arturo-cavazos-and-cynthia-cavazos-individually-and-as-next-friend-of ( 2006 )

                             NUMBER 13-04-00529-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ARTURO CAVAZOS AND CYNTHIA CAVAZOS,

INDIVIDUALLY AND AS NEXT FRIENDS OF

MAKAYLA CAVAZOS, A MINOR CHILD,                                      Appellants,

                                                             v.

MIGUEL CINTRON, M.D.,                                                                  Appellee.

   On appeal from the 103rd District Court of Cameron County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

Appellants, Arturo Cavazos and Cynthia Cavazos, individually and as next friends of Makayla Cavazos, a minor child, appeal the dismissal of their medical malpractice suit against appellee, Miguel Cintron, M.D.  In two issues, appellants contend the trial court erred in granting the motion to dismiss.  We affirm.

                                                   A.  Factual Background

On August 29, 2003, appellants filed suit against appellee, Miguel Cintron, M.D., among others, alleging that the defendants were negligent in carrying out their duties as physician, nurse-midwife, attending nurses and health care providers during the process of labor and delivery, and defendants= actions and inactions fell short of the acceptable standards of medical practice.  The trial court signed an AAgreed Order on Plea in Abatement@ on January 26, 2004, abating the case for sixty days.

On April 2, 2004, after the abatement period had expired, Dr. Cintron and the other defendants filed motions to dismiss for failure to timely file an expert report. On April 12, 2004, appellants provided defendants with the report of Joseph L. Des Rosiers, M.D.  On June 8, 2004, the trial court denied defendants= motions to dismiss.  Dr. Cintron and the other defendants subsequently filed their second motions to dismiss arguing that even if the appellants= expert report was considered timely, it was inadequate.  In response, appellants argued that the expert report constituted a Agood faith@ effort to comply with article 4590i of the Texas Medical Liability and Insurance Improvement Act (Athe Act@).^[1]  Following a hearing on the motions, the trial court dismissed appellants= suit, with prejudice, against defendants, Miguel Cintron, M.D., Valley Women=s Clinic, Valley Baptist Medical Center, Mary Krebsbach, CNM, Ursula Villarreal, and Linda Matthews.  Appellants appeal only from the trial court=s order dismissing their cause of action against Dr. Cintron.

                                                               B.  Discussion

In their second issue, appellants contend the trial court abused its discretion in dismissing their lawsuit because Dr. Des Rosiers= report represents a Agood faith effort@ to comply with the requirements of former article 4590i.

In deciding the adequacy of an expert report, Athe issue for the trial court is whether >the report= represents a good‑faith effort to comply with the statutory definition of an expert report.@  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).  AThat definition requires, as to each defendant, a fair summary of the expert=s opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury.@  Id.  In deciding whether a report represents a good‑faith effort to comply with the statutory definition of an expert report, Aa trial court should look no further than the report.@  Id.

We review a trial court=s decision to dismiss a case under former article 4590i, under an abuse‑of‑discretion standard.  See Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003); Palacios, 46 S.W.3d at 878. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.  Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Dr. Des Rosiers= report begins with the statement that he reviewed the medical records from three defendants, including Dr. Cintron.  He says he is a board certified obstetrician and gynecologist and opines that he is Aqualified to evaluate the medical care of Cynthia Cavazos received by [defendants] during her labor and the delivery of her daughter.@  He says that he understands the definitions of negligence and proximate cause and provides general definitions of each. Dr. Des Rosiers= report continues with a brief summary of Cynthia Cavazos= prenatal history, and then concludes with the following:

The deviation from the standard of care, which in reasonable medical probability caused the permanent left brachial plexus injury, occurred at the time of delivery.  First, a more generous episiotomy to relieve any element of soft tissue dystocia should have been done.  Second, the use of fundal pressure is contraindicated in the delivery of a shoulder dystocia problem.  Fundal pressure further impacts the anterior shoulder against the symphysis pubis and increases the need for excessive lateral traction on the fetal head in attempting to dislodge the anterior shoulder.  This is what caused the permanent brachial plexus injury.  In reasonable probability, had a more generous episiotomy been made and no fundal pressure been used, the permanent brachial plexus injury would not have occurred.  

We agree with the trial court that Dr. Des Rosiers= report fails to constitute a good-faith effort to comply with the Act.  The report generally names each defendant, but fails to present the standard of care relevant to each physician, nurse-midwife, nurses, and other health-care providers.  He further fails to explain what each of these parties should have done and what each party failed to do.  See Taylor v. Christus Spohn Health Sys. Corp., 169 S.W.3d 241, 244 (Tex. App.BCorpus Christi 2004, no pet.) (AAn 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 the injury.@). Because Dr. Des Rosiers= report fails to meet the good-faith effort  standard, we hold the trial court did not abuse its discretion in dismissing appellants= suit. Appellant=s second issue is overruled.^[2]

                                                 C.  Appellee=s Cross-Issue

In one cross-issue, Dr. Cintron asserts that the trial court erred in denying his first motion to dismiss and failing to award attorney=s fees. However, rule 25.1(c) of the Texas Rules of Appellate Procedure requires any party Awho seeks to alter the trial court's judgment or other appealable order@ to file a notice of appeal. Tex. R. App. P. 25.1(c); Welkener v. Welkener, 71 S.W.3d 364, 368 (Tex. App.BCorpus Christi 2001, no pet.); City of Freeport v. Vandergrifft, 26 S.W.3d 680, 683 (Tex. App.BCorpus Christi 2000, no pet.). Rule 25.1(c) further states that when a party fails to file a notice of appeal, a showing of Ajust cause@ is required before an appellate court may award more favorable relief than did the trial court.  See Tex. R. App. P. 25.1(c).  Here, Dr. Cintron requests more favorable relief from this Court and failed to file a notice of appeal.  Further, Dr. Cintron failed to show Ajust cause@ for overlooking his failure to file a notice of appeal.  See id.  Because Dr. Cintron has not met the requirements of rule 25.1(c), his cross‑issue may not be considered by this Court.^[3]  Dr. Cintron=s sole cross‑issue is overruled.

                                                              D.  Conclusion

The trial court=s order of dismissal with prejudice is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 29th day of June, 2006. 

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^[1] See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2064 [hereinafter Aformer article 4590i, section 13.01"], repealed by Act of May 16, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847 (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon 2005 & Supp. 2005)).  Because former article 4590i governs this case, we cite to that statute.

^[2] Appellants also assert in their first issue that the trial court abused its discretion in applying the wrong legal standard based on language used in its letter opinion.  However, we must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect legal reason for its judgment.  See Guar. County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (citing Gulf Land Co. v. Atl. Refining Co., 131 S.W.2d 73, 77 (Tex. 1939)). Because we have concluded the report was inadequate under the Act, we need not address this issue.  See Tex. R. App. P. 47.1.    

^[3] Appellee=s attorney includes Mary Krebsbach, CNM, and Valley Women=s Clinic, defendants in the original suit, as appellees on this cross-issue.  However, because they also failed to comply with rule 25.1(c), their cross-issue cannot be considered.