not offer any
explanation of what the ―adequate treatment‖ would have entailed, or how this treatment would
have differed from the pain medication that Joseph had been receiving. Consequently, we have
only the unsupported conclusion that such treatment would have resulted in six fewer days of
unnecessary pain had these critical lab results been immediately communicated to Dr. Carney.
As for Tyler Inpatient Management Specialists, Dr. Fredric’s report is devoid of any
allegation that it breached an independent duty, or caused any harm to Joseph to support a direct
10
liability claim. See RGV Healthcare Assocs., Inc. v. Estevis, 294 S.W.3d 264, 269 (Tex. App.—
Corpus Christi 2009, pet. denied) (holding direct liability claims against healthcare provider
facility should have been dismissed from suit when report implicated only conduct of facility’s
employees and did not establish basis for direct liability claims).
To the extent that the claims against Tyler Inpatient Management Specialists and Lakeland
Medical Associates are vicarious in nature based on the employment or agency status of Dr.
Conner and Dr. Carney, a report that adequately implicates the actions of Dr. Conner and Dr.
Carney is sufficient. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008)
(per curiam). As we have stated, the report fails to establish causation against either Dr. Conner
or Dr. Carney. Consequently, Tyler Inpatient Management Specialists’ and Lakeland Medical
Associates’ objections should have been sustained.
Appellants’ sole issue is sustained.
DISPOSITION
Having sustained Appellants’ sole issue, we reverse the trial court’s order overruling
Appellants’ objections and denying Appellants’ motions to dismiss, and remand for a
determination of whether Betty should be afforded the opportunity to amend her expert report to
satisfy Section 74.351.7 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); Leland v. Brandal,
257 S.W.3d 204, 207–08 (Tex. 2008); Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 757 (Tex.
App.—El Paso 2011, no pet.) (noting that trial court is in best position to grant thirty day
extension after court of appeals reverses and remands trial court’s order denying dismissal of
claim for failure to comply with expert report requirements).
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 13, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
7
We note that the trial court should err on the side of granting the additional time and must grant it if the
deficiencies are curable. See Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011).
11
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 13, 2014
NO. 12-13-00024-CV
DONALD CARNEY, M.D. AND LAKELAND MEDICAL
ASSOCIATES AND WILLIAM CONNER, M.D. AND
TYLER INPATIENT MANAGEMENT SPECIALISTS, P.A.,
Appellants
V.
BETTY HOLDER, INDIVIDUALLY AND AS
EXECUTRIX OF THE ESTATE OF JOE HOLDER,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. 2012B-0860)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the order of the court below, it is ORDERED, ADJUDGED and DECREED by this court that
the trial court’s order overruling Appellants’ objections and denying Appellants’ motions to
dismiss be reversed and the cause remanded to the trial court for further proceedings for a
determination of whether Betty Holder should be afforded the opportunity to amend her expert
report to satisfy Section 74.351 of the Texas Civil Practice and Remedies Code and that all costs
of this appeal are hereby adjudged one-half against the Appellants, DONALD CARNEY, M.D.
AND LAKELAND MEDICAL ASSOCIATES AND WILLIAM CONNER, M.D. AND
TYLER INPATIENT MANAGEMENT SPECIALISTS, P.A., and one-half against the
Appellee, BETTY HOLDER, in accordance with the opinion of this court; and that this decision
be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.