Careflite and Nathan Taton v. Jerold Taylor ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00373-CV
___________________________
CAREFLITE AND NATHAN TATON, Appellants
V.
JEROLD TAYLOR, Appellee
On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-296553-17
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. Introduction
Appellants, Careflite and Nathan Taton, bring this interlocutory appeal from
the trial court’s order denying their motion to dismiss the claim Appellee Jerold
Taylor has asserted against them. In a single issue, Careflite and Taton contend that
Taylor’s claims against them are health care liability claims governed by Texas Civil
Practice and Remedies Code chapter 74 and that Taylor failed to comply with
chapter 74’s expert report requirements. We agree with Careflite and Taton and
reverse the trial court’s order denying their motion to dismiss and remand this case to
the trial court for further proceedings in accordance with this opinion.
II. BACKGROUND
A. Pleadings
On November 28, 2017, Taylor filed his original petition against Careflite and
Taton as well as Baylor Scott & White Health d/b/a The Heart Hospital Baylor
Denton (Baylor).1 In the petition, Taylor alleges that he underwent a coronary artery
bypass graft at Baylor on December 1, 2015. Baylor arranged for Taylor to be
transferred to Select Rehab on December 5, 2015, for additional physical therapy and
recovery. Careflite was hired to transport Taylor, and Taton,2 who was alleged to be
1
The allegations against Baylor are not at issue in this appeal.
2
The petition erroneously states that “Defendant, Nathan Taylor[,] was
scheduled to pick up Plaintiff[.]” (emphasis added).
2
an employee or agent of Careflite, was scheduled to pick up Taylor at Baylor on
December 5, 2015.
According to the petition, Taylor was discharged from Baylor in a wheelchair,
with his personal belongings placed in a plastic bag and hung on the back of the
wheelchair. Careflite dispatched Taton to transport Taylor with a handicap accessible
van. After accepting him into his care, Taton placed Taylor in his wheelchair in the
vehicle. Taylor asserts that Taton failed to remove the bag of personal possessions
from the back of the wheelchair and failed to use straps to secure the wheelchair in
place or to secure Taylor in the wheelchair prior to transport. When Taton drove
onto the highway, Taylor’s wheelchair tipped over backward. Taylor allegedly struck
his head and slid backward on the floor of the van.
In his petition, Taylor alleges that Taton:
negligently, carelessly, and recklessly disregarded and breached his legal
duty to exercise ordinary care in one or more of the following ways:
(1) Failing to properly secure [Taylor’s] wheelchair in the vehicle;
(2) Failing to properly secure [Taylor] in the wheelchair for transport;
(3) Failing to remove the bag of personal possession[s] hung on the back
of the chair to ensure that the [wheelchair] was properly balanced for
transport; (4) Failing to use a vehicle adequate to the needs of [Taylor]
given his current health condition; and (5) Failing to operate the vehicle
at a reasonably safe speed to ensure the safety of [Taylor] as his
passenger.
With regard to Careflite, Taylor asserts that it “had a duty to hire, supervise,
train, and retain competent employees[,]. . . [and] a duty to ensure that [Taton] was
instructed in how to secure a wheelchair for transport, and how to drive a vehicle with
3
a wheelchair in it without the wheelchair tipping over backwards.” In addition, Taylor
alleged that Careflite “had a duty to ensure that [Taton] was securing wheelchairs and
passengers appropriately for transport and following proper safety guidelines for the
transport of patients in wheelchairs.” In addition to stating that Careflite was
vicariously liable for the actions of Taton “under the doctrine of Respondeat Superior,”
Taylor contended that the negligence of Careflite, Taton and Baylor “separately
and/or collectively” constituted a direct and proximate cause of his injuries and
damages.
Careflite and Taton responded with their answer on January 8, 2018, which
included a general denial and numerous affirmative defenses. They specifically
“invoke[d] their right to rely on all defenses, protections, provisions, and limitations
authorized by Texas Civil Practice & Remedies Code, Chapter 74, Subchapter G, in
full.”
B. Expert Report
On April 17, 2018, Taylor filed his “Plaintiff’s Amended Notice of Filing
Amended Expert Report Pursuant to Tex. Civ. Prac. & Rem. Code 74.351(a).”3
Attached to the filing were the report and credentials of Robert C. Krause, M.S.,
EMT-P. Krause is a licensed paramedic. Krause’s report is four pages, and his
credentials cover ten pages.
Taylor had filed the original report on February 23, 2018. After objections
3
were filed, Taylor amended the original report.
4
After setting out his credentials and some background facts in the report,
Krause states his “opinion” as follows:
The care and transport of a patient safely and securely is a
fundamental function of a medical transport company. A fundamental
standard of care in healthcare is to do no harm. The phrase is
sometimes recorded as primum nil nocere. Non-maleficence, which is
derived from the maxim, is one of the principal precepts of bioethics of
all healthcare providers and is a fundamental principle throughout the
world. Failing to properly secure both the patient and the conveyance
device, in this case a wheelchair, is below the standard of care of
ensuring safe transportation. The expectation is a patient such as Mr.
Taylor[] is transported safely, without falling or being toppled out of
their [wheelchair] while in a moving vehicle. Falling backwards in a
wheelchair[] while in the wheelchair van is unacceptable and falls below
the standard of care of ensuring safe transportation. Section 37.173 of
the DOT ADA regulations requires operators to train their personnel to
properly assist and treat individuals with disabilities with sensitivity[] and
to operate vehicles and equipment safely. Failing to properly secure
both the wheelchair and Mr. Taylor with the use of a lap belt and
shoulder belt is below the standard of care of ensuring safe
transportation. Section 38.23(d) of the DOT ADA regulations requires
all ADA-compliant buses and vans to have a two-part securement
system, one to secure the wheelchair, and a seat belt and shoulder
harness for the wheelchair user. The Careflite driver, Nathan Taton,
failed to ensure Mr. Taylor was safely secured to the wheelchair and the
wheelchair van, and as a result of his failures, Mr. Taylor flipped over
backwards while being transported. This carelessness and inattention to
detail for the safety and security of Mr. Taylor, on the part of Nathan
Taton[,] resulted in an additional visit to an emergency department for
Mr. Taylor. It is my opinion this fall was foreseeable[] (not securing a
wheelchair could fall) and preventable (properly securing [wheelchair]
would have prevented the flipping backwards).
C. Objections and Motion to Dismiss
In response, Careflite and Taton filed their objections to the amended report
on May 8, 2018, and their motion to dismiss on May 10, 2018. In the motion, they
5
argue that Taylor “wholly ignored the critical statutory requirement to serve a report
that addressed the issue of causation.” Careflite and Taton contend that “a licensed
physician who is otherwise qualified under the rules of evidence must opine on the
issue of causation.” In addition, they urge that “[n]on-physician emergency medical
technicians, paramedics, and registered nurses are statutorily disqualified from
offering such opinions.”4
D. Response to Objections and Motion to Dismiss
In his response to the objections, Taylor makes two arguments. First, Taylor
contends that “this is a general negligence or safety standards based claim” and does
not fall within the purview of section 74.351. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351. He argues that he should not be held to a higher burden to provide an
expert report simply because Careflite and Taton are healthcare providers; the
standard should be no higher than it would be if “the transportation was on a city bus,
taxicab, or ride share operator, like Uber or Lyft.”
Second, he argues that the medical records should be considered in addition to
the report by Krause. According to Taylor, his treating physician, Dr. James Guess,
states multiple times in his records that the “[m]echanism of injury is as he was sitting
in his wheelchair[,] it turned over.” Therefore, Taylor contends that, in determining
4
Careflite and Taton also note that they pointed out these same deficiencies in
response to the original report. And, at that time, Taylor still had time to provide an
additional report on causation that was authored by a licensed physician.
6
whether he complied with the reporting requirements of section 74.351, the court can
also consider Taylor’s other medical records.
E. The Trial Court’s Ruling
On September 7, 2018, the trial court held a hearing on the objections to
Krause’s report and motion to dismiss. At the conclusion of the hearing, the trial
court stated that the expert report was “sufficient against Careflite.” On November 2,
2018, the trial court signed an order denying the motion to dismiss and overruling the
objections to the expert report of Krause as to Careflite and Taton.5 Thereafter,
Careflite and Taton filed this interlocutory appeal.
III. DISCUSSION
A. Law Governing Medical-Expert Reports
The Texas Medical Liability Act (Act) requires a claimant pursuing a “health
care liability claim” to timely serve an adequate expert report. See Id. § 74.351(a)
(requiring service of an adequate expert report within 120 days after the original
answer is filed, absent a statutorily permitted exception). Failure to do so requires
dismissal with prejudice. Id. § 74.351(b)(2); see also Scott and White v. Weems, No. 17-
0563, 2019 WL 1867916, at *1 (Tex. April 26, 2019). In the healthcare-liability
5
Prior to entering the order denying the motion to dismiss of Careflite and
Taton, the trial court entered an order granting the motion. Subsequently, the trial
court entered an order vacating the order of dismissal.
7
context, an expert report is required to ensure that only claims with “potential merit”
proceed. Samlowski v. Wooten, 332 S.W.3d 404, 410. (Tex. 2011).
The Act defines a health care liability claim as:
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which proximately
results in injury to or death of a claimant, whether the claimant’s claim or
cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13). Health care liability claims must
satisfy the following three elements: (1) a physician or health care provider must be a
defendant; (2) the claim or claims at issue must concern treatment, lack of treatment,
or a departure from accepted standards of medical care, or health care, or safety or
professional or administrative services directly related to health care; and (3) the
defendant’s act or omission complained of must proximately cause the injury to the
claimant. Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724, 725 (Tex. 2013) (quoting
Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179-80 (Tex. 2012)).
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;
8
(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.
Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b)(1)–(3).
An expert who gives an opinion on causation must meet all of the following
qualifications: (1) the expert must be a licensed physician; and (2) the expert must be
otherwise qualified to give an opinion on the causal relationship under the Texas
Rules of Evidence. Id. § 74.403(a). A “physician” is a person who is licensed to
practice medicine in one or more states in the United States. Id. § 74.401(g)(1). An
expert witness may be qualified to opine on one issue but not another. Id. § 74.351(i);
In re Buster, 275 S.W.3d 475, 477 (Tex. 2008).
B. Standard of Review
A trial court’s decision whether to dismiss a health care liability claim based on
a plaintiff’s failure to comply with section 74.351’s expert report requirement is
reviewed for abuse of discretion. Tex. Civ. Prac. & Rem. Code Ann. § 74.351; see, e.g.,
Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); see also Van Ness v.
ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). Under this standard, we
defer to the trial court’s factual determinations if supported by the evidence but
review its legal determinations de novo. See Van Ness, 461 S.W.3d at 142. An abuse
occurs if the trial court rules without reference to guiding rules or principles or
9
renders a decision lacking support in the facts or circumstances of the case. See
Samlowski, 332 S.W.3d at 410.
When the issue presented requires statutory interpretation or a determination
of whether chapter 74 applies to a claim, that is a question of law to which appellate
courts apply a de novo standard of review. See Stockton v. Offenbach, 336 S.W.3d 610,
615 (Tex. 2011). Whether a claim is a health care liability claim under the Act is a
question of law we review de novo. Christus Health Gulf Coast v. Carswell, 505 S.W.3d
528, 534 (Tex. 2016).
C. Analysis
1. Whether This is a Health Care Liability Claim
Taylor does not dispute that Careflite and Taton qualify as “health care
providers.” In addition, he “agrees that there is a causal relationship between the
alleged act or omission and the complained of injury which satisfies the third
element.” Rather, he disputes whether section 74.351’s second element—whether the
claim concerns treatment, lack of treatment, or a departure from accepted standards
of medical care, or health care, or safety or professional or administrative services
directly related to health care—is met.
Careflite and Taton contend that “Taylor’s claim involves an alleged departure
from accepted standards of health care because Taylor was a patient in and under the
care of Careflite and Taton at the time of the alleged incident.” Alternatively, they
argue that “Taylor’s claim involves an alleged departure from accepted standards of
10
safety because the underlying facts and Taylor’s allegations demonstrate that a
substantive nexus exists between the allegedly violated safety standards and the
provision of health care.”
The determination of whether a cause of action is a health care liability claim is
based on an evaluation of the facts alleged and the underlying nature of the claim.
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 847, 851 (Tex. 2005). “A cause of
action alleges a departure from accepted standards of medical care or health care if the
act or omission complained of is an inseparable part of the rendition of medical
services.” Id. at 848. If the essence of the suit is a health care liability claim, a party
cannot avoid the requirements of section 74.351 through artful pleading. Id. at 851.
At issue here is the nature of Taylor’s cause of action, a phrase that refers to
the “fact or facts entitling one to institute and maintain an action, which must be
alleged and proved in order to obtain relief.” Scott and White, 2019 WL 1867916, at *4
(citing In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) (quoting A.H. Belo Corp. v. Blanton,
133 Tex. 391, 129 S.W.2d 619, 621 (1939))). We focus on whether or not the
gravamen of Taylor’s complaint is a “claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative services
directly related to health care.” Id. (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 74.001(a)(13) and Christus Health, 505 S.W.3d at 534).
Careflite and Taton argue that the underlying factual background of Taylor’s
December 5, 2015, medical transport, as set out in his original petition, states a claim
11
premised upon departures from accepted standards of health care and departures
from accepted standards of safety. In his petition, Taylor alleges that Careflite “failed
to dispatch an appropriate vehicle to transport [him] commensurate with his health
status three days after having open heart surgery.” In addition, Taylor states that
Taton “accepted [Taylor] into his care, although he should have recognized that
[Taylor’s] health condition required a higher degree of care than he and his vehicle
were equipped to provide.” And, after accepting Taylor into his care, Taton “failed to
remove the bag of personal possessions from the back of the wheelchair and failed to
use straps to secure the wheelchair in place or to secure [Taylor] in the wheelchair
prior to transport.”
At least one of our sister courts has addressed claims similar to those here and
found that they met the definition of a health care liability claim. Sherman v.
Healthsouth Specialty Hosp., Inc., 397 S.W.3d 869 (Tex. App.—Dallas 2013, pet. denied).
In Sherman, the plaintiff claimed injuries after a medical clinic employee allegedly failed
to properly secure her and her wheelchair in a van to her home. The plaintiff argued
that her “medical dealings” with the rehabilitation hospital had been completed, and
the tangential relationship “does not somehow transform a mere van ride into an
integral part of health care services.” Id. at 874. In determining the claim to be a
health care liability claim, the court pointed out that a direct connection between the
act or omission causing injury and the provision of health care is not necessary for
purposes of determining whether a claim is a health care liability claim. Id. While the
12
health care provider was not providing the plaintiff medical care or treatment at the
time its driver suddenly applied his brakes, the health care provider was still
responsible for the plaintiff’s safety during transport from the clinic to her home. Id.;
see Bain v. Capital Senior Living Corp., No. 05-14-00255-CV, 2015 WL 3958714, *4 (Tex.
App.—Dallas June 30, 2015, pet. denied) (mem. op.) (holding that claims alleging
failure to secure a claimant into her wheelchair and applying the brakes with excessive
force causing the claimant to fall from her wheelchair were health care liability claims);
see Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 395 (Tex. 2011) (holding
that the term “health care” encompasses any act or treatment performed or furnished
by a health care provider).
Similarly, we conclude that Taylor’s claims involve allegations of departures
from accepted standards of care because Taylor was a patient in and under the care of
Careflite and Taton at the time of the alleged incident. In addition, Taylor’s pleadings
allege that Careflite and Taton failed to recognize that a patient in Taylor’s medical
condition was not medically qualified to undergo a wheelchair transport and should
have instead been transported via a stretcher in a supine position. Taylor also
contends that the transport should have been completed by an ambulance unit with
the necessary medical equipment to care for a patient in Taylor’s condition. All of the
allegations involve an alleged departure from accepted standards of health care.
Taylor also relies upon Nexus Recovery Ctr. v. Mathis, 336 S.W.3d 360 (Tex.
App.—Dallas 2011, no pet.) for the proposition that his claim does not concern
13
treatment or lack of treatment as defined by the Act. However, Nexus involved
allegations of an inappropriate intimate, sexual and financial relationship between a
patient of a residential drug and alcohol treatment facility and an employee counselor
of the facility which began after the patient left the care of the treatment program. Id.
at 363. In Nexus, unlike here, the plaintiff never raised complaints related to her care
as a patient. Id. Rather, the only relationship to health care was in the sense that the
plaintiff and former employee counselor first met when the plaintiff was a patient at
Nexus. Id.
In addition, Taylor’s claims implicate duties to provide for patient safety
because a substantive nexus exists between the allegedly violated safety standards and
the provision of health care. In Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496,
502 (Tex. 2015), the supreme court set forth a list of non-exclusive considerations to
help courts determine whether there is a substantive nexus between the safety
standards allegedly violated and the provision of health care:
(1) Did the alleged negligence of the defendant occur in the course of
the defendant’s performing tasks with the purpose of protecting
patients from harm;
(2) Did the injuries occur in a place where patients might be during
the time they were receiving care, so that the obligation of the
provider to protect persons who require special, medical care was
implicated;
(3) At the time of the injury was the claimant in the process of
seeking or receiving health care;
14
(4) At the time of the injury was the claimant providing or assisting in
providing health care;
(5) Is the alleged negligence based on safety standards arising from
professional duties owed by the health care provider;
(6) If an instrumentality was involved in the defendant’s alleged
negligence, was it a type used in providing health care; or
(7) Did the alleged negligence occur in the course of the defendant’s
taking action or failing to take action necessary to comply with
safety-related requirements set for health care providers by
governmental or accrediting agencies?
Id. at 505.
Several of these factors further support our conclusion that Taylor’s claim is a
health care liability claim. For example, and similar to the facts in Bain, Taton’s
alleged misuse of the straps to secure the wheelchair in place or to secure Taylor in
the wheelchair prior to transport was a task performed with the purpose of protecting
a patient from harm. Bain, 2015 WL 3958714, at *4. And the instrumentality
involved—Taylor’s wheelchair—is the type of instrumentality used in providing
health care. Taylor’s argument that his transport by Careflite and Taton is no
different than the services provided by a taxi company or Uber or Lyft ignores his
status as a post-heart-surgery patient and disregards the status of Careflite and Taton
as licensed health care providers.
Therefore, we conclude that Taylor’s allegations not only involve departures
from accepted standards of care but also implicate duties to provide for patient safety.
15
Therefore, they are health care liability claims and are governed by the provisions of
chapter 74. Tex. Civ. Prac. & Rem. Code Ann. § 74.001 et seq.
2. Whether Medical Records Suffice for an Opinion on Causation
Taylor’s only expert report was provided by Krause. It is undisputed that he is
not a physician, but rather, as described by Taylor, “an expert in the field of EMT –
Paramedics qualified to give expert opinions on patient transport and handling.” If
Krause’s report is insufficient, Taylor argues that he has “complied with the
requirements [of chapter 74] by proffering the report of a qualified expert in
conjunction with the medical records provided in response to Requests for
Disclosures.”6 Indeed, in his response to the motion to dismiss, Taylor attached as
exhibits over one hundred pages of medical records from healthcare providers seen
on or after December 5, 2015.
However, medical records have consistently been rejected as constituting an
adequate chapter 74 expert report. See Maxwell v. Seifert, 237 S.W.3d 423, 427 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied); see also Milton v. Nguyen, No. 01-11-
00958-CV, 2012 WL 3228835, at *1 (Tex. App.—Houston [1st Dist.] August 9, 2012,
pet. denied) (mem. op.); Univ. of Tex. Med. Branch at Galveston v. Callas, 497 S.W.3d 58,
67 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). In addition, even though
6
Specifically, Taylor contends that the medical records from OrthoTexas of
Dr. James Guess and Dr. Richard Burg “state that the mechanism of Taylor’s injuries
were the incident in which his wheelchair turned over.”
16
required by section 74.351(a), no curriculum vitae of Guess or any other licensed
physician affiliated with the hundreds of pages of medical records was supplied. Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a).
While Taylor cites to Kettle v. Baylor Medical Center, 232 S.W.3d 832 (Tex. App.—
Dallas 2007, pet. denied) for his proposition that medical records can be considered in
conjunction with a report, neither Kettle nor chapter 74 allow medical records to be
substituted in place of a section 74.351 expert report. Rather, both support the
conclusion here that only an expert report by a licensed physician can satisfy the
requirements of chapter 74.
In Kettle, the plaintiffs brought a health care liability claim against a number of
health care providers. Id. at 836. To satisfy the expert report requirements of article
4590i, the predecessor statute to chapter 74, the plaintiffs served reports from an
internist/cardiologist and a registered nurse. Id. at 837–41. In addition to other
matters, both reports stated opinions on medical causation. In response to objections
to the adequacy of the reports, the Dallas court held that the registered nurse was not
qualified to testify on medical causation. Id. at 841. However the court did consider
the causation opinions included within the doctor’s report. Id. at 841–42.
In this case, unlike in Kettle, Taylor submitted only a report from a non-
physician. He did not submit a report from any physician. Moreover, the Kettle
plaintiffs did not attempt to rely upon medical records to satisfy the mandatory
minimum requirements of an expert report.
17
In addition, in deciding whether a report is compliant with chapter 74, the trial
court is to examine only the four corners of the expert’s report and may not draw
inferences or otherwise supply links in the causal chain. See Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 878 (Tex. 2001). Examining medical records outside the report does
not comply with this four-corner requirement.
Therefore, we conclude that Taylor’s allegations concern claimed departures
from accepted standards of health care and safety services directly related to health
care, and the trial court abused its discretion by denying Careflite and Taton’s motion
to dismiss. We sustain this portion of Appellants’ issue.
3. Whether Appellee is Entitled to a Thirty-Day Extension
In his brief, Taylor requests that in the event we sustain Careflite and Taton’s
issue, he be granted a thirty-day extension to remedy any deficiencies “since he filed
his reports in good faith.” In response, Careflite and Taton argue that Taylor “elected
to wholly ignore and disregard causation, one of the three mandatory elements of a
section 74.351 report, by serving a non-compliant report from a non-physician who is
statutorily disqualified from offering medical causation opinions.” Therefore, they
contend that “Taylor’s report from Krause, EMT-P was not a good faith effort
because it omitted one of the three statutory requirements,” and therefore, he is not
entitled to any extension of the section 74.351 expert report deadline. In addition, in
18
their motion to dismiss, Careflite and Taton urged that Taylor’s “purported expert
report” is “akin to no report at all.”
Section 74.351 does distinguish between a report that is timely served but
deficient and when no report is served. If a report is timely served but deficient, the
trial court may grant an extension to cure the deficiency, and no appeal lies from the
extension order. Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex. App.—Fort Worth
2017, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (“If an expert report
has not been served within the period specified by Subsection (a) because elements of
the report are found deficient, the court may grant one 30-day extension to the
claimant in order to cure the deficiency.”).
In distinguishing between a deficient report and no report, we are guided by the
supreme court’s decision in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). In
Scoresby, the court explained that when a trial court finds deficiencies within an expert
report, it should “err on the side of granting the additional time and must grant it if
the deficiencies are curable.” Id. at 549. Further, the court explained that an
individual’s “lack of relevant qualifications and an opinion’s inadequacies are
deficiencies the plaintiff should be given an opportunity to cure if it is possible to do
so.” Id.
In describing when a claim should be dismissed instead of giving an
opportunity to cure, the court stated,
19
We conclude that a thirty-day extension to cure deficiencies in an expert
report may be granted if [1] the report is served by the statutory
deadline, if [2] it contains the opinion of an individual with expertise that
the claim has merit, and if [3] the defendant’s conduct is implicated. We
recognize that this is a minimal standard, but we think it is necessary if
multiple interlocutory appeals are to be avoided, and appropriate to give
a claimant the opportunity provided by the Act’s thirty-day extension to
show that a claim has merit. All deficiencies, whether in the expert’s
opinions or qualifications, are subject to being cured before an appeal
may be taken from the trial court’s refusal to dismiss the case.
Id. at 556–57; compare Villarreal, 526 S.W.3d at 636 (holding that a “Clinical Review”
fails the minimal expert-report standard because instead of opining that a claim has
merit, its author opined that several ethical rules were violated and recommended
consultation with an attorney); Haskell v. Seven Acres Jewish Senior Care Servs., Inc.,
363 S.W.3d 754, 760 (Tex. App.—Houston [1st Dist.] 2012, no. pet.) (holding that
letters from cardiologist, neurologist and psychologist that failed to state that a claim
had merit did not constitute an expert report); Rivenes v. Holden, 257 S.W.3d 332, 339
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that expert report that
did not refer to physician by name or position and that offered no opinions
concerning the physician’s conduct did not implicate that physician’s conduct);
Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex. App.—Austin 2007, no pet.) (concluding
that if a report fails to address a defendant physician, it constitutes no report and an
extension may not be granted); Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex. App.—
San Antonio 2006, no pet.) (concluding that report that did not name doctor or
20
discuss how the treatment did not meet standard of care did not constitute good-faith
effort).
In urging that Taylor is not entitled to an extension, Careflite and Taton also
note that they put Taylor on notice of the “fatal omission of causation opinions from
a licensed physician during the prescribed 120 day period,” yet he still did not comply.
However, as this Court has previously noted, “[P]enalizing a plaintiff for declining to
fix a report’s alleged deficiencies before a trial court rules on objections to the report
would be unreasonable and contrary to the purpose of section 74.351(c), which is to
grant an opportunity to cure after ‘elements of the report are found deficient.’” Gower
v. Univ. Behavioral Health of Denton, No. 02-16-00245-CV, 2017 WL 3081153, at *12
(Tex. App.—Fort Worth July 20, 2017, no pet.) (mem. op.) (quoting Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(c)).
Applying Scoresby’s standards here, we conclude that the trial court is in the best
position to decide whether a cure for an inadequate expert report is feasible. Protzman
v. Gurrola, 510 S.W.3d 640, 654–55 (Tex. App.—El Paso 2016, no pet.). Therefore, it
is appropriate to remand the case to the trial court for consideration of whether the
deficiencies in the expert report can be cured, and therefore, whether to grant an
extension of time. Id. at 655.
IV. CONCLUSION
Having agreed with Appellants Careflite and Taton that the allegations of
Appellee Taylor are health care liability claims governed by section 74.351 and that
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Taylor failed to comply with chapter 74’s expert report requirements, we reverse the
trial court’s order denying their motion to dismiss and remand this case to the trial
court for further proceedings in accordance with this opinion. See Tex. R. App. P.
43.2(d).
/s/ Dana Womack
Dana Womack
Justice
Delivered: June 27, 2019
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