Shannon Polone, P.A.-C. AND Francis R. Lonergan, M.D. v. Monica Shearer ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-325-CV
SHANNON POLONE, P.A.-C. AND APPELLANTS
FRANCIS R. LONERGAN, M.D.
V.
MONICA SHEARER APPELLEE
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
In these accelerated, interlocutory appeals, Appellants Shannon Polone,
P.A.-C. and Francis R. Lonergan, M.D. appeal the trial court’s orders denying
their motions to dismiss the health care liability claims of Appellee Monica
Shearer. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(9) (Vernon 2008).
In two issues, Polone argues that Shearer failed to comply with civil practice
and remedies code section 74.351 because the medical expert reports that she
filed are inadequate and fail to show that the authoring experts are qualified to
offer an expert opinion regarding the standard of care applicable to a
physician’s assistant. See id. § 74.351(b), (l) (Vernon Supp. 2008). Dr.
Lonergan also argues that Shearer failed to file an adequate expert report in
compliance with civil practice and remedies code section 74.351, but he
contends in two issues that the opinions of the authoring experts are
speculative and conclusory and that the experts failed to adequately address
Shearer’s specific claims. See id. We affirm in part and reverse and remand
in part.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Shearer filed a medical malpractice lawsuit against Dr. Lonergan and
Polone in January 2008. She alleged that she experienced symptomatic breast
problems, including asymmetric breasts and breast pain, at the end of 2004.
In November 2005, Polone examined Shearer after Shearer complained of
breast pain and dimpling of the skin. A mammogram and sonogram were
performed, but the results did not show a definable mass. The radiologist
classified the findings as “BIRADS 2” and recommended a followup
2
mammogram in one year.1 Shearer saw Dr. Lonergan through 2007, during
which time she allegedly continued to complain of “breast problems.” Dr.
Adrienne Martin evaluated Shearer in late 2007, and tissue excised from
Shearer’s left breast was diagnosed as lobular carcinoma. Shearer then
underwent a bilateral mastectomy.
Shearer alleged in her original petition that Polone negligently failed “to
closely follow up the findings after the mammogram in 2005” and “to timely
recognize the possibility of malignancy in [Shearer].” Shearer alleged that Dr.
Lonergan was negligent in failing “to closely follow up the findings after the
mammogram in 2005,” “to perform a fine needle aspiration on the mass in
question,” “to refer [Shearer] to a surgeon for follow up,” and “to timely
recognize the possibility of malignancy in [Shearer].”
Shearer attached to her petition the medical expert report of Mark D.
Akin, M.D. She later filed a second expert report prepared by Gerald H. Sokol,
M.D. Both Polone and Dr. Lonergan filed objections to the adequacy of the
expert reports and moved to dismiss Shearer’s health care liability claims. The
1
… According to Polone, the results of the diagnostic tests indicated that
the mass was benign.
3
trial court overruled the objections and denied the motions to dismiss. This
interlocutory appeal followed.2
III. S TANDARD OF R EVIEW
We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v.
Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied).
A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner or without reference to any guiding rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986). Merely because a trial court may decide a
matter within its discretion in a different manner than an appellate court would
in a similar circumstance does not demonstrate that an abuse of discretion has
occurred. Id. But a trial court has no discretion in determining what the law
is or in applying the law to the facts, and thus “a clear failure by the trial court
to analyze or apply the law correctly will constitute an abuse of discretion.”
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
2
… See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)
(authorizing appeal from trial court order determining that expert report was
adequate and denying motion to dismiss).
4
IV. C HALLENGES TO E XPERT R EPORTS
Civil practice and remedies code section 74.351 provides that, within 120
days of filing suit, a plaintiff must serve expert reports for each physician or
health care provider against whom a liability claim is asserted. Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a). An expert report is a written report by an
expert that provides a fair summary of the expert’s opinions regarding 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.
§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may
file a motion challenging the report’s adequacy. See id. § 74.351(a), (b), (l).
A trial court must grant a motion to dismiss based on the alleged inadequacy
of an expert report only if it finds, after a hearing, “that the report does not
represent an objective good faith effort to comply with the definition of an
expert report” in the statute. Id. § 74.351(l).
The information in the report does not have to meet the same
requirements as evidence offered in a summary judgment proceeding or at trial,
and the report need not marshal all the plaintiff’s proof, but it must include the
expert’s opinions on each of the elements identified in the statute—standard of
care, breach, and causation. See Am. Transitional Care Ctrs. v. Palacios, 46
5
S.W.3d 873, 878–79 (Tex. 2001); Thomas v. Alford, 230 S.W.3d 853, 856
(Tex. App.—Houston [14th Dist.] 2007, no pet.). In detailing these elements,
the report must provide enough information to fulfill two purposes if it is to
constitute a good-faith effort: (1) the report must inform the defendant of the
specific conduct the plaintiff has called into question and (2) the report must
provide a basis for the trial court to conclude that the claims have merit.
Palacios, 46 S.W.3d at 879; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855,
859 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A report does not fulfill
these two purposes if it merely states the expert’s conclusions or if it omits any
of the statutory requirements. Palacios, 46 S.W.3d at 879. A claimant is
allowed to utilize separate expert reports to satisfy any requirement of section
74.351. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i).
In assessing the report’s sufficiency, the trial court may not draw any
inferences; it must rely exclusively on the information contained within the
report’s four corners. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002); Palacios, 46 S.W.3d at 878. However, section 74.351 does not
prevent experts, as opposed to courts, from making inferences based on
medical history. Benish v. Grottie, No. 02-08-00148-CV, 2009 WL 417264,
at *6 (Tex. App.—Fort Worth Feb. 19, 2009, no pet. h.); see also Tex. R. Evid.
703 (providing that an expert may draw inferences in a particular case); Tex.
6
R. Evid. 705 (providing that an expert may testify in terms of opinions and
inferences).
A. Standard of Care and Breach
In part of her first issue, Polone argues that Dr. Akin’s and Dr. Sokol’s
reports are inadequate because the reports fail to set forth the specific,
applicable standard of care for a physician’s assistant. She argues that Dr.
Akin’s report sets forth one “universal” standard of care for both physicians and
physician’s assistants but that it fails to state why this is appropriate. She
contends that Dr. Sokol’s report also treats the standard of care for a
physician’s assistant and a physician as one and the same.
An expert report may not assert that multiple defendants are all negligent
for failing to meet the standard of care without providing an explanation of how
each defendant specifically breached the standard and how that breach caused
or contributed to the cause of injury. Taylor v. Christus Spohn Health Sys.
Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); see
Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.—San Antonio 1999, pet.
denied) (stating that the report must specifically refer to the defendant and
discuss how that defendant breached the applicable standard of care). Just as
an expert report must provide an explanation of how each defendant specifically
breached the standard of care, the expert report must set forth the applicable
7
standard of care for each defendant. See Doades v. Syed, 94 S.W.3d 664,
671–72 (Tex. App.—San Antonio 2002, no pet.) (holding expert report
inadequate because it failed to set forth the standard of care for each defendant
individually and contained mere conclusions regarding breach and causation);
Rittmer v. Garza, 65 S.W.3d 718, 722–23 (Tex. App.—Houston [14th Dist.]
2001, no pet.) (reasoning that expert report was inadequate because it lacked
specificity as to the standards of care applicable to the surgeries performed on
plaintiff).
Dr. Akin’s report identified the “Specific Acts or Omissions of Medical
Care” committed by Polone as (1) failing to adequately evaluate and manage a
breast mass and (2) failing to recognize that mammography and breast
sonography are not conclusive tests for breast cancer. Under the first act or
omission, Dr. Akin stated in relevant part as follows:
The standard of care for the evaluation of a breast mass is to
obtain a thorough history, perform an adequate breast exam, and
obtain appropriate diagnostic imaging procedures. When this
evaluation yields findings that could be consistent with a breast
cancer, either close follow-up or surgical evaluation is mandatory.
Under the second act or omission, Dr. Akin stated as follows:
The standard of care for interpretation of mammography and breast
sonography is to recognize that these tests are not conclusive, and
that patient management cannot be based exclusively upon these
radiologic findings. PA Pa[l]one relied on the negative mammogram
and sonogram findings as evidence that Monica’s breast mass was
8
not cancer, even in spite of progressive growth of the breast mass
and associated skin changes. In light of the well-published
evidence that not all breast cancers can be identified by these
radiologic procedures, this falls below the standard of care for the
interpretation of mammography and breast sonography.
Regarding Dr. Lonergan, Dr. Akin’s report identified the “Specific Acts or
Omissions of Medical Care” committed by Dr. Lonergan as the same two
“Specific Acts or Omissions of Medical Care” committed by Polone. And as he
did with Polone, under the first act or omission, Dr. Akin stated in relevant part
as follows:
The standard of care for the evaluation of a breast mass is to
obtain a thorough history, perform an adequate breast exam, and
obtain appropriate diagnostic imaging procedures. When this
evaluation yields findings that could be consistent with a breast
cancer, either close follow-up or surgical evaluation is mandatory.
And under the second act or omission, Dr. Akin stated as follows:
The standard of care for interpretation of mammography and breast
sonography is to recognize that these tests are not conclusive, and
that patient management cannot be based exclusively upon these
radiologic findings. Dr. Lonergan relied on the negative
mammogram and sonogram findings as evidence that Monica’s
breast mass was not cancer, even in spite of progressive growth
of the breast mass and associated skin changes. In light of the
well-published evidence that not all breast cancers can be identified
by these radiologic procedures, this falls below the standard of care
for the interpretation of mammography and breast sonography.
Although Dr. Akin’s report sets forth what he opines to be the applicable
standards of care for both Polone and Dr. Lonergan regarding evaluation of a
9
breast mass and interpretation of mammography and breast sonography, the
standards of care that he identified are identical. Because the report does not
delineate between the standard of care applicable to a physician’s assistant and
the standard of care applicable to a physician, the report sets forth but one
standard of care applicable to both Polone and Dr. Lonergan. And because only
one standard of care is set forth, the report does not—as Polone points
out—explain how or why it is the responsibility of Polone and not Dr. Lonergan,
the treating physician, to order diagnostic tests or make a referral; at what point
the duty to order additional testing becomes the duty of the physician; or why
or whether it is not always the duty of the physician and not the physician’s
assistant to perform such tasks. In other words, the report does not specifically
identify the particular standard of care applicable to Polone. Although the
standards of care might be the same for both Polone and Dr. Lonergan, the
report does not specifically state as much. Because the report does not
articulate that the standards of care are the same, the report required the trial
court to impermissibly infer that Polone and Dr. Lonergan shared identical
standards of care applicable to evaluation of a breast mass and interpretation
of mammography and breast sonography, which may or may not be correct,
considering the information contained only within the four corners of the report.
10
See Wright, 79 S.W.3d at 52 (stating that trial court may not draw inferences
regarding information contained in expert report).
Dr. Sokol’s report sets forth in a single paragraph what he opines to be
the standard of care for the diagnosis and treatment of women with suspected
breast cancer, stating as follows:
STANDARD OF CARE
As a result of my background, training, and clinical experience in
the treatment of women with suspected breast cancer, I am
familiar with the standards of care for the diagnosis and treatment
of such patients. The standard of care for a patient with a palpable
mass and skin dimpling is to perform a fine needle aspiration of the
lump and to refer to a breast surgeon.
Dr. Sokol’s report sets forth a single standard of care for both Polone and Dr.
Lonergan instead of identifying the specific standard of care applicable to each.
See Palacios, 46 S.W.3d at 880 (“Whether a defendant breached his or her
duty to a patient cannot be determined absent specific information about what
the defendant should have done differently.”); see also Doades, 94 S.W.3d at
671–72. Dr. Sokol’s report is deficient even when considered with Dr. Akin’s
report.
We hold that the trial court abused its discretion by denying Polone’s
motion to dismiss on the ground that Dr. Akin’s and Dr. Sokol’s expert reports
were deficient for failing to adequately set forth the applicable standards of
11
care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b), (l), (r)(6). We
sustain this part of Polone’s first issue.
In another part of her first issue, Polone contends that Dr. Akin’s report
is inadequate regarding the element of breach. She specifically argues that Dr.
Akin’s report does not explain why it is a breach of the standard of care for a
physician’s assistant to disregard the diagnostic tests performed (because,
according to Polone, the results indicated that the mass was benign). Under
the failure to adequately evaluate and manage a breast mass “Specific Act[] or
Omission[] of Medical Care,” Dr. Akin elaborated on the mandatory “close
follow-up or surgical evaluation” standard of care and stated, “Even though a
diagnostic mammogram and sonogram were performed and reported as BIRADS
2, appropriate management of a palpable breast mass with skin dimpling would
have included either fine needle aspiration of the mass or referral to a breast
surgeon.” [Emphasis added.] Thus, Dr. Akin explains exactly why it is a breach
of the standard of care for a physician’s assistant to disregard diagnostic tests
resulting in BIRADS 2: because “appropriate management” of a palpable breast
mass with skin dimpling calls for fine needle aspiration or referral to a breast
surgeon. We overrule this part of Polone’s first issue.
12
B. Causation
In another part of her first issue, Polone argues that Dr. Akin’s and Dr.
Sokol’s reports are deficient with regard to causation. She contends that the
reports fail to set forth how her alleged breaches of the standard of care
resulted in a delay of the diagnosis and treatment of Shearer’s breast cancer,
how the alleged delay caused more damages and injury than would have
occurred absent the alleged breaches of the standard of care, and how but for
the alleged breaches of the standard of care, Shearer would not have been
injured. Dr. Lonergan argues in his first issue that the reports are speculative
and conclusory.
In fulfilling the dual purposes of the expert report, the expert must explain
the basis of his statements and link his conclusions to the facts. Wright, 79
S.W.3d at 52. The report must not be conclusory in its explanation of
causation. Id. at 53; Palacios, 46 S.W.3d at 879.
Dr. Akin’s report states in part as follows:
It is my professional opinion that Monica Shearer’s breast cancer
was present for at least 22 months prior to biopsy confirmation,
and the delay in diagnosis was a direct consequence of the
following individuals failing to meet the standards of medical care:
....
It is my professional medical opinion that the diagnosis of Monica’s
breast cancer was delayed for 22 months. During this time frame
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there is documented evidence of progressive growth and
development of her breast cancer. Within reasonable medical
probability, Monica’s breast cancer would have been timely
diagnosed if PA Polone and Dr. Lonergan had met the standards of
care for the evaluation and management of a breast mass. This
failure to meet the standard of care has increased Monica’s risk of
metastatic breast cancer and subsequent morbidity and mortality,
and constitutes medical negligence. [Emphasis added.]
Dr. Sokol’s report states in relevant part:
It is my opinion that, more probably than not, the delay in diagnosis
of the breast cancer resulted in injury or damage to this patient. It
is my opinion, to a degree of medical probability, that Ms. Shearer’s
breast cancer could have been treated, if timely diagnosed, without
the necessity of mastectomies and as likely her prognosis was
worsen[ed] by delay of diagnosis as well.
The record demonstrates that Shearer is suing Polone and Dr. Lonergan
for damages resulting from their alleged negligence in failing to timely diagnose
Shearer’s breast cancer. Dr. Akin addresses causation in his report when he
opines that there has been an increase in Shearer’s (1) risk of metastatic breast
cancer and (2) subsequent morbidity and mortality as a result of Polone and Dr.
Lonergan’s alleged failure to meet the applicable standards of care. Stated
otherwise, but for Polone and Dr. Lonergan’s failure to meet the accepted
standards of care regarding evaluation and management of a breast mass and
interpretation of mammography and breast sonography, Shearer would not have
experienced an increase in the risk of metastatic breast cancer and morbidity
and mortality. According to the plain language of the report, Dr. Akin does not
14
opine that Shearer would not have a risk of metastatic cancer, morbidity, and
mortality in the absence of Polone’s and Dr. Lonergan’s breaches of the
standard of care; he only opines that their failure to meet the standards of care
increased those risks. This is not a conclusory opinion. Cf. Wright, 79 S.W.3d
at 53 (reasoning that expert report was conclusory when it stated that the
plaintiff might have had “the possibility of a better outcome” without explaining
how defendant’s conduct caused injury to plaintiff).
Dr. Sokol similarly contends that if timely diagnosed, Shearer’s breast
cancer could have been treated without the necessity of mastectomies. In
other words, but for Polone and Dr. Lonergan’s failure to meet the accepted
standards of care for a patient with a palpable mass and skin dimpling, Shearer
would not have had to undergo treatment for her condition through
implementation of mastectomies.
Dr. Akin’s report and Dr. Sokol’s report thus show a causal connection
between the complained-of negligent acts or omissions and the resulting injury:
but for Polone and Dr. Lonergan’s negligent acts or omissions involving the
failure to timely diagnose Shearer’s breast cancer, Shearer would not have
incurred the alleged injuries of an increased risk of metastatic breast cancer,
morbidity, and mortality and treatment of her cancer by way of mastectomies.
The reports accordingly inform Polone and Dr. Lonergan of the specific conduct
15
that Shearer has called into question and provide a basis for the trial court to
conclude that the claims have merit. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 879. This is all that is required; the
information in the report does not have to meet the same requirements as
evidence offered in a summary judgment proceeding or at trial. See Palacios,
46 S.W.3d at 878–79. Consequently, in the context of examining causation,
the reports are sufficient to represent an objective good-faith effort to comply
with the definition of an expert report in civil practice and remedies code
section 74.351(r)(6). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l),
(r)(6).3 We hold that the trial court did not abuse its discretion by denying
Polone’s and Dr. Lonergan’s motions to dismiss on this ground. We overrule
this part of Polone’s first issue and Dr. Lonergan’s first issue.
C. Qualifications
In her second issue, Polone argues that Dr. Akin’s and Dr. Sokol’s reports
“fail to show that they are qualified to testify regarding the standard of care
applicable to a physician’s assistant.”
An expert providing opinion testimony regarding whether a health care
provider departed from the accepted standards of health care must satisfy the
3
… Dr. Lonergan additionally makes some type of comparative
responsibility argument. It is unpersuasive. See Tex. R. App. P. 38.1(h).
16
requirements set forth in section 74.402. Id. § 74.351(r)(5)(B). Section
74.402 provides in part as follows:
(b) In a suit involving a health care liability claim against a health
care provider, a person may qualify as an expert witness on the
issue of whether the health care provider departed from accepted
standards of care only if the person:
(1) is practicing health care in a field of practice that involves
the same type of care or treatment as that delivered by the
defendant health care provider, if the defendant health care
provider is an individual, at the time the testimony is given or was
practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health
care providers 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 health
care.
Id. § 74.402(b) (Vernon 2005). 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
certified by a licensing agency of one or more states of the United States or a
national professional certifying agency, or has other substantial training or
experience, in the area of health care relevant to the claim; and (2) is actively
practicing health care in rendering health care services relevant to the claim.
Id. § 74.402(c)(1)–(2). Our analysis of the qualifications of an expert under
17
section 74.351 is limited to the four corners of the expert’s report and
curriculum vitae. Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755,
758 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Dr. Akin’s report and curriculum vitae demonstrate that he has been a
licensed physician in the State of Texas since 1979, that he is board certified
by the American College of Obstetricians and Gynecologists, and that he has
been in private practice since 1983. Dr. Akin was trained in breast evaluation
during a four-year residency at Parkland Hospital in Dallas, Texas, and he has
twenty-four years of “office practice experience” in Austin, Texas, where he
has “performed breast examinations on a regular daily basis.” He states the
following:
I am qualified to render an opinion on the physician and nurse
practitioner care provided in this case because I am an expert in the
diagnosis of breast disease. I have examined thousands of women
with fibrocystic breast disease and hundred[s] of women with
breast cancer. This includes the routine practice of obtaining a
history of the patient’s breast complaints and performing a
thorough physical examination, and when necessary ordering
mammography, sonography, and/or fine needle aspiration.
Moreover, as a primary care physician, I am responsible for
assessing all of the above information and determining which
patients should be referred for further surgical evaluation and
treatment. My 24 years of clinical experience make me intimately
familiar with the accepted standards of care as applies to all
aspects of this case. [Emphasis added.]
18
Dr. Sokol’s report and curriculum vitae demonstrate that he is licensed in
Florida and Washington, D.C., and that he is board certified by the American
Boards of Internal Medicine, Radiology, Internal Medicine Sub-specialty
Oncology, Clinical Pharmacology, and Quality Assurance. He states the
following:
I am qualified to attest to standards of medical treatment for the
diagnosis and treatment of a patient presenting as Ms. Shearer did.
I am qualified to do so by virtue of the fact that I am a licensed
physician practicing in the State of Florida, specializing in Oncologic
Medicine. In my clinical practice, I have examined and treated
hundreds of patients with the presenting signs and symptoms
similar to those that Ms. Shearer presented with at the office of Dr.
Lonergan in the approximate two year period prior to her breast
surgery. I have also supervised the oncological treatment of
women with carcinoma such as that diagnosed in this patient, and
as a result of my training and experience in such treatment, I am
familiar with the effects of early diagnosis and treatment of
patients with these problems, and the effects of late diagnosis and
treatment of such patients. I have treated many patients with
lesions such as Ms. Shearer which were diagnosed in a timely
manner, and I have been involved in the care of many such patients
who did not receive the benefit of timely diagnosis and treatment.
[Emphasis added.]
Polone does not specifically challenge any section 74.402(b) requirement.
Cf. Burrell, 230 S.W.3d at 759–62 (addressing each of appellant’s specific
section 74.402 challenges). She contends that Dr. Akin’s report and Dr.
Sokol’s report fail to state whether they are qualified to testify regarding the
standard of care for a physician’s assistant. This determination, however, is
19
made by considering the information contained within Dr. Akin’s and Dr.
Sokol’s reports and curricula vitae in light of the qualification requisites in civil
practice and remedies code section 74.402(b) and (c). See id. at 758. Polone
also argues that neither Dr. Akin nor Dr. Sokol is qualified because their reports
do not state whether the standards of care described in the reports apply to a
physician, a physician’s assistant, or both. This is not an issue relevant to
whether Dr. Akin and Dr. Sokol are qualified to offer an expert opinion in this
case; it is an issue appropriately addressed when considering the adequacy of
the reports regarding standards of care, which we have already addressed
above.
We hold that the trial court did not abuse its discretion by denying
Polone’s motion to dismiss the expert reports of Dr. Akin and Dr. Sokol on the
grounds that they are not qualified to offer an expert opinion in this case. We
overrule Polone’s second issue.
D. Specificity
In his second issue, Dr. Lonergan argues that neither Dr. Akin’s report nor
Dr. Sokol’s report represents a good-faith effort to comply with the definition
of an expert report because the claims alleged in Shearer’s petition (failing to
closely follow up the findings after the mammogram in 2005, failing to perform
a fine needle aspiration on the mass in question, failing to refer Shearer to a
20
surgeon for followup, and failing to timely recognize the possibility of
malignancy in Shearer) do not match the claims addressed in the reports. We
have thoroughly reviewed Shearer’s original petition and the reports of Dr. Akin
and Dr. Sokol. In the context of whether the theories of negligence match the
claims addressed in the reports, with the exception of the standard of care
issue addressed in part of Polone’s first issue, the reports of Dr. Akin and Dr.
Sokol considered together represent an objective good-faith effort to comply
with the definition of an expert report in section 74.351(r)(6). See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(i), (l). We overrule Dr. Lonergan’s second
issue.
V. R EMAND OR D ISMISS?
Polone contends that Shearer is not entitled to a remand of the case if
this court determines that the expert reports are deficient. We disagree. Civil
practice and remedies code section 74.351(c) allows the trial court to grant one
thirty-day extension to the claimant in order to give the claimant an opportunity
to cure a report found to be deficient. Id. § 74.351(c). Here, it is this court,
not the trial court, that has sustained part of Polone’s motion to dismiss
challenging the adequacy of Dr. Akin’s and Dr. Sokol’s reports. Section
74.351(c) is not rendered meaningless simply because this court, instead of the
trial court, determines that an expert report is deficient. See Leland v. Brandal,
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257 S.W.3d 204, 205, 207–08 (Tex. 2008) (“In this health care liability claim,
we must decide whether a plaintiff may be afforded a thirty-day extension to
cure an expert report after a trial court’s ruling that the report is adequate is
reversed on appeal. We hold that when elements of a timely filed expert report
are found deficient, either by the trial court or on appeal, one thirty-day
extension to cure the report may be granted.”) (citation omitted); see also
Miranda v. Martinez, No. 13-06-00386-CV, 2007 WL 687001, at *3–4 (Tex.
App.—Corpus Christi Mar. 8, 2007, pet. denied) (mem. op.). The record does
not demonstrate that the trial court has already granted Shearer a section
74.351(c) extension. Accordingly, remand is appropriate for the trial court to
make its civil practice and remedies code section 74.351(b)—which is subject
to section 74.351(c)—determination. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(b), (c).
VI. C ONCLUSION
We affirm the trial court’s order denying Dr. Lonergan’s motion to
dismiss. Having sustained part of Polone’s first issue, we reverse the trial
court’s order denying Polone’s motion to dismiss and remand the case to the
trial court to determine whether to dismiss Shearer’s claim against Polone or to
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grant Shearer a section 74.351(c) thirty-day extension to cure the deficiency.
See id.
WILLIAM BRIGHAM
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: April 2, 2009
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