san-antonio-extended-medical-care-inc-dba-med-mart-v-ruben-vasquez ( 2011 )


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  •                                                OPINION
    No. 04-10-00727-CV
    SAN ANTONIO EXTENDED MEDICAL CARE, INC. d/b/a Med Mart,
    Appellant
    v.
    Ruben VASQUEZ, Individually and as Administrator of the Estate of Ruben Vasquez, Jr.
    Deceased & Oralia Vasquez, Joe Jimenez and Rosa Ward,
    Appellees
    From the 150th Judicial District Court, Bexar County, Texas
    Trial Court No. 2008-CI-20411
    Honorable Barbara Hanson Nellermoe, Judge Presiding
    Opinion by:      Phylis J. Speedlin, Justice
    Sitting:         Karen Angelini, Justice
    Phylis J. Speedlin, Justice
    Steven C. Hilbig, Justice
    Delivered and Filed: August 17, 2011
    REVERSED AND RENDERED
    San Antonio Extended Medical Care, Inc. d/b/a Med Mart (“Med Mart”) challenges the
    trial court’s order denying its motion to dismiss the underlying lawsuit for failure to file a
    medical expert report required by statute. Because we conclude the trial court erred in denying
    the motion to dismiss, we reverse the trial court’s order and render judgment dismissing the
    lawsuit with prejudice.
    04-10-00727-CV
    BACKGROUND
    This is the second time this case has been before us on an interlocutory appeal. In San
    Antonio Extended Med. Care, Inc. d/b/a Med Mart v. Vasquez, 
    327 S.W.3d 193
    (Tex. App.—San
    Antonio 2010, no pet.), we set forth the underlying facts as follows. On April 7, 2008, Ruben
    Vasquez, Jr. (“Mr. Vasquez”) underwent a tracheostomy. Ten days after the surgery, he was
    discharged from the hospital under doctor’s orders to receive home oxygen therapy and trachea
    care. Med Mart delivered two oxygen tanks to Mr. Vasquez’s home on April 17, 2008. The
    following day, Mr. Vasquez’s wife called Med Mart and informed them that her husband was
    running low on oxygen. She again informed Med Mart that the oxygen supply was low on April
    19, but another delivery was not made. Later that day, Mr. Vasquez became unconscious and
    was transported to the hospital by EMS. He died the next day.
    Thereafter, on December 9, 2008, Ruben Vasquez, individually, and as administrator of
    the Estate of Ruben Vasquez, Jr., deceased and Oralia Vasquez, Joe Jimenez, and Rosa Ward
    (collectively, “Vasquez”) sued Med Mart alleging, among other claims, that Mr. Vasquez’s death
    was proximately caused by the negligent acts and/or omissions of Med Mart, including: failing to
    provide adequate oxygen tanks as ordered; failing to respond to requests by Mr. Vasquez’s
    family for an adequate oxygen supply; failing to institute safeguards to ensure that patients such
    as Mr. Vasquez would always have an adequate supply of the medical supplies, including
    oxygen; and failing to provide adequate oxygen supply ordered by his treating doctors. On
    January 12, 2009, Vasquez hand delivered a Stowers 1 demand letter to counsel for Med Mart.
    Attached to the letter were nine exhibits, one of which was an autopsy report authored by Dr.
    Louis A. Levy; Dr. Levy’s curriculum vitae was also included.
    1
    G.A. Stowers Furniture Co. v. Am. Indem. Co., 
    15 S.W.2d 544
    (Tex. 1929).
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    04-10-00727-CV
    On May 14, 2009, Med Mart filed a motion to dismiss claiming Vasquez failed to serve
    his 120-day expert report as required by the Medical Liability Act detailed in section 74.351(a)
    of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 74.351(a) (West 2011). On May 20, 2009, Vasquez filed a motion to strike the motion to
    dismiss and a response to the motion to dismiss claiming that he is not subject to the
    requirements of section 74.351 because he did not assert a health care liability claim against Med
    Mart and because Med Mart is not a health care provider. Vasquez alternatively argued that if
    his suit is in fact governed by the Act, he complied with section 74.351 by timely filing an expert
    report authored by Dr. Levy, and that Med Mart waived any objections to Dr. Levy’s report
    when it failed to file objections within 21 days of service. The trial court denied the motion to
    dismiss without making findings of fact or conclusions of law, but orally stated that the evidence
    did not demonstrate Med Mart to be a health care provider.
    Med Mart filed its first interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 51.014(a)(9) (West 2008). After a review of the evidence before the trial court, we concluded
    Med Mart met the statutory definition of a “health care provider.” 
    Vasquez, 327 S.W.3d at 198
    -
    99. We further held Vasquez’s suit alleged a departure from the accepted standards of health
    care, thereby constituting a health care liability claim subject to the expert report requirements of
    the Act. 
    Id. at 199.
    Because of the trial court’s erroneous determination that Med Mart did not
    qualify as a health care provider, it never reached Vasquez’s responsive motion to strike.
    Accordingly, we reversed and remanded the case to the trial court for further proceedings. 
    Id. at 200.
    On remand, Med Mart again filed a motion to dismiss Vasquez’s suit for failure to have
    timely filed an expert report. Med Mart specifically argued the written autopsy report signed by
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    04-10-00727-CV
    Dr. Levy did not satisfy the statutory requirements of an expert report and was so deficient as to
    constitute “no report.” In response, Vasquez argued Med Mart waived all objections to Dr.
    Levy’s report because it had not filed objections to the report within 21 days after it was served.
    The trial court heard arguments by both parties and subsequently denied Med Mart’s motion to
    dismiss by a written order signed September 17, 2010 without stating a basis for its denial. Med
    Mart now challenges the September 2010 order.
    APPLICABLE LAW AND STANDARD OF REVIEW
    At issue in this appeal is whether the trial court abused its discretion by denying Med
    Mart’s motion to dismiss Vasquez’s suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)
    (West 2011). We review a trial court’s order denying a motion to dismiss for failure to have
    timely filed a required expert report under an abuse of discretion standard. Am. Transitional
    Care Ctrs. of Tex., Inc. v. Palacios, 
    46 S.W.3d 873
    , 877 (Tex. 2001); Pedroza v. Toscano, 
    293 S.W.3d 665
    , 666 (Tex. App.—San Antonio 2009, no pet.); Holguin v. Laredo Reg’l Med. Ctr.,
    L.P., 
    256 S.W.3d 349
    , 352 (Tex. App.—San Antonio 2008, no pet.).
    Under current law, a health care liability claimant is required to serve an expert report
    with curriculum vitae by the 120th day after the original petition is filed for each physician or
    health care provider named in the suit. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). An
    expert report is defined as:
    [A] written report by an expert that provides a fair summary of the expert’s
    opinions as of the date of the report regarding applicable standards of care, the
    manner in which the care rendered by the physician or health care provider failed
    to meet the standards, and the causal relationship between that failure and the
    injury, harm, or damages claimed.
    
    Id. § 74.351(r)(6)
    (West 2011). If the required report has not been served by the 120-day
    deadline, on proper motion by a defendant, the trial court shall dismiss the suit with prejudice
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    04-10-00727-CV
    and award reasonable attorney’s fees and court costs incurred by the physician or health care
    provider. 
    Id. § 74.351(b).
    If, however, the required report has not been served within the
    specified time period because elements of the report are deficient, the trial court may grant one
    30-day extension to the claimant in order to cure the deficiency. 
    Id. § 74.351(c)
    (West 2011). A
    defendant physician or health care provider can waive all objections to an expert report by failing
    to file and serve any objection to the sufficiency of the report no later than the 21st day after the
    date the expert report was served. 
    Id. § 74.351(a).
    The Supreme Court of Texas recently addressed whether an inadequate expert report can
    contain so many deficiencies as to be incurable, and thus not subject to the Act’s thirty-day
    extension because no report was timely filed in the first instance. See Scoresby v. Santillan, —
    S.W.3d —, No. 09-0497, 
    2011 WL 2586860
    (Tex. July 1, 2011). In Scoresby, the plaintiff sued
    two physicians for medical malpractice. 
    Id. at *1.
    The plaintiff timely served the physicians
    with a letter written by Dr. Charles D. Marable; the letter did not attach Marable’s curriculum
    vitae or describe his credentials or experience other than to state he is “a Board-Certified
    neurologist.” 
    Id. Marable concluded
    the letter by opining that both physicians violated the
    standard of care. 
    Id. at *2.
    The physicians timely objected that the letter was inadequate as an
    expert report, and also argued that Marable’s letter was so woefully deficient that it did not even
    qualify as an expert report under the Act to meet the 120-day deadline, and moved the court to
    dismiss the case with prejudice and award reasonable attorney fees and costs. 
    Id. at *3.
    The trial
    court denied the physicians’ motions to dismiss, and granted the plaintiff a thirty-day extension
    to cure the deficiencies in the report. 
    Id. The physicians
    appealed, persisting in their contention
    that Marable’s letter was too inadequate to qualify as an expert report, and therefore the Act did
    not permit an additional thirty days to cure the deficiencies. 
    Id. The Fort
    Worth Court of
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    04-10-00727-CV
    Appeals dismissed the physicians’ appeal for want of jurisdiction, holding that pursuant to
    Ogletree v. Matthews, 2 a trial court’s decision to grant a thirty-day extension is not subject to
    appellate review. Scoresby v. Santillan, 
    287 S.W.3d 319
    , 325 (Tex. App.—Fort Worth 2009).
    The appellate court stressed that an expert report could be either absent, i.e., not timely served, or
    deficient, but declined to recognize a third category of expert reports in which a timely served
    report is so deficient as to constitute no report at all. 
    Id. The physicians
    appealed to the Supreme Court, which affirmed the judgment of the court
    of appeals. After considering the Act’s text and purpose, the Supreme Court held that “a
    document qualifies as an expert report if it contains a statement of opinion by an individual with
    expertise indicating that the claim asserted by the plaintiff against the defendant has merit.”
    Scoresby, 
    2001 WL 2586860
    at *1. The court concluded that “a thirty-day extension to cure
    deficiencies in an expert report may be granted if the report is served by the statutory deadline, if
    it contains the opinion of an individual with expertise that the claim has merit, and if the
    defendant’s conduct is implicated.” 
    Id. at *7.
    The court recognized that this is a “minimal
    standard,” but considered it necessary to avoid multiple interlocutory appeals and to give
    claimants the opportunity to show that their claim has merit. 
    Id. ANALYSIS On
    appeal, Med Mart maintains that the trial court abused its discretion in denying Med
    Mart’s motion to dismiss for failure to file an expert report because no expert report was served.
    Med Mart contends that the autopsy report in this case is not a good faith effort to comply with
    the definition of an expert report. Vasquez responds that the timely served autopsy report is an
    expert report, and therefore Med Mart waived any objection to the report by not objecting within
    21 days of service. Given the standard recently enunciated in Scoresby, we must determine
    2
    Ogletree v. Matthews, 
    262 S.W.3d 316
    (Tex. 2007).
    -6-
    04-10-00727-CV
    whether the autopsy report served in this case meets the requirements of a section 74.351 expert
    report, thus requiring Med Mart to object within 21 days. 3
    In reviewing the document at issue, we first note it is titled “Autopsy Protocol.” It
    consists of five full typed pages. The first paragraph is titled “Clinical Summary” and states in
    part:
    This is a morbidly obese Hispanic male with a history of sleep apnea which was
    treated by tracheostomy. He was sent home and reportedly was to receive oxygen
    and tracheostomy supplies from a local vendor. The vendor did not deliver the
    supplies as promised and the patient developed respiratory difficulties. He was
    transferred to Jourdanton Hospital and was comatose on arrival. He subsequently
    expired of apparent respiratory arrest.
    The first paragraph ends with the only direct reference to Med Mart—“Medmart (sic) was to
    provide the local supplies, some of which [Mr. Vasquez] already had.” Thereafter, Dr. Levy
    presents his clinical findings and observations gained by his external, internal, and microscopic
    examinations of Mr. Vasquez’s body to include examinations of his heart, lungs, neck, liver,
    spleen, pancreas, adrenals, kidneys, GI tract, and head. Finally, Dr. Levy lists fifteen principle
    autopsy findings and ends with a paragraph titled “Comment” which concludes as follows:
    Respiratory failure as a complication of morbid obesity is the most likely cause of
    death. Other contributing factors may include the hiatal hernia, lack of
    supplemental oxygen (empty tanks), mechanical obstructions, complication of
    hypertrophic cardiomyopathy, etc. but I cannot specifically evaluate or quantitate
    these for the reasons stated.
    Nowhere in the document is there a single reference to any applicable standard of care,
    the manner in which the care rendered by Med Mart failed to meet the standard, or the causal
    relationship between any claimed failure by Med Mart and Mr. Vasquez’s death as required by
    statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). The document at issue
    extensively reports autopsy findings from external, internal, and microscopic examination; and,
    3
    We note that the trial court ruled on the motion to dismiss before the Supreme Court issued the Scoresby opinion.
    -7-
    04-10-00727-CV
    as its title suggests, appears on its face to be simply a report of Dr. Levy’s clinical findings.
    None of the statutory requirements for an expert report, as it is defined under section 74.351 of
    the Act, were met or even attempted. Aside from stating that Med Mart failed to deliver the
    supplies, the report is silent as to the standard of care Med Mart was to provide, how Med Mart
    fell short, and how that shortcoming caused Mr. Vasquez’s death.
    The purpose of a section 74.351 expert report is to inform the defendant of the specific
    conduct the plaintiff has called into question and to provide a basis for the trial court to conclude
    that the claims have merit. Leland v. Brandal, 
    257 S.W.3d 204
    , 207 (Tex. 2008); 
    Palacios, 46 S.W.3d at 879
    . The autopsy report here does neither. The Supreme Court has recently instructed
    that, at a minimum, an expert report must (1) be timely served; (2) contain the opinion of an
    individual with expertise that the claim has merit; and (3) implicate the defendant’s conduct.
    Scoresby, 
    2011 WL 2586860
    , at *7. The autopsy report here wholly fails as to the second prong.
    Dr. Levy merely opines as to the suspected cause of death and “other contributing factors,” but
    fails to opine on whether Vasquez’s claims are meritorious. That Med Mart failed to deliver the
    oxygen tanks is within the realm of common knowledge. What is lacking is an opinion as to
    whether an adequate supply of oxygen was delivered in the first instance, or whether the tanks
    were set to the correct flow rate, i.e., information that could only be determined by the
    specialized knowledge of a health care expert. Because Dr. Levy does not provide his opinion as
    to whether Vasquez’s claims have merit, we hold that Dr. Levy’s autopsy report does not meet
    the standard for an expert report as enunciated in Scoresby. Scoresby, 
    2011 WL 2586860
    , at *7
    (holding expert report is not curable if it does not contain the opinion of an individual with
    expertise that the claim has merit); see also Bogar v. Esparza, 
    257 S.W.3d 354
    , 364, 368 (Tex.
    App.—Austin 2008, no pet.) (holding physician’s report which opined about the cause of death
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    04-10-00727-CV
    without explaining who caused it or how was essentially a “second autopsy report” that failed
    entirely to implicate the conduct of a defendant; such a report is not merely deficient, but is in
    effect no report as to that defendant).
    Because Dr. Levy’s autopsy report is not an expert report as defined by the standard set
    out in Scoresby, the trial court did not have a basis on which to deny Med Mart’s motion to
    dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (trial court has no discretion but to
    dismiss case upon proper motion when no expert report is timely served). We reverse the trial
    court’s order denying Med Mart’s motion to dismiss, and render judgment dismissing the cause
    with prejudice.
    Phylis J. Speedlin, Justice
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