William J. Norberg Jr., M.D. v. Alexis Ameel, Pieter Ameel, and Acacia Ameel ( 2019 )

NUMBER 13-18-00165-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILLIAM J. NORBERG JR.,
M.D., ET AL., Appellants,
v.
ALEXIS AMEEL, PIETER AMEEL,
AND ACACIA AMEEL, Appellees.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellants Vangala J. Reddy, M.D., William J. Norberg, Jr., M.D., Krishna M.
Turlapati, M.D., Ana Hernandez Almeda, M.D., Frank W. Sabatelli, M.D., and Irene V.
Perez Young, M.D. appeal the trial court’s order denying their motions to dismiss a
healthcare liability claim brought by appellees Alexis Ameel, Pieter Ameel, 1 and Acacia
Ameel. In a single issue, appellants assert the trial court erred in denying their motions
to dismiss because the Ameels’ expert reports failed to comply with § 74.351 of the Texas
Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. We
reverse and remand in part and affirm in part.
I. BACKGROUND
On May 9, 2015, sixteen-year-old Alexis was admitted to the emergency
department at Doctor’s Hospital at Renaissance (DHR) after being diagnosed with deep-
vein thrombosis (DVT) at Valley Baptist Medical Center. 2 After a thirteen-day stay at
DHR, during which she was treated by appellants, Alexis was flown from DHR to Texas
Children’s Hospital (TCH) in Houston. At TCH, physicians performed a pulmonary
angiogram, and she was diagnosed with Catastrophic Antiphospholipid Syndrome (CAS)
and pulmonary emboli (PE). 3 After three weeks of undergoing multiple surgical
procedures, Alexis was discharged.
On May 8, 2017, the Ameels filed their original petition and request for disclosure,
alleging appellants were negligent in failing to detect and diagnose Alexis with PE, and
as a result of appellants’ negligence, Alexis suffered catastrophic injuries. On September
15, 2017, the Ameels filed two expert reports by Michael Tsifansky, M.D. and S. Robert
Hurwitz, M.D. in accordance with § 74.351. See id. § 74.351(a) (“In a health care liability
claim . . . a claimant shall . . . serve on [a defendant physician] one or more expert reports,
1Since the filing of this appeal, Pieter Ameel has passed away. However, appellees filed a
suggestion of death and do not believe any substitution of parties is necessary. We agree.
2 DVT is a deep-vein blood clot in the leg.
3 DVT in the lower extremities often spreads to the chest creating PE, according to Dr. Tsifansky’s
expert report.
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with a curriculum vitae of each expert listed in the report.”). The experts opined, among
other things, that appellants “failed to order, recommend, or perform a single pulmonary
CT angiogram (or invasive pulmonary angiogram) throughout [Alexis’s] stay at DHR” and
that Alexis’s pain, impairment, and multiple surgical procedures were a result of
appellants’ failures.
Appellants filed their objections to the expert reports and motions to dismiss,
contending that the expert reports did not represent a “good faith” effort to comply with
the statute. Id. § 74.351(l) (“A court shall grant a motion challenging the adequacy of an
expert report only if it appears to the court, after hearing, that the report does not represent
an objective good faith effort to comply with the definition of an expert report . . . .”). After
a hearing, the trial court overruled appellants’ objections and denied the motions to
dismiss. This interlocutory appeal followed. See id. § 51.014(a)(9) (authorizing an appeal
of an interlocutory order denying a motion to dismiss for failure to file a medical expert
report under the Texas Medical Liability Act).
II. DISCUSSION
Appellants assert the trial court erred in denying their motions to dismiss because
the expert reports: (1) “fail to set out the specific standards of care”; (2) fail to set out
“deviations from that nonspecific standard of care”; and (3) inadequately explain “the
causal relationship between appellants alleged breaches” and Alexis’s injuries. 4
Appellants also allege that the opinions in the expert reports are conclusory. Drs.
Norberg, Turlapati and Almeda additionally challenge Dr. Hurwitz’s qualifications, but we
first address whether Dr. Tsifansky’s expert report meets the statutory requirements.
4 We note that Drs. Sabatelli, Young, and Reddy only challenge this element.
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A. Chapter 74 Expert Report
In a suit against a physician, a plaintiff is required to serve on defendants one or
more expert reports within 120 days of a defendant physician’s answer that fairly
summarizes: (1) the applicable standard of care; (2) how the defendant physician failed
to meet that standard; (3) and the causal relationship between the defendant physician’s
breach and the plaintiff’s injury. Id. § 74.351(a), (r)(6); Certified EMS, Inc. v. Potts, 392
S.W.3d 625, 630 (Tex. 2013). A report that satisfies these requirements, even if as to
one theory only, entitles the plaintiff to proceed with a suit against the defendant
physician. Potts, 392 S.W.3d at 630. “The expert report requirement is a threshold
mechanism” for the trial court to conclude that the plaintiff’s claims have merit. Id. at 631.
First, the report must inform the defendant of the specific conduct the plaintiff has
called into question and must provide a basis for the trial court to conclude that the claims
have merit. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879
(Tex. 2001). “It need not cover every alleged liability theory to make the defendant
physician aware of the conduct at issue, but it must sufficiently describe the defendant
physician’s alleged conduct.” Potts, 392 S.W.3d at 631. If the trial court determines that
a liability theory is supported, then the claim is not frivolous, and the plaintiff’s suit may
proceed. Id.
B. Standard of Review
We review a trial court’s decision with respect to chapter 74 expert reports for an
abuse of discretion. Omaha Healthcare Ctr., LLC v. Johnson, 344 S.W.3d 392, 398 (Tex.
2011); Larson v. Downing, 197 S.W.3d 303, 304–05 (Tex. 2006); Jernigan v. Langley,
195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 877. The trial court abuses its
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discretion if it acts unreasonably, arbitrarily, or without reference to any guiding rules or
principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). In our
review of an expert report, we are limited to the 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. Palacios, 46 S.W.3d at 878.
C. Analysis
1. Applicable Standard of Care.
Dr. Tsifansky provided the following in his expert report:
Defendants Frank Sabatelli, M.D., Irene Perez-Young, M.D., and Vangala
Reddy, M.D. were [Alexis’s] treating interventional radiologists during her
stay at DHR. Defendants William Norberg, Jr., M.D., Krishna M. Turlapati,
M.D., and Ana Hernandez Almeda M.D. were [Alexis’s] treating attending
physicians at DHR.
As outlined above, [Alexis] presented to DHR with a diagnosis of DVT in the
right leg. As outlined above, multiple DVT, both occlusive and non-
occlusive, were noted throughout [Alexis’s] stay at DHR. As outlined above,
[Alexis] also presented to DHR with symptoms consistent with Crohn’s
Disease, which is a clot-forming condition, and later developed [CAS] also
a clot-forming condition. Also, as noted above, [Alexis] manifested
symptoms, which the Defendants noted, of tachycardia, high thrombus
load, blood in urine and vomit, and a generally and gravely deteriorating
condition before being life-flighted to [TCH] in Houston.
The standard of care for attending physicians and interventional radiologists
like the individually-named Defendants in this case is to consider whether
PE may be present in the unwell (and especially gravely deteriorating)
patient, like [Alexis], with known DVT and to order, perform, or recommend
the performance of a pulmonary CT angiogram (or an invasive pulmonary
angiogram). These simple tests (that is, a pulmonary CT angiogram or an
invasive pulmonary angiogram) would have detected and therefore allowed
for the removal of PE present in [Alexis’s] chest, either emboli that had
spread from her DVT or emboli created in her chest by nature of her Crohn’s
Disease or otherwise. All of the above-named Defendants (who were
[Alexis’s] treating attending physicians and interventional radiologists at
DHR) failed to order, recommend, or perform a single indicated pulmonary
CT angiogram following Dr. Norberg’s ordered chest x-ray on May 9, 2015
(the initial date of admission).
5
Defendants Sabatelli, Perez-Young, Reddy, Norberg, Turlapati, and
Almeda each therefore breached this applicable standard of care by failing
to order, recommend, or perform a single pulmonary CT angiogram (or
invasive pulmonary angiogram) throughout [Alexis’s] stay at DHR, in spite
of her diagnosed right leg DVT, symptoms consistent with Crohn’s Disease,
tachycardia, and gravely deteriorating overall clinical condition.
...
As noted above, the standard of care applicable to Defendants required
them to regularly (that is, daily) consider the presence of PE in a critically-
ill patient with DVT, and to [sic] a pulmonary CT angiogram or an invasive
angiogram whenever PE is suggested by clinical findings or suspicion, so
as to be able to timely detect, and therefore remove, life-threatening PE.
Had the identified Defendants ordered, recommended, or performed the
aforementioned imaging studies (after Dr. Norberg’s sole chest x-ray
ordered on May 9, 2015), [Alexis’s] multiple PE and related injuries would
have been diagnosed far sooner than they were, which would have negated
the necessity for her life-flight to [TCH], her multiple surgical procedures
performed at [TCH], and the pain and impairment she suffered from the time
of the creation of the emboli up to and following her ultimate discharge from
[TCH].
The report goes on to describe what occurred during Alexis’s stay at DHR and what
appellants performed or failed to perform.
Drs. Norberg, Turlapati, and Almeda argue that the expert report “do[es] not
distinguish, or even attempt to distinguish, between the different categories of health care
providers, nor do[es] [it] distinguish between the various physicians themselves” in
reference to the applicable standard of care. 5 However, in his report, Dr. Tsifansky
opined that “[t]he standard of care for attending physicians and interventional radiologists
like the individually-named [appellants] is to consider whether PE may be present . .. .”
and “to order, perform, or recommend the performance of a pulmonary CT angiogram or
invasive pulmonary angiogram.” Additionally, Dr. Tsifansky named all appellants as
5 We note that the remaining appellants do not make this argument on appeal.
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having failed to meet this standard of medical care: “Sabatelli, Perez-Young, Reddy,
Norberg, Turlapati, and Almeda each therefore breached this applicable standard of
care . . . .” Dr. Tsifansky was not required to set out a different standard of care as to
each physician because he opined that all appellants—attending physicians and
interventional radiologists—owed Alexis the same standard of care. See Bailey v. Amaya
Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see
also Univ. of Tex. Med. Branch at Galveston v. Qi, 370 S.W.3d 406, 413 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (stating that the expert report, which addressed the
actions of a doctor and a nurse, needed to either describe the respective standards of
care for the doctor and the nurse or state that the same standard of care applied to both
the doctor and the nurse).
Although Dr. Tsifansky referred to appellants collectively throughout his report, we
do not agree that in doing so Dr. Tsifansky failed “to present the standards of care relevant
to each [appellant].” Grouping different types of healthcare providers together in
discussing relevant standards of care does not render an expert report inadequate when
the healthcare providers owed the same duties to the plaintiff. Harvey v. Kindred
Healthcare Operating, Inc., 578 S.W.3d 638, 648 (Tex. App.—Houston [14th Dist.] 2019
no pet.) (holding that “grouping different types of healthcare providers together in
discussing relevant standards of care does not render an expert report inadequate when
the healthcare providers owed the same duties to the plaintiff”); Bailey, 402 S.W.3d at
366–67 (same); Livingston v. Montgomery, 279 S.W.3d 868, 871–73 (Tex. App.—Dallas
2009, no pet.) (rejecting arguments that expert reports were inadequate because they
“‘lumped together’ all of the doctors and all of the nurses” and that the “trial court should
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not have permitted [the expert] to identify one standard of care for more than one
defendant”); Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 199 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (“There is nothing inherently impermissible about
concluding that different health care providers owed the same standard of care . . . and
breached that duty in the same way.”). We therefore reject Drs. Norberg, Turlapati, and
Almeda’s argument.
2. Breach of the Standard of Care.
Next, appellants assert that the expert report fails to set out deviations from the
applicable standard of care. Dr. Tsifansky states that Drs. Sabatelli, Perez-Young, and
Reddy performed doppler ultrasounds on Alexis’s right leg, and all their findings showed
multiple DVT present in the right leg. Moreover, appellants noted her condition was
worsening while she experienced a high suspicion of heparin-induced thrombocytopenia,
nausea and vomiting, and tachycardia; her leg was more swollen and contained more
fluid. Additionally, Alexis now had blood in her urine and was vomiting blood with an
abnormally high heart rate. Despite Alexis manifesting symptoms consistent with PE,
according to Dr. Tsifansky’s expert report, appellants failed to perform the required
angiograms while she gravely deteriorated before being flown to TCH. Dr. Tsifansky also
explained in detail why appellants’ failure was a breach of the applicable standard of care:
an angiogram would have detected and therefore allowed for the removal of the PE
present in Alexis’s chest. Thus, Dr. Tsifansky’s report put each appellant on notice of
how he believed appellants breached the applicable standard of care. Because the
expert report sufficiently put appellants on notice of what care was allegedly required but
not given, it sufficiently sets out a standard of care and a breach of that standard. See
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Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, 382 S.W.3d 619, 629 (Tex. App.—
Fort Worth 2012, no pet.).
Dr. Norberg however, treated Alexis the day she arrived at DHR, May 9, 2015. In
his report, Dr. Tsifansky states:
Defendant William J. Norberg, Jr., M.D. admitted [Alexis] to DHR on May 9,
2015, began a heparin drip, diagnosed her with DVT with undetermined
etiology, and recommended an ultrasound for evaluation with consideration
of intervention and a continued heparin drip . . . Dr. Norberg ordered a single
chest x-ray on the date of admission, which did not reveal anything out of
the ordinary.
(Emphasis added). According to Dr. Tsifansky’s report, it appears Dr. Norberg did
not evaluate or treat Alexis on any other day.
All of the above-named Defendants (who were [Alexis’s] treating attending
physicians and interventional radiologists at DHR) failed to order,
recommend, or perform a single indicated pulmonary CT angiogram
following Dr. Norberg’s ordered chest x-ray on May 9, 2015 (the initial date
of admission)
...
The chest x-ray ordered by Dr. Norberg on the date of admission (May 9,
2015) did not reveal any PE present at that point.
...
Had the identified Defendants ordered, recommended, or performed the
aforementioned imaging studies (after Dr. Norberg’s sole chest x-ray
ordered on May 9, 2015) . . . .
(Emphasis added). Dr. Tsifansky’s report does not explain how Dr. Norberg, who was
not present when Alexis manifested the various symptoms referenced above, breached
the standard of care. Specifically, Dr. Tsifansky does not explain why Dr. Norberg should
have ordered the required angiograms when the chest x-ray did not reveal anything out
of the ordinary and Dr. Norberg only treated Alexis the day of her admission. Therefore,
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we conclude that Dr. Tsifansky’s report is deficient in this regard. 6 We sustain Dr.
Norberg’s sole issue.
3. Causation and Injury.
Lastly, appellants argue that Dr. Tsifansky’s report “grossly fails to establish the
required causal link between [appellants’] alleged breaches.” As to causation, an “expert
must explain, based on facts set out in the report, how and why” a health care provider’s
breach proximately caused the injury. Columbia Valley Healthcare Sys., LP v. Zamarripa,
526 S.W.3d 453, 459–60 (Tex. 2017). A report should explain how the defendant
physician’s action or inaction caused injury. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48,
53 (Tex. 2002). A court 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.). Furthermore, causation may not be inferred. Castillo
v. August, 248 S.W.3d 874, 883 (Tex. App.—El Paso 2008, no pet.).
Dr. Tsifansky’s report addressed the issue of causation. First, Dr. Tsifansky
addressed the standard of care applicable to appellants:
the standard of care applicable to Defendants required them to regularly
(that is, daily) consider the presence of PE in a critically-ill patient with DVT,
and to a pulmonary CT angiogram or an invasive angiogram whenever PE
is suggested by clinical findings or suspicion, so as to be able to timely
detect, and therefore remove, life-threatening PE.
In a section titled “CAUSAL CONNECTION BETWEEN BREACHES OF THE
STANDARDS OF CARE AND ALEXIS AMMEL’S INJURIES,” Dr. Tsifansky opines:
6 In his expert report, Dr. Hurwitz states that Dr. Norberg, as Alexis’s admitting attending physician,
“ordered a single chest x-ray on May 9, 2015, which did not reveal any abnormalities.” Like Dr. Tsifansky,
Dr. Hurwitz does not address whether Dr. Norberg treated Alexis after this date. Specifically, Dr. Hurwitz
does not explain why Dr. Norberg should have ordered the required angiograms when the chest x-ray did
not reveal any abnormalities. Accordingly, we conclude Dr. Hurwitz’s report fails to address how Dr.
Norberg breached the applicable standard of care.
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These simple tests (that is, a pulmonary CT angiogram or an invasive
pulmonary angiogram) would have detected and therefore allowed for the
removal of pulmonary emboli present in [Alexis’s] chest, either emboli that
had spread from her DVT or emboli created in her chest by nature of her
Crohn’s Disease or otherwise.
...
Had the identified [appellants] ordered, recommended, or performed the
aforementioned imaging studies (after Dr. Norberg’s sole chest x-ray
ordered on May 9, 2015), [Alexis’s] multiple PE and related injuries would
have been diagnosed far sooner than they were, which would have negated
the necessity for her life-flight to TCH, her multiple surgical procedures
performed at TCH, and the pain and impairment she suffered from the time
of the creation of the emboli up to and following her ultimate discharge from
TCH.
In our view, Dr. Tsifansky’s explanation provides a straightforward link between
appellants’ alleged breach of the standard of care and Alexis’s injury. Dr. Tsifansky
asserted that the DVT in the lower extremities, in this case in Alexis’s leg, often spreads
to the chest, creating PE. Dr. Tsifansky explained how appellants’ breach—failing to
order, perform, or recommend performance of angiograms, particularly considering her
worsening condition—caused a delay in diagnosis and proper treatment and why that
delay caused the issues that led to her life-flight and medical procedures at TCH. See
Abshire v. Christus Health Southeast Texas, 563 S.W.3d 219, 226 (Tex. 2018) (holding
that with respect to causation, our “role is to determine whether the expert has explained
how the negligent conduct caused the injury”); Miller v. JSC Lake Highlands Operations
536 S.W.3d 510, 512 (Tex. 2017) (holding that that there was a “more-than-adequate
summary” of causation where the expert explained how the physician’s breach—failing
to identify the illness—delayed timely removal, which in turn caused the patient to
aspirate).
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Appellants argue that because Dr. Tsifansky’s expert report does not provide a
date on which Alexis’s PE was detected, it is not a good faith effort to establish causation.
We disagree. An expert report “does not have to meet the same requirements as the
evidence offered in a summary-judgment proceeding or at trial.” Miller, 536 S.W.3d at
517. Although Dr. Tsifansky’s expert report does not give an exact date Alexis’s PE
developed, he clearly opines that she manifested symptoms while under appellants’
care—diagnosis DVT; iron-deficient anemia; chronic gastritis; weight loss of over twenty
pounds in two months; high suspicion of heparin-induced thrombocytopenia, nausea and
vomiting, significant tachycardia, edematous, hematuria, and hematemesis—which
should have prompted appellants to perform or order the required angiograms. See
Fagadau v. Wenkstern, 311 S.W.3d 132, 139 (Tex. App.—Dallas 2010, no pet.) (rejecting
the contention that the expert report was conjectural with respect to causation because
there was no indication of the exact date the patient’s retinal detachment occurred;
although the expert’s report did not give an exact date, the expert opined that an
examination would have prevented the detachment). Thus, according to Dr. Tsifansky,
performing the required angiograms would have, in all medical probability, detected the
presence of PE and therefore allowed for the removal of it, negating the necessity of her
life-flight to TCH and preventing the subsequent invasive procedures. See Patterson v.
Ortiz, 412 S.W.3d 833, 839–40 (Tex. App.—Dallas 2013, no pet.) (concluding that the
expert report sufficiently showed that performing the required tests would have led to the
diagnosis of pneumonia, and early treatment would have more likely than not saved his
life); Gelman v. Cuellar, 268 S.W.3d, 123, 130 (Tex. App—Corpus Christi–Edinburg 2008,
pet. denied) (holding an expert report adequate regarding the breach of standard of care
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and causation because it explained that if patient had “been properly monitored and timely
treated post-operatively with aggressive respiratory care, she would not have developed
respiratory insufficiency,” which caused her “anoxic brain damage”); In re Barker, 110
S.W.3d 486, 491 (Tex. App.—Amarillo 2003, orig. proceeding) (concluding an expert
report sufficient because it explained negligent failure to recognize medical condition and
delay in treatment increased severity of plaintiff’s injuries). Therefore, we conclude the
report adequately links Dr. Tsifansky’s conclusion with the underlying facts: the failure to
perform angiograms was a substantial factor in Alexis’s delayed treatment and
subsequent injury.
D. Summary
As to whether the report is conclusory, we conclude that it is sufficiently detailed
as to (1) inform appellants of the conduct called into question and (2) allow the trial court
to conclude the Ameels’ claims have merit. See Palacios, 46 S.W.3d 873 at 879. Dr.
Tsifansky clearly articulated that appellants were required to perform or order an
angiogram and how the failure to do so in all medical probability allowed the progression
of Alexis’s PE, causing her to undergo multiple surgical procedures—with the exception
of Dr. Norberg. See Zamarripa, 526 S.W.3d at 460 (holding that the expert need not
prove the entire case or account for every known fact; the report is sufficient if it makes
“a good-faith effort to explain, factually, how proximate cause is going to be proven”).
Because expert reports are simply a preliminary method to show that a plaintiff has a
viable cause of action that is not frivolous, we hold that Dr. Tsifansky’s expert report
represents an objective good faith effort to inform appellants of the causal relationship
between the failure to adhere to the pertinent standard of care and the injury, harm, or
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damages claimed. See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(l). Therefore, we
conclude that the trial court did not abuse its discretion when it denied Drs. Reddy,
Turlapati, Almeda, Sabatelli, and Young’s motions to dismiss based on their complaints
that Dr. Tsifansky’s report was deficient. We overrule appellants’ issue. However,
because we have concluded that Dr. Tsifansky’s expert report does not address how Dr.
Norberg breached the standard of care, we hold that the trial court abused its discretion
by denying his motion to dismiss. See Van Ness, 461 S.W.3d at 142.
E. Dr. Hurwitz
Drs. Turlapati and Almeda challenged Dr. Hurwitz’s expert report by arguing that
he is not qualified. Because we determined that Dr. Tsifansky’s expert report complies
with § 74.351, we do not need to address appellants’ complaints regarding Dr. Hurwitz as
those complaints are not dispositive. See TEX. R. APP. P. 47.1; TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351 (providing that an expert report “is not admissible in evidence by any
party; shall not be in used in a deposition, trial, or other proceeding; and shall not be
referred to by any party during the course of the action for any purpose”).
III. CONCLUSION
We reverse the trial court’s order denying Dr. Norberg’s motion to dismiss and
remand the case to the trial court to decide whether to grant the Ameels a thirty-day
extension to cure the deficiency. See Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.
2008). We affirm the remainder of the trial court’s judgment.
JAIME TIJERINA,
Justice
Delivered and filed the
19th day of December, 2019.
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