Cody Bernard, Individually and as Representative of the Estate of Paul Bernard And Blake Bernard v. CHI St. Luke's Health – the Woodlands Hospital Yasir Elhawi, M.D. And Heine Ruiz, M.D. ( 2023 )


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  • Reversed and Remanded and Opinion filed April 13, 2023.
    In The
    Fourteenth Court of Appeals
    NO. 14-22-00270-CV
    CODY BERNARD, INDIVIDUALLY AND AS REPRESENTATIVE OF
    THE ESTATE OF PAUL BERNARD; AND BLAKE BERNARD, Appellants
    V.
    CHI ST. LUKE’S HEALTH — THE WOODLANDS HOSPITAL; YASIR
    ELHAWI, M.D.; AND HEINE RUIZ, M.D., Appellees
    On Appeal from the 215th District Court
    Harris County, Texas
    Trial Court Cause No. 2020-53620
    OPINION
    Appellants Cody Bernard, individually and as representative of the Estate of
    Paul Bernard, and Blake Bernard (together, the “Bernard Appellants”) filed health
    care liability claims stemming from the death of their father. Appellees CHI St.
    Luke’s Health — The Woodlands Hospital, Yasir Elhawi, M.D., and Heine Ruiz,
    M.D. (collectively, “Appellees”) filed motions to dismiss, challenging the
    sufficiency of the Bernard Appellants’ expert report. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    . The trial court granted the motions, dismissed the Bernard
    Appellants’ claims with prejudice, and assessed attorney’s fees. For the reasons
    below, we reverse these orders and remand the case for further proceedings.
    BACKGROUND
    Paul Bernard was admitted to St. Luke’s Hospital on August 24, 2018,
    complaining of dysuria and abdominal pain. Paul was treated and discharged from
    the hospital on September 3, 2018. Two days later, Paul suffered cardiac arrest
    and died.
    Approximately two years after Paul’s death, the Bernard Appellants sued
    CHI St. Luke’s Health — The Woodlands Hospital,1 Memorial Hermann Health
    System, Dr. Heine Ruiz, Dr. Yasir Elhawi, and Dr. Alexander Kadin. Asserting
    claims stemming from Paul’s death, the Bernard Appellants alleged that the
    defendants failed to assess Paul’s risk of pulmonary embolism and failed to
    prescribe or administer necessary prophylactic measures. To support their health
    care liability claims, the Bernard Appellants served Appellees with Dr. Mark
    Murray’s expert report and curriculum vitae. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (a).
    Appellees filed individual motions to dismiss challenging the sufficiency of
    Dr. Murray’s expert report. The Bernard Appellants filed a response and argued
    that Dr. Murray’s expert report satisfied the statutory requirements.                   In the
    alternative, the Bernard Appellants requested a 30-day extension to amend the
    1
    In its original answer, appellee CHI St. Luke’s Health — The Woodlands Hospital
    asserted that the Bernard Appellants incorrectly named St. Luke’s Community Health Services
    and CHI St. Luke’s Health Baylor College of Medicine Medical Center as defendants. On
    appeal, the Bernard Appellants similarly use “CHI St. Luke’s Health — The Woodlands
    Hospital” to refer to these entities. Accordingly, this opinion also uses “CHI St. Luke’s Health
    — The Woodlands Hospital” to refer to defendants St. Luke’s Community Health Services and
    CHI St. Luke’s Health Baylor College of Medicine Medical Center.
    2
    expert report if the trial court concluded it was deficient.
    On April 2, 2021, the trial court signed two orders granting the motions to
    dismiss filed by CHI St. Luke’s Health — The Woodlands Hospital and Dr.
    Elhawi. The trial court signed a third order on April 23, 2021, granting Dr. Ruiz’s
    motion to dismiss the Bernard Appellants’ health care liability claim.
    Appellees filed individual motions requesting their attorney’s fees and costs.
    The Bernard Appellants filed a motion to reconsider the denial of their request for
    a 30-day extension to amend Dr. Murray’s report. The trial court held a hearing on
    the motions and, afterwards, signed three separate orders granting each Appellee
    their fees and costs. The trial court also denied the Bernard Appellants’ request for
    a 30-day extension. The Bernard Appellants timely filed a notice of interlocutory
    appeal.2 See 
    id.
     § 51.014(a)(10).
    ANALYSIS
    The Bernard Appellants raise three issues on appeal:
    1.     Dr. Murray’s expert report satisfies the statutory requirements;
    2.     if Dr. Murray’s report does not satisfy the statutory requirements, any
    deficiencies are curable and the trial court abused its discretion by
    denying the Bernard Appellants’ request for a 30-day extension to
    amend the report; and
    3.     the evidence is insufficient to support Appellees’ attorney’s fees
    awards.
    Appellees each filed an individual appellate response. We consider the Bernard
    Appellants’ issues below, beginning with the sufficiency of Dr. Murray’s report.
    2
    Defendants Memorial Hermann Health System and Dr. Alexander Kadin are not parties
    to this appeal.
    3
    I.       Overview of Governing Law and Standard of Review
    The Texas Medical Liability Act requires that plaintiffs alleging a health
    care liability claim serve each defendant with an expert report. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (a); Miller v. JSC Lake Highlands Operations, LP,
    
    536 S.W.3d 510
    , 511 (Tex. 2017) (per curiam).           An adequate expert report
    provides a “fair summary” of the expert’s opinions regarding (1) the applicable
    standards of care, (2) the manner in which the care rendered failed to meet those
    standards, and (3) the causal relationship between that failure and the injury, harm,
    or damages claimed. 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (r)(6); Abshire v.
    Christus Health Se. Tex., 
    563 S.W.3d 219
    , 223 (Tex. 2018) (per curiam). In
    determining whether an expert’s report makes this showing, we are limited to the
    report’s four corners. Jelinek v. Casas, 
    328 S.W.3d 526
    , 539 (Tex. 2010); C-HCA,
    Inc. v. Cornett, 
    635 S.W.3d 295
    , 299 (Tex. App.—Houston [14th Dist.] 2021, no
    pet.).
    “[T]he purpose of the expert report requirement is to weed out frivolous
    malpractice claims in the early stages of litigation, not to dispose of potentially
    meritorious claims.” Abshire, 563 S.W.3d at 223. Accordingly, it is not necessary
    that the expert report marshal all the plaintiff’s proof; rather, an expert report is
    adequate if it constitutes a “good faith effort” to comply with the statutory
    requirements. Id; see also Tex. Children’s Hosp. v. Knight, 
    604 S.W.3d 162
    , 169
    (Tex. App.—Houston [14th Dist.] 2020, pet. denied). This requires that the report
    “(1) inform[] the defendant of the specific conduct called into question, and
    (2) provid[e] a basis for the trial court to conclude the claims have merit.” E.D. v.
    Tex. Health Care, P.L.L.C., 
    644 S.W.3d 660
    , 664 (Tex. 2022) (per curiam). At
    this stage of litigation, “whether the expert’s explanations are ‘believable’ is not
    relevant to the analysis of whether the expert’s opinion constitutes a good-faith
    4
    effort to comply” with the Texas Medical Liability Act. 
    Id.
     (emphasis in original).
    We review a trial court’s decision to grant or deny a motion to dismiss based
    on the adequacy of an expert report for an abuse of discretion. Abshire, 563
    S.W.3d at 223.      The trial court abuses its discretion if it acts arbitrarily,
    unreasonably, or without reference to guiding rules or principles. Bowie Mem’l
    Hosp. v. Wright, 
    79 S.W.3d 48
    , 52 (Tex. 2002) (per curiam). “[U]nder an abuse of
    discretion standard, close calls must go to the trial court.” E.D., 644 S.W.3d at
    664.
    II.    Sufficiency of Dr. Murray’s Report
    In the trial court, Appellees raised the same challenge to Dr. Murray’s expert
    report and alleged that his collective allegations were not specific enough as to
    each individual Appellee with regard to the required elements of standard of care,
    breach, and causation. With these complaints in mind, we summarize the law
    governing each element before examining whether Dr. Murray’s report met these
    requirements.
    A.    A “Good Faith” Effort to Comply with Statutory Requirements
    As set out above, an expert report must provide a fair summary of the
    expert’s opinions regarding the applicable standards of care, the manner in which
    those standards were breached, and the causal relationship between the breach and
    the injury, harm, or damages claimed. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (l), (r)(6); Abshire, 563 S.W.3d at 223.
    Standard of care is defined by what an ordinarily prudent physician or health
    care provider would have done under the same or similar circumstances. Am.
    Transitional Care Ctrs. of Tex., Inc. v. Palacios, 
    46 S.W.3d 873
    , 880 (Tex. 2001);
    Naderi v. Ratnarajah, 
    572 S.W.3d 773
    , 779 (Tex. App.—Houston [14th Dist.]
    5
    2019, no pet.). Identifying the standard of care is critical because whether a health
    care provider breached a duty of care cannot be determined without specific
    information about what the defendant should have done differently. Abshire, 563
    S.W.3d at 226; Palacios, 46 S.W.3d at 880. However, the stated standard of care
    need not be complicated for it to be sufficient. See Baty v. Futrell, 
    543 S.W.3d 689
    , 697 (Tex. 2018); see also Patel v. Baker, No. 14-21-00177-CV, 
    2022 WL 1633802
    , at *2 (Tex. App.—Houston [14th Dist.] May 24, 2022, pet. denied)
    (mem. op.).
    An expert report’s sufficiency as to the breach element is tied to its
    sufficiency identifying the applicable standard of care. See Baty, 543 S.W.3d at
    697. Based on the facts set out in the report, an expert must explain how and why
    a health care provider’s breach of the standard of care caused the injury. Columbia
    Valley Healthcare Sys., L.P. v. Zamarripa, 
    526 S.W.3d 453
    , 459 (Tex. 2017).
    Finally, with respect to causation, a conclusory statement is inadequate;
    rather, the expert must explain the basis for his statements and link conclusions to
    specific facts. E.D., 644 S.W.3d at 664. Satisfying the “how and why” standard
    does not require that the expert prove the entire case or account for every known
    fact — rather, a report is sufficient if it makes “a good-faith effort to explain,
    factually, how proximate cause is going to be proven.” Id. Proximate cause has
    two components: (1) foreseeability, and (2) cause-in-fact. Humble Surgical Hosp.,
    LLC v. Davis, 
    542 S.W.3d 12
    , 23 (Tex. App.—Houston [14th Dist.] 2017, pet.
    denied).
    When a plaintiff sues more than one health care provider, the expert report
    must set forth the standard of care for each provider and explain the causal
    relationship between each provider’s individual acts and the claimed injury.
    Golucke v. Lopez, 
    658 S.W.3d 686
    , 693 (Tex. App.—El Paso 2022, no pet.);
    6
    Kingwood Pines Hosp., LLC v. Gomez, 
    362 S.W.3d 740
    , 748 (Tex. App.—
    Houston [14th Dist.] 2011, no pet.). This does not mean, however, that an expert
    report concluding that multiple health care providers owed the same standard of
    care and breached the standard in the same manner can never constitute a good
    faith effort at compliance with the Texas Medical Liability Act. See, e.g., Bailey v.
    Amaya Clinic, Inc., 
    402 S.W.3d 355
    , 367-68 (Tex. App.—Houston [14th Dist.]
    2013, no pet.) (expert report was sufficient even though it “applied the same
    standard of care” to the doctor and his staff because it “explain[ed] why” that
    standard was appropriate). But if an expert report concluding that different health
    care providers are collectively negligent is to constitute a good faith effort, it must
    explain why, under the particular circumstances, the providers owed the same
    standard of care to the plaintiff and breached that duty in the same manner.
    Golucke, 658 S.W.3d at 693; see also Tex. Health Harris Methodist Hosp. Fort
    Worth v. Biggers, No. 02-12-00486-CV, 
    2013 WL 5517887
    , at *6-7 (Tex. App.—
    Fort Worth Oct. 3, 2013, no pet.) (mem. op.); Gray v. CHCA Bayshore L.P., 
    189 S.W.3d 855
    , 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
    B.     Content of Dr. Murray’s Report
    In his expert report, Dr. Murray states that “[t]he same standard of care
    applies to all” Appellees. Continuing on, the report explains: “[Appellees] are
    grouped together because these healthcare providers owed the same duties to Paul
    Bernard — each individual defendant in this group of [Appellees] is held to the
    same standard of care.”
    Dr. Murray’s report delineates five standards of care collectively applicable
    to Appellees:
    •      Pulmonary embolism protocol: Dr. Murray opines that Appellees
    should have adopted a policy to aid in the identification of patients at
    7
    risk for pulmonary embolism.
    •      Identification of pulmonary embolism risk factors: According to Dr.
    Murray, an appropriate pulmonary embolism risk identification policy
    would have incorporated the Caprini risk assessment model.3
    •      Communication between providers: Dr. Murray’s report states that
    Appellees were required to “communicate with each other and work
    together as a team in rendering medical care to Paul Bernard.” Dr.
    Murray identifies three specific components of this communication:
    (1) discussing the patient’s chart, test results, and risk factors;
    (2) reviewing the patient’s medical history and available medical
    records that may indicate pulmonary embolism risk factors; and
    (3) communicating a patient’s pulmonary embolism risk factors to all
    providers rendering care.
    •      Proper anticoagulants: According to Dr. Murray, “[o]nce it is
    determined that a patient is at high risk for [pulmonary embolism],
    proper measures must be taken to reduce the risk both during the stay
    and upon discharge.” Dr. Murray identifies two measures that would
    have been appropriate to take with respect to Paul’s care:
    (1) prescribing and providing a sequential compression device4; and
    (2) prescribing and administering chemical anticoagulants, such as
    Lovenox at a dosage of 40 milligrams upon discharge and a twice
    daily 5 milligram dosage thereafter.
    •      Patient education: Dr. Murray states that Appellees were required “to
    educate their patient Paul Bernard regarding his risk for [pulmonary
    embolism] and the life-threatening consequences of developing” a
    pulmonary embolism. Specifically, Dr. Murray opines that Appellees
    were “required to explain the importance of the proper regimen for
    prevention of [pulmonary embolism] and the reasons for the
    anticoagulants prescribed.”
    With respect to breach, Dr. Murray opines that Appellees collectively failed to
    3
    Describing the Caprini model, Dr. Murray states that it “assesses a [pulmonary
    embolism] risk score based on certain factors,” including advanced age, having been confined to
    a bed for at least 72 hours, and sepsis.
    4
    Dr. Murray describes a sequential compression device as follows: A device “shaped
    like sleeves that wrap around the legs and inflate with air one at a time. This imitates walking
    and helps prevent blood clots.”
    8
    follow these five standards of care.
    Finally, with respect to causation, Dr. Murray describes the following chain
    of events:
    •      Pulmonary embolism is a blockage in one of the pulmonary arteries
    found in the lungs. In most cases, a pulmonary embolism is caused by
    a blood clot traveling to the lungs from veins in the legs or other parts
    of the body.
    •      “In all reasonable medical probability, a blood clot developed in Paul
    Bernard’s legs after he was discharged” by Appellees. The clot
    “traveled into his lungs, blocking one of his pulmonary arteries,” and
    resulted in “cardiac arrest.”
    •      “[H]ad [Appellees] followed the appropriate standards of care, this
    would not have happened, and Paul would still be alive.” Following
    the described standards of care “prevents the formation of blood clots
    that travel in the lungs.”
    •      Specifically, the standards of care “act collectively to preclude
    clotting of the blood. The mechanical coagulation methods imitate
    walking and ensure that blood is constantly flowing, which precludes
    development of clots. The chemical methods reduce the likelihood
    that blood will clot.      Combined these anticoagulant methods
    significantly reduce and can eliminate the development of” pulmonary
    embolisms.
    •      Appellees’ “failure to follow these standards of care proximately
    caused Paul’s death.” If Appellees had adhered to the appropriate
    standards of care, “in all reasonable medical probability Paul would
    not have developed the [pulmonary embolism] that ultimately led to
    his death.”
    C.     Application
    We conclude that Dr. Murray’s report provides a fair summary of his
    opinions regarding the applicable standards of care, how those standards were
    breached, and the causal relationship between the breaches and Paul’s death. See
    
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (l), (r)(6); Abshire, 563 S.W.3d at 223.
    9
    Linking conclusions to specific facts, Dr. Murray adequately explained how and
    why the alleged breaches caused Paul’s death.
    However, the trial court reasonably could have concluded that Dr. Murray’s
    expert report failed to adequately tie his conclusions regarding these elements to
    the actions of individual health care providers. See Golucke, 658 S.W.3d at 693;
    Kingwood Pines Hosp., LLC, 
    362 S.W.3d at 748
    . In his report, Dr. Murray states
    that the collective allegations are appropriate “because these healthcare providers
    owed the same duties to Paul Bernard.” But Dr. Murray’s expert report fails to
    explain why these different health care providers owed the same duties and
    breached them in the same manner. See Golucke, 658 S.W.3d at 693; Tex. Health
    Harris Methodist Hosp. Fort Worth, 
    2013 WL 5517887
    , at *6-7; Gray, 
    189 S.W.3d at 859
    . This explanation is particularly necessary when, as here, the
    Bernard Appellants have asserted claims against different types of health care
    providers: a hospital and two physicians.
    A similarly-deficient report was examined in Golucke, in which the plaintiff
    filed suit after she fell while recuperating from knee replacement surgery. 658
    S.W.3d at 690. The plaintiff asserted health care liability claims against multiple
    defendants, including five health care entities and four individual nurses. Id. The
    plaintiff’s expert report identified multiple standards of care that were breached,
    including completion of a thorough nursing assessment of the level of fall risk,
    provision of a safe environment to prevent accidents, and use of a “wheelchair” or
    “bed” alarm to alert nurses to assist the plaintiff if she attempted to get out of bed.
    Id. at 694-95. The expert report applied these standards of care uniformly across
    all the defendants without specifying which actions or omissions each entity or
    nurse was responsible for. Id. at 694, 700.
    One of the nurses challenged the sufficiency of the expert report and the trial
    10
    court denied her motion to dismiss. Id. at 691. Reversing the denial, the appellate
    court held that the report lacked “an explanation on what [the nurse] herself did
    wrong or failed to do, such as to indicate how she breached the standard of care
    applicable to her individually.” Id. at 696. Continuing on, the court noted that the
    expert report “fails to explain, identify, or describe any specific conduct that is
    attributable to [the nurse]. Instead, the report leaves us attempting to infer which
    individual was involved in the breaches identified.”         Id. at 697.    “Without
    explaining what [the nurse] was doing, what she should have been doing, or how
    she was connected to the care and monitoring of [the plaintiff], the report fails to
    make a causal connection between any individual act of [the nurse] and [the
    plaintiff’s] injury sustained from falling.” Id. at 700; see also Tex. Health Harris
    Methodist Hosp. Fort Worth, 
    2013 WL 5517887
    , at *6 (the expert’s report was
    inadequate because it “fail[ed] to explain how a tissue bank, a hospital, and a
    neurosurgeon would have identical standards of care as to the preservation and
    storage of a bone flap”).
    Here too, Dr. Murray’s expert report did not specifically implicate any
    individual Appellee’s acts or omissions in the care provided to Paul. Likewise, in
    its discussion of the applicable standards of care, breaches, and causal relationship,
    the expert report only refers to the Appellees collectively — it does not assign any
    specific acts or omissions to any individual Appellee. Nor does the report explain
    why it is appropriate to group the Appellees in this manner, leaving us to speculate
    as to each Appellee’s involvement. See Golucke, 658 S.W.3d at 694-700.
    Because of this deficiency with respect to the collective allegations in Dr.
    Murray’s report, the trial court did not abuse its discretion in granting Appellees’
    motions to dismiss the Bernard Appellants’ claims. See E.D., 644 S.W.3d at 664;
    Abshire, 563 S.W.3d at 223. We overrule the Bernard Appellants’ first issue.
    11
    III.   Entitlement to a 30-Day Extension
    In their second issue, the Bernard Appellants assert that any deficiencies in
    Dr. Murray’s expert report are curable and, therefore, the trial court abused its
    discretion by denying their request for a 30-day extension to amend the report.
    If the plaintiff asserting a health care liability claim timely serves an expert
    report and the trial court concludes the report represents an objective good faith
    effort to comply with the applicable statutes but nevertheless is deficient in some
    way, the trial court has the discretion to grant the plaintiff one 30-day extension to
    cure the deficiencies. 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (c). We review
    the trial court’s ruling on a motion for an extension to cure a deficient expert report
    for an abuse of discretion. Henry v. Kelly, 
    375 S.W.3d 531
    , 535 (Tex. App.—
    Houston [14th Dist.] 2012, pet. denied).
    The trial court “must grant an extension if a report’s deficiencies are
    curable.” Columbia Valley Healthcare Sys., L.P., 526 S.W.3d at 461. The Texas
    Supreme Court established a “minimal” standard for determining whether a
    deficient report is curable: “a 30-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.” Scoresby v. Santillan, 
    346 S.W.3d 546
    , 557
    (Tex. 2011); Univ. of Tex. Health Sci. Ctr. at Houston v. Joplin, 
    525 S.W.3d 772
    ,
    782 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); see also Samlowski v.
    Wooten, 
    332 S.W.3d 404
    , 416 (Tex. 2011) (Guzman, J., concurring) (“[i]n order to
    preserve the highest number of meritorious claims, trial courts should err on the
    side of granting claimants’ extensions”); Samlowski, 332 S.W.3d at 411 (plurality
    op.) (agreeing with the concurrence that the trial court should err on the side of
    granting an extension).
    12
    Here, Dr. Murray’s report satisfies this standard. First, the report was served
    by the statutory deadline. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (a).
    Second, the report contains the opinion of a person with expertise that the claim
    has merit, i.e., Dr. Murray. Dr. Murray’s curriculum vitae (which was included
    with the expert report) demonstrates that he has expertise in the areas implicated by
    the facts of this case.   Dr. Murray received his medical degree in 1993 and
    completed a residency in internal medicine. Dr. Murray spent five years serving as
    an active-duty physician in the United States Air Force and, thereafter, worked as
    an emergency room physician. Dr. Murray currently is affiliated with several
    health care groups and health systems. This experience provides a foundation
    sufficient to support Dr. Murray’s opinion that the Bernard Appellants’ health care
    liability claims have merit. See Scoresby, 346 S.W.3d at 557.
    Finally, Dr. Murray’s report implicates Appellees’ conduct in Paul Bernard’s
    death. As set forth above, Dr. Murray’s report provides a fair summary of his
    opinions regarding the applicable standards of care, the alleged breaches of those
    standards, and the consequences thereof. Dr. Murray sufficiently explained how
    and why the alleged breaches caused Paul Bernard’s death. The only deficiency in
    Dr. Murray’s report stems from the collective nature of the allegations — Dr.
    Murray failed to specifically assign certain acts or omissions to the individual
    Appellees or explain why they are subject to the same standards. See Golucke, 658
    S.W.3d at 694-700. But this deficiency does not render his report incurable. See
    Scoresby, 346 S.W.3d at 557.
    Given the Supreme Court’s minimal standard and the Bernard Appellants’
    objective good faith efforts to comply with the statutory requirements governing
    expert reports, we cannot say that Dr. Murray’s expert report was incurable.
    Therefore, we hold that the trial court abused its discretion by denying the Bernard
    13
    Appellants’ request for a 30-day extension to cure Dr. Murray’s expert report. See,
    e.g., Guerrero v. Karkoutly, No. 13-20-00053-CV, 
    2020 WL 5056511
    , at *3-4
    (Tex. App.—Corpus Christi Aug. 27, 2020, pet. denied) (mem. op.); Curnel v.
    Houston Methodist Hosp.-Willowbrook, 
    562 S.W.3d 553
    , 569-70 (Tex. App.—
    Houston [1st Dist.] 2018, no pet.); Wheeler v. Methodist Richardson Med. Ctr.,
    No. 05-17-00332-CV, 
    2017 WL 6048153
    , at *3-4 (Tex. App.—Dallas Dec. 7,
    2017, pet. denied) (mem. op.). We sustain the Bernard Appellants’ second issue.
    IV.     Attorney’s Fees
    When a plaintiff fails to file an expert report as to a health care liability
    defendant, the trial court has no discretion but to dismiss the claims asserted
    against that defendant with prejudice and award the defendant costs and attorney’s
    fees. See 
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351
    (b). Here, after the trial
    court granted Appellees’ motions to dismiss, it awarded each Appellee its costs and
    fees.
    Because we conclude the trial court abused its discretion by denying the
    Bernard Appellants’ request for a 30-day extension, we likewise reverse the trial
    court’s orders awarding Appellees their costs and fees. We sustain the Bernard
    Appellants’ third issue.
    CONCLUSION
    We reverse the trial court’s (1) April 2, 2021 orders granting the motions to
    dismiss filed by CHI St. Luke’s Health — The Woodlands Hospital and Dr.
    Elhawi, and (2) April 23, 2021 order granting Dr. Ruiz’s motion to dismiss. We
    also reverse the trial court’s denial of the Bernard Appellants’ request for a 30-day
    extension to cure their expert report and its orders awarding Appellees their fees
    14
    and costs. We remand this case with instructions for the trial court to grant a 30-
    day extension under Texas Civil Practice and Remedies Code section 74.351(c).
    /s/    Meagan Hassan
    Justice
    Panel consists of Justices Bourliot, Hassan, and Poissant.
    15
    

Document Info

Docket Number: 14-22-00270-CV

Filed Date: 4/13/2023

Precedential Status: Precedential

Modified Date: 4/16/2023