Carol Wooten v. Eberhard Samlowski, M.D.

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00305-CV

Carol Wooten,

                                                                                    Appellant

 v.

Eberhard Samlowski, M.D.,

                                                                                    Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. C200700032

DISSENT TO DENIAL OF MOTION FOR REHEARING

            Pending before the Court is Samlowski’s motion for rehearing.  Wooten v. Samlowski, ___ S.W.3d ___, 2008 Tex. App. LEXIS 3709 (Tex. App.—Waco May 21, 2008, no pet. h.).  The appeal involves expert reports required by Section 74.351 of the Texas Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2007).  The majority’s existing opinion concluded that “the trial court did not err or abuse its discretion in determining that the report does not represent a good-faith effort to summarize the causal relationship between Dr. Samlowski’s failures to meet the applicable standards of care and Wooten’s claimed injury, harm, and damages.”  Wooten, 2008 Tex. App. LEXIS 3709 at *19.  I agreed.  Two paragraphs later, however, the majority opinion concluded “[w]hile the report is technically deficient because of the inadequate causal link, the report can only be described as a good-faith attempt to comply with [the statute].”  Id.  (Emphasis in original).  I disagreed.  My mind is not capable of determining the niceties of the distinction that could make what was not a good-faith effort nevertheless be a good-faith attempt. I dissent to the denial of the motion for rehearing.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissent to denial of motion for rehearing delivered and filed July 9, 2008

0;  Rule 42.1(a) of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk;

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a).

      Accordingly, this cause is dismissed with costs to be taxed pursuant to the party’s agreement. 

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed June 30, 1999

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