Thomas C. Binzer, M.D., and Thomas C. Binzer, M.D., P.A. v. Joseph E. Alvey, Jr. , 2012 Tex. App. LEXIS 472 ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00316-CV
THOMAS C. BINZER, M.D., AND APPELLANTS
THOMAS C. BINZER, M.D., P.A.
V.
JOSEPH E. ALVEY, JR. APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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OPINION
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This is an appeal from the trial court’s denial of appellants Thomas C.
Binzer, M.D. and Thomas C. Binzer, M.D., P.A.’s motion for partial dismissal
under section 74.351 of the civil practice and remedies code. In three issues,
appellants contend that appellee Joseph F. Alvey, Jr.’s expert report failed to
address four of appellee’s pled theories of liability, that it failed to provide an
adequate expert opinion as to those theories, and that they were not required to
timely file and serve objections under section 74.351(a) to preserve their
complaints. We affirm.
Background
Appellee sued appellants, claiming Dr. Binzer was negligent in his
treatment of a methicillin resistant staphylococcus aureus (MRSA) infection after
performing shoulder surgery on appellee. Appellee contended that Dr. Binzer
was negligent in the following: (1) failing to timely advise him that he was
infected with MRSA, (2) failing to advise him of conflicting medical studies and
reports, (3) concealing the MRSA infection after inquiry by appellee, (4) failing to
timely treat the infection, (5) failing to properly treat the infection, (6) failing to
properly follow, observe, and test appellee to determine the progress of the
infection, (7) failing to timely and properly refer appellee to an infectious disease
specialist, and (8) failing to timely and properly consult with an infectious disease
specialist. Appellee also contended that Dr. Binzer made false representations
about the existence of an infection.
Appellee timely served an expert report on appellants on May 13, 2011.
Appellants filed a motion for partial dismissal and costs on June 22, 2011,1 more
than twenty-one days following the service of the expert report. The motion for
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Although the certificate of service in the motion to dismiss states that it
was mailed to appellee on May 17, 2011, appellee’s counsel filed an affidavit with
the court stating that he did not receive it until June 23, 2011 and that the report
was accompanied by a cover letter dated June 17, 2011. Appellants did not
dispute this affidavit.
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partial dismissal contends that the report constitutes no report as to appellee’s
first three negligence theories of liability and his false representation claim
because it wholly fails to address these theories of liability. The trial court denied
the motion after a hearing.
Analysis
Section 74.351(a) of the civil practice and remedies code provides that “[i]n
a health care liability claim, a claimant shall, not later than the 120th day after the
date the original petition was filed, serve on each party or the party’s attorney
one or more 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) (West 2011). It also provides that a defendant in a health care
liability suit must object to the sufficiency of a timely-filed expert report no later
than twenty-one days after service. Id. A defendant who fails to do so waives
“all” objections to the report. Id.; see Ogletree v. Matthews, 262 S.W.3d 316, 322
(Tex. 2007); Neason v. Buckner, 352 S.W.3d 254, 257 (Tex. App.––Houston
[14th Dist.] 2011, no pet.). The statute does not require dismissal of deficient but
curable reports. Ogletree, 262 S.W.3d at 320.
Appellants claim that because appellee’s expert report failed to address
the specific claims they challenge, appellee in effect provided no expert report at
all on those claims; therefore, appellants were not required to object within the
twenty-one day period set forth in section 74.351(a). However, appellants’
motion for partial dismissal acknowledges that the report addresses some but not
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all of appellee’s pled theories of liability, and appellants’ objections were
discernable and thus could have been made within the twenty-one day period.
See id. To the extent that the report sufficiently addresses some pled theories of
liability but not others, it is a “deficient, but curable” report rather than no report at
all. See id. at 320, 322. But because appellants failed to object to this alleged
deficiency, they cannot now require appellee to cure it or face dismissal of those
theories under the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a);
Ogletree, 262 S.W.3d at 322. Accordingly, we conclude and hold that because
appellee timely served a report that addresses some of his claims in the live
petition, appellants were required to object to “all” alleged deficiencies in the
report within the twenty-one day period. See Neason, 352 S.W.3d at 259.
Because they failed to do so, they waived those objections. Ogletree, 262
S.W.3d at 322; Neason, 352 S.W.3d at 259.
Appellants cite Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App.––Fort
Worth 2003, pet. denied), and Benson v. Vernon, 303 S.W.3d 755, 761 (Tex.
App.––Waco 2009, no pet.), in support of their argument. Both of these cases
are inapposite because they do not involve the waiver provision of section
74.351(a) and its explicit language that “all” objections not timely made are
waived. We agree with the holding in Windsor that an expert report must
address each theory of liability alleged in the plaintiff’s pleadings, but we do not
even reach that issue if a report qualifies as a report under the statute (whether
deficient or adequate) as to some theories of liability and the defendant does not
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timely object to any theories of liability missing from the report. See Windsor,
121 S.W.3d at 51. The holding in Neason is directly on point, and we agree with
and adopt its reasoning, which is based on the plain language of section
74.351(a). Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Neason, 352 S.W.3d
at 259. We overrule appellants’ third issue, which is dispositive of this appeal.
Accordingly, we need not address their first and second issues. See Tex. R.
App. P. 47.1; Davisson v. Nicholson, 310 S.W.3d 543, 559 n.11 (Tex. App.––Fort
Worth 2010, no pet.) (op. on reh’g).
Conclusion
Having overruled appellants’ third and dispositive issue, we affirm the trial
court’s order.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DELIVERED: January 19, 2012
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