Jorge C. Zamora-Quezada, M. D. v. Amalia Mendoza

NUMBER 13-17-00302-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE C. ZAMORA-QUEZADA,
M.D., Appellant,
v.
AMALIA MENDOZA, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
We issued our original memorandum opinion in this case on March 1, 2018.
Appellant, Jorge C. Zamora-Quesada, M.D., has filed a motion for rehearing. See TEX.
R. APP. P. 49.1. We deny the motion for rehearing but withdraw our prior memorandum
opinion and judgment and substitute the following memorandum opinion and
accompanying judgment in their place.
In this interlocutory appeal, appellant Jorge C. Zamora-Quezada, M.D., challenges
the denial of his motion to dismiss the health care liability claim of appellee Amalia
Mendoza. See TEX. CIV. PRAC. & REM. CODE. ANN. §§ 51.014(a)(9); 74.351(a), (b) (West,
Westlaw through 2017 1st C.S.). By two issues containing multiple sub-issues,
Dr. Zamora-Quezada argues that the trial court abused its discretion in not dismissing the
health care liability claim because: (1) the first expert’s report was deficient, and (2) the
second expert’s report was deficient. We affirm.
I. BACKGROUND
Mendoza filed suit against Dr. Zamora-Quezada alleging medical negligence for
prescribing methotrexate (MTX) to her from July of 2013 until June of 2014. Dr. Zamora-
Quezada, a rheumatologist, treated Mendoza for rheumatoid arthritis. Mendoza alleged
that Dr. Zamora-Quezada prescribed her MTX despite knowing that she had been
diagnosed with chronic renal failure and was undergoing kidney dialysis.
According to Mendoza’s expert reports, the MTX prescription resulted in Mendoza
making multiple trips to the Emergency Department of the Valley Baptist Harlingen
Hospital, until she was diagnosed with MTX toxicity on June 30, 2014. The reports explain
that as a result of Dr. Zamora-Quezada prescribing Mendoza MTX—a medication which
is removed from the body at a slower rate in patients with impaired renal function—
Mendoza suffered from ulcers in her esophagus and mouth and a “life-threatening low
blood count of white cells.” Mendoza’s petition states that as a result she suffered “mental
depression, pain, and anguish.”
2
Mendoza filed suit on August 8, 2016. Pursuant to the medical liability statute,
Mendoza filed an expert report authored by James M. Wheeler, M.D. See id. § 74.351(a).
On December 29, 2016, Dr. Zamora-Quezada filed objections to the qualifications of Dr.
Wheeler and a motion to dismiss. At a hearing on February 6, 2017, while stressing that
Dr. Wheeler’s report was sufficient, Mendoza requested a thirty day extension “to be on
the safe side” and file a second report. The trial court granted Mendoza the extension
without ruling on the motion to dismiss or finding Dr. Wheeler’s report deficient, and
Mendoza then filed a second expert report authored by Lige B. Rushing Jr., M.D. Dr.
Zamora-Quezada again filed objections, which were overruled, and a second motion to
dismiss, which was denied.1 This interlocutory appeal followed.
II. STANDARD OF REVIEW
We review a trial court’s decision on the sufficiency of an expert’s report and on a
motion to dismiss under the expert-report rule for an abuse of discretion. Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010). A court abuses its discretion if it acts in an
arbitrary or unreasonable manner and without reference to any guiding rules or principles.
Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex. 2017). “When reviewing
matters committed to the trial court’s discretion, ‘the reviewing court may not substitute
its judgment for that of the trial court.’” Miller v. JSC Lake Highlands Operations, LP, __
S.W.3d __ , __ , 2017 WL 6391215, at *2 (Tex. Dec. 15, 2017) (quoting Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992)).
1 Dr. Zamora-Quezada’s first motion to dismiss concerned only Dr. Wheeler’s report, while his
second motion to dismiss primarily concerned Dr. Rushing’s report. The record contains no written ruling
on the first motion to dismiss. However, both reports were considered at the hearing on the second motion
to dismiss. Accordingly, we will also consider both reports in determining whether the Chapter 74 expert
report requirements were met.
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III. APPLICABLE LAW
Section 74.351 of the Texas Civil Practice and Remedies Code provides that a
plaintiff in a health care liability suit must serve the defendant with a statutorily-compliant
expert report accompanied by the expert’s curriculum vitae (CV). See TEX. CIV. PRAC. &
REM. CODE. ANN. § 74.351. If a plaintiff fails to do so within 120 days of filing suit, the
statute provides that the trial court must dismiss the claim with prejudice on the
defendant’s motion. See id. § 74.351(a), (b)(2).
“A trial court must sustain a challenge to a report’s adequacy if the report does not
represent an objective good faith effort to provide a fair summary of the applicable
standard of care, the defendant’s breach of that standard, and how that breach caused
the patient’s harm.” Miller, __ S.W.3d at __ , 2017 WL 6391215, at *2 (internal quotations
omitted); see TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(l), (r)(6). “A good-faith effort
must ‘provide enough information to fulfill two purposes: (1) it must inform the defendant
of the specific conduct the plaintiff has called into question, and (2) it must provide a basis
for the trial court to conclude that the claims have merit.’” Miller, __ S.W.3d at __ , 2017
WL 6391215, at *2 (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)
(per curiam)). Also, a trial court may read several reports in concert to determine whether
a plaintiff has made a good-faith effort to comply with the expert-report requirements. Id.;
see TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(i).
All information needed for this inquiry is found within the four corners of the expert
report, which need not marshal all of the plaintiff’s proof. Jelinek, 328 S.W.3d at 539
(quoting Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 879, 879 (Tex.
2011)). However, the report cannot merely state the expert’s conclusions about the
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elements, but instead must explain the basis of the expert’s statements and link his
conclusions to the facts. Id.; see Samlowski v. Wooten, 332 S.W.3d 404, 409–10 (Tex.
2011) (plurality op.). In this inquiry, we are precluded from filling gaps in a report by
drawing inferences or guessing as to what the expert likely meant or intended. Fulp v.
Miller, 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi 2009, no pet.).
IV. DR. WHEELER’S EXPERT REPORT
By his first issue, which presents five sub-issues, Dr. Zamora-Quezada argues that
Dr. Wheeler’s expert report was deficient because: (1) he did not have the qualifications
to opine; (2) he did not satisfy the requirements to opine as to the standard of care; (3)
he did not set forth a breach of the standard of care; (4) he did not set forth proximate
cause; and (5) his report was “no report” because he failed to implicate appellant, and he
was unqualified.
A. Qualifications to Opine
To qualify as an expert on whether a physician departed from accepted standards
of medical care, a person must be a physician who: (1) is practicing medicine at the time
such testimony is given or was practicing medicine at the time the claim arose; (2) has
knowledge of accepted standards of medical care for the diagnosis, care, or treatment of
the illness, injury, or condition involved in the claims; and (3) is qualified on the basis of
training or experience to offer an expert opinion regarding those accepted standards of
medical care. TEX. CIV. PRAC. & REM. CODE. ANN. § 74.401(a) (West, Westlaw through
2017 1st C.S.).
A physician who does not specialize in the same area of medicine as the defendant
is competent to testify if he has practical knowledge of what is usually and customarily
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done by a practitioner under circumstances similar to those confronting the defendant.
See Roberts v. Williamson, 111 S.W.3d 113, 122 (Tex. 2003); Gelman v. Cuellar, 268
S.W.3d 123, 128 (Tex. App.—Corpus Christi 2008, pet. denied). Nevertheless, not every
licensed doctor is automatically qualified to testify on every medical question. Broders v.
Heise, 924 S.W.2d 148, 152 (Tex. 1996). Thus, the trial court’s inquiry should not focus
on the specialty of the medical expert. Tenet Hosps. Ltd. v. Love, 347 S.W.3d 743, 749–
50 (Tex. App.—El Paso 2011, no pet.). Instead, the trial court should look to “whether
the offering party has established that the expert has knowledge, skill, experience,
training or education regarding the specific issue before the court.” Gelman, 268 S.W.3d
at 128 (citing TEX. R. EVID. 702; Roberts, 111 S.W.3d at 121). “Therefore, a medical
expert from one specialty may be qualified to testify if he has practical knowledge of what
is customarily done by practitioners of a different specialty under circumstances similar
to those at issue in the case.” Love, 347 S.W.3d at 750 (citing Keo v. Vu, 76 S.W.3d 725,
732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)); see Gelman, 268 S.W.3d at 128.
Dr. Zamora-Quezada argues that the issue is whether a rheumatologist has
violated a medical standard of care that is specifically applicable only to rheumatologists,
and therefore Dr. Wheeler, a practicing reproductive endocrinologist and obstetrician-
gynecologist (Ob/Gyn), is disqualified. We disagree. The issue is whether a medical
doctor would prescribe MTX to an individual with renal failure and on kidney dialysis.
Further, as noted, the fact that Dr. Zamora-Quezada is a rheumatologist does not require
that Mendoza’s expert be a rheumatologist as well. See Roberts, 111 S.W.3d at 122.
Here, Dr. Wheeler’s expert report notes that he: is a medical doctor licensed to
practice in Texas since 1981; practiced medicine at the time of the injury and at the time
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he made the report; is board-certified in obstetrics and gynecology; has operated a private
practice since 2006 as a reproductive endocrinologist and Ob/Gyn; took courses in
urology during medical school and residency training; cared for hundreds of patients with
renal insufficiency and dozens of patients requiring hemodialysis and peritoneal dialysis
during medical school; treated “renal insufficiency/failure” as an emergency room
physician for several small Texas hospitals; has worked full-time as a primary care
provider to women as an Ob/Gyn, including diagnosing and treating issues involving the
urinary system, from 1994 to the present; and has clinical experience from 2013–2014—
the time when the alleged prescription and injury occurred—treating women with MTX
and women who have “renal insufficiency/failure/transplant.” Dr. Wheeler’s expert report
is accompanied by a thirty-page CV, showcasing accomplishments in medicine and
medical practice for over thirty years, and supporting the expertise claimed in his report.
The record reflects that Dr. Wheeler was practicing medicine at the time the claim
arose; has knowledge of the standards of care for the diagnosis, care, and treatment of
MTX toxicity; and displays qualification on the basis of his medical training and experience
during his career as a licensed physician. See TEX. CIV. PRAC. & REM. CODE. ANN. §
74.401(a). Further, the record reflects that Dr. Wheeler has knowledge, skill, experience,
training, and education regarding the standard of care when prescribing MTX to a patient
with renal failure and on dialysis. See Gelman, 268 S.W.3d at 128. Thus, the trial court
did not abuse its discretion by concluding that Dr. Wheeler was qualified to opine. See
Roberts, 111 S.W.3d at 122.
Finally, appellant also argues that Dr. Wheeler is specifically unqualified to opine
as to standard of care and causation; however, given the preceding discussion, the trial
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court could and did conclude that Dr. Wheeler was qualified to opine on those matters.
See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.401(a) (qualifications for expert witness on
standard of care), .403(a) (West, Westlaw through 2017 1st C.S.) (qualifications for expert
witness on the issue of causation); see also TEX. R. EVID. 702; Roberts, 111 S.W.3d at
122.
We overrule appellant’s first sub-issue as to Dr. Wheeler’s report.
B. The Standard of Care
By his second sub-issue, Dr. Zamora-Quezada argues that “[b]ecause Dr. Wheeler
is not qualified to opine on the standard of care for a rheumatologist, any opinions he
expresses on standard of care are speculative and without foundation. As such,
[Mendoza’s] initial . . . filing did not meet the requirements of” the medical liability statute.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). However, as previously noted, the
trial court did not abuse its discretion in finding that Dr. Wheeler was qualified to opine as
an expert on the standard of care.
Furthermore, we note the following from Dr. Wheeler’s report setting forth the
applicable standard of care:
The following standards of care were applicable to Dr. Zamora, as well as
to all physicians who prescribe MTX, in his care of Ms. Mendoza in 2013 –
2014:
1) At every visit, major medical conditions such as chronic renal failure
requiring hemodialysis should be recorded.
2) MTX should not be given to a patient with chronic renal failure on
hemodialysis.
3) If MTX is prescribed without recognizing the presence of chronic renal
failure/hemodialysis, once this serious condition is identified, MTX should
be immediately discontinued.
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4) If MTX somehow continues to be prescribed, and signs/symptoms of
classic drug toxicity presents, e.g. mouth ulcers on MTX therapy in a woman
at high risk for toxicity, the drug causing the toxicity should be immediately
discontinued.
See Palacios, 46 S.W.3d at 880. Thus, Mendoza’s initial filing did have an opinion on the
standard of care that satisfied the requirement of the medical liability statute. See TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
We overrule Dr. Zamora-Quezada’s second sub-issue as to Dr. Wheeler’s report.
C. Breach of the Standard of Care
By his third sub-issue, Dr. Zamora-Quezada argues that Dr. Wheeler’s report does
not inform him with sufficient specificity of the conduct Mendoza calls into question as a
breach of the standard of care. Palacios, 46 S.W.3d at 875; see TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(r)(6).
We note the following from Dr. Wheeler’s expert report:
These [medical records of Mendoza] clearly demonstrate Dr. Zamora
departed from his standards of care by:
1) Failing to always record, and notice, a diagnosis as major as chronic
renal failure on each and every patient visit of Ms. Mendoza.
2) Prescribing MTX to Ms. Mendoza, who has chronic renal failure and is
on hemodialysis.
3) Once recognizing a risk factor such as chronic renal failure, failing to
immediately stop the contraindicated MTX.
4) When presented with a classic sign/symptom of MTX toxicity, failing to
recognize it as such and discontinue the drug immediately.
For Dr. Zamora to prescribe MTX to a patient like Ms. Mendoza, a
diabetic/hypertensive/variably compliant woman with renal failure on
hemodialysis, is an egregious breach of the standard of care, comprising
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reckless disregard for the consequences of one’s care of a very ill, and
vulnerable, patient.
In this case, Dr. Wheeler clearly identified the standard of care applicable, stated
they applied to Dr. Zamora-Quezada in this situation, and how he breached them.
Therefore, the trial court, in its discretion, could have concluded that Dr. Wheeler’s report
contained an adequate opinion regarding Dr. Zamora-Quezada’s breach of the applicable
standard of care. See Jelinek, 328 S.W.3d at 539–40.
Appellant also argues that Dr. Wheeler’s conclusions as to the breach of the
standard of care are baseless because “the records [attached to Dr. Zamora-Quezada’s
motion to dismiss] actually clearly demonstrate appellant was not involved in [Mendoza’s]
care and treatment.” Specifically, appellant argues that physician assistant Lillian
Williams was the one who saw Mendoza and prescribed MTX and that Williams was
employed by a different entity. As support, appellant points to his affidavit testimony and
medical records that he attached to his objections to Dr. Wheeler’s report and motion to
dismiss. Appellant goes on to argue:
In evaluating the trustworthiness of statutory reports, appellate courts have
applied a practical approach that disallows outside evidence to bolster a
report, but permits extrinsic evidence to prevent plaintiffs from going forward
with lawsuits based on false or incorrect information contained in these
reports. See, e.g., Baptist Hospitals of Southeast Texas v. Carter, No. 09-
08-067 CV, 2008 WL 2917109 at *6-8, 10, 14, n. 4 (Tex. App.—Beaumont
July 31, 2008, no pet.) (mem. op.) (Court is authorized to consider extrinsic
evidence outside of the four corners of the expert’s report to determine the
validity of the statements reflected therein); Packard v. Guerra, 252 S.W.3d
511, 533 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); Lovato v.
Austin Nursing Ctr., Inc., No. 03-02-00305-CV, 2003 WL 1561203 at *3
(Tex. App.—Austin Mar. 27, 2003, no pet.) (mem. op.).
This passage fails to disclaim that a trial court’s consideration of extrinsic evidence
outside the four corners of the expert’s report to undermine it has been rejected by four
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of our sister courts, including the court that issued Carter. See Gonzalez v. Padilla, 485
S.W.3d 236, 246 (Tex. App.—El Paso 2016, no pet.) (concluding that the rule in Carter
regarding consideration of “parole evidence” is inconsistent with the Eighth Court of
Appeals’ previous approach to scope of review at the expert report stage of litigation);
Gannon v. Wyche, 321 S.W.3d 881, 891 n.5 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (disagreeing with the reasoning in Carter because it is contrary to the supreme
court’s instruction that the inquiry regarding the adequacy of an expert report is limited to
the four corners of the report); Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—
Houston [1st Dist.] 2010, no pet.) (agreeing with appellee that any review of the source
material, which is outside the four corners of a chapter 74 report, violates the “four
corners” rule of Palacios); see also Christus Health Se. Tex. v. Broussard, 306 S.W.3d
934, 937–38 (Tex. App.—Beaumont 2010, no pet.) (“Because defendants’ motion asked
the trial court to look beyond the four corners of the report and determine fact issues
based on an affidavit and documents not reviewed or relied on by the expert, the trial
court did not abuse its discretion in denying the motion to dismiss.”).2 Joining our sister
courts, we find no abuse of discretion in the trial court’s refusal to consider appellant’s
affidavit testimony and the accompanying medical records in order to undermine
2 Appellant’s reliance on Packard v. Guerra, 252 S.W.3d 511, 533 (Tex. App.—Houston [14th Dist.]
2008, pet. denied), and Lovato v. Austin Nursing Ctr., Inc., No. 03-02-00305-CV, 2003 WL 1561203, at *3
(Tex. App.—Austin Mar. 27, 2003, no pet.) (mem. op.), belies rather than supports appellant’s contention.
In Packard, the appellate court held that a corporate attorney’s report “connecting the dots” between each
entity (and individual) and its (or their) responsibility for training programs or management of emergency
rooms did not violate the proscription against going outside the four corners of an expert report to rely on
extrinsic data. 252 S.W.3d at 530–33. In Lovato, the court wrote that “to determine whether a report meets
the statutory requirements and whether the claims have merit, a trial court need not look at the expert report
in isolation. Instead, the trial court must necessarily be permitted to examine a plaintiff’s pleadings.” 2003
WL 1561203 at *3.
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Dr. Wheeler’s report. See Gonzalez v. Padilla, 485 S.W.3d at 246; Mettauer, 326 S.W.3d
at 691; Gannon, 321 S.W.3d at 891 n. 5; Broussard, 306 S.W.3d at 397–98.
We also note that, an expert report is not intended to marshal all of the plaintiff’s
proof. Jelinek, 328 S.W.3d at 539; Palacios, 46 S.W.3d at 879 (“The report can be
informal in that the information in the report does not have to meet the same requirements
as the evidence offered in a summary-judgment proceeding or at trial.”). Further, this
argument is improper under a motion to dismiss based on the expert-report rule. See
TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351; see also TEX. R. CIV. P. 166a (rule governing
summary judgment); Fagadau v. Wenkstern, 311 S.W.3d 132, 139 (Tex. App.—Dallas
2010, no pet.) (report can be good-faith effort even if expert’s opinions could later be
proved incorrect).
We overrule appellant’s third sub-issue as to Dr. Wheeler’s report.
D. Proximate Cause
By his fourth sub-issue, appellant claims that Dr. Wheeler’s report is deficient
because it fails to properly set out proximate causation.
An expert report “cannot simply opine that the breach caused the injury” but rather
must, “to a reasonable degree, [explain] how and why the breach caused the injury based
on the facts presented.” Jelinek, 328 S.W.3d at 539–40. If it fails to do so, it “does not
give the trial court a reasonable basis for concluding that the lawsuit has merit.” Id. at539
(citing Palacios, 46 S.W.3d at 879).
We note the following passage from Dr. Wheeler’s expert report:
The records reviewed hold absolute consensus as to what caused
[Mendoza’s] stomatitis and pancytopenia—MTX toxicity. The medical
literature demonstrates absolute consensus that MTX is contraindicated in
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chronic renal failure/hemodialysis patients, like Ms. Mendoza.[3] Proximate
cause is profoundly clear in Ms. Mendoza’s case, with no competing causes
evident from this record review. . . . I am quite reasonably medically certain
that Dr. Zamora’s grossly negligent prescription of MTX directly and
proximately cause[d] Ms. Mendoza’s injuries.
This paragraph establishes a causal relationship between Dr. Quezada’s
negligence (i.e., prescribing MTX to a patient with renal failure) and the harm suffered
(i.e., MTX toxicity resulting in stomatitis and pancytopenia). See Tenet Hosps. Ltd. v.
Barajas, 451 S.W.3d 535, 547–48 (Tex. App.—El Paso 2014, no pet.) (“the expert report
must explain the basis for the causation opinions by linking the expert’s conclusions to
the alleged breach”). In other words, this is more than a mere conclusory assertion. See
Jelinek, 46 S.W.3d at 540; Palacios, 46 S.W.3d at 879.
We overrule appellant’s fourth sub-issue as to Dr. Wheeler’s report.
E. “No Report”
By his fifth sub-issue, appellant argues that “Dr. Wheeler’s report was ‘no report’
as to standard of care, breach[,] or causation; in addition, he was not qualified. Since
3 In an earlier section of his expert report, Dr. Wheeler explains the relevant medical literature on
how MTX interacts with the human body to cause the type of injuries in a patient like Mendoza:
Renal impairment and age, like those of Ms. Mendoza, are considered major risk factors
of developing MTX toxicity. Patients on hemodialysis for their chronic renal failure, like Ms.
Mendoza, are at particular risk for MTX toxicity; the mechanism of this toxicity may be due,
in part, to the increased free, active proportion of MTX that is found in hemodialysis
patients. Chronic renal failure patients often have less circulating proteins in their serum,
including reduced serum albumin, which is the main protein that binds many medications,
including MTX. Multiple factors, including percent of unbound molecules, go into whether
a medication’s blood level is reduced during hemodialysis; MTX blood levels are less
effected by dialysis than other medications. The pharmacology literature contains such
clear admonitions that “MTX is an example of a drug that should no longer be prescribed”
in the presence of kidney failure.
In exercising its discretion, it is incumbent upon the trial court to review the report, sort out its content,
resolve any inconsistencies, and decide whether the report demonstrates a good faith effort to show that
the plaintiff’s claims have merit. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex.
2015). If a trial court may reconcile inconsistencies within a report, it may also read complementary
passages in different sections of a report together. See id.
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[Mendoza’s] report failed to meet the statutory requirements and did not implicate [Dr.
Zamora-Quezada], the initial [expert] report was not merely deficient, it was ‘no report.’”
A report must at a minimum (1) be timely served, (2) contain the opinion of a
qualified expert, and (3) implicate the defendant’s conduct. Scoresby v. Santillan, 346
S.W.3d 546, 557 (Tex. 2011). Dr. Zamora-Quezada concedes that Dr. Wheeler’s report
was timely served. And, as previously discussed, the trial court did not abuse its
discretion by concluding that Dr. Wheeler was qualified; that he provided a standard of
care, a breach of that standard, and causation of Mendoza’s injuries; and that his report
specifically implicated Dr. Zamora-Quezada’s conduct as Mendoza’s physician. Thus,
Dr. Wheeler’s report was a statutorily-compliant report. See TEX. CIV. PRAC. & REM. CODE.
ANN. § 74.351.
Nevertheless, Dr. Zamora-Quezada argues that Dr. Wheeler’s report is “no report”
because the records and evidence attached to Dr. Zamora-Quezada’s motion to dismiss
clearly established that Williams was the one who saw Mendoza and prescribed MTX.
However, as noted earlier, this is an inappropriate ground to dismiss under the expert-
report rule. See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.351(b); Jelinek, 328 S.W.3d at
539; see also TEX. R. CIV. P. 166a (rule governing summary judgment); Palacios, 46
S.W.3d at 879; Fagadau, 311 S.W.3d at 139.
Dr. Wheeler’s report does not have to present all of Mendoza’s proof, but it must
discuss the standard of care, breach, and causation with sufficient specificity to (1) inform
Dr. Zamora-Quezada of the conduct Mendoza has called into question and (2) provide a
basis for the trial court to conclude that Mendoza’s claims have merit. See In re Buster,
275 S.W.3d 475, 476–77 (Tex. 2008) (orig. proceeding) (per curiam); Palacios, 46
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S.W.3d at 878–79. The trial court did not abuse its discretion in concluding Dr. Wheeler’s
report did that.
We overrule Dr. Zamora-Quezada’s fifth sub-issue as to Dr. Wheeler’s report.
F. Summary
Having found that the trial court did not abuse its discretion in finding Dr. Wheeler
qualified to opine and that his expert report duly set forth duty, breach, and causation, we
conclude that the trial court did not abuse its discretion in denying Dr. Zamora-Quezada’s
motion to dismiss. Miller, __ S.W.3d at __ , 2017 WL 6391215, at *2; see TEX. CIV. PRAC.
& REM. CODE. ANN. § 74.351(i).
We overrule appellant’s first issue.
V. DR. RUSHING’S EXPERT REPORT
By his second issue, Dr. Zamora-Quezada argues that Dr. Rushing’s expert report
was deficient. However, we need not reach this issue in light of our conclusion that
Dr. Wheeler’s report was sufficient to satisfy the statute. See TEX. CIV. PRAC. & REM.
CODE. ANN. § 74.351; TEX. R. APP. P. 47.1.
Nevertheless, we point out that Dr. Rushing’s report further evidences Mendoza’s
fulfillment of her good-faith effort to comply with the statute. See TEX. CIV. PRAC. & REM.
CODE. ANN. § 74.351(i), (l), (r)(6); Miller, __ S.W.3d at __ , 2017 WL 6391215, at *2
(holding expert reports can be read in concert). Dr. Rushing’s report discusses
Mendoza’s medical records, MTX toxicity, duty, breach, and causation, and it parallels
Dr. Wheeler’s opinions and conclusions. Finally, Dr. Rushing is a board certified
rheumatologist and practiced as a rheumatologist at the time of the injury and at the time
of her expert report.
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VI. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Delivered and filed the
12th day of April, 2018.
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