Jorge De La Garza, M.D. v. Gary E. Schruz

NUMBER 13-10-00468-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE DE LA GARZA, M.D., Appellant,
v.
GARY E. SCHRUZ, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Garza
When a medical malpractice plaintiff files an expert report that absolves the
defendant doctor of any liability, is it even a ―report‖ at all? That is the question posed in
the instant appeal, in which appellant Jorge De La Garza, M.D., argues that the trial
court should have dismissed the claims brought against him by appellee Gary E.
Schruz. We dismiss the appeal for want of jurisdiction.
I. BACKGROUND
On October 30, 2009, Schruz sued Dr. De La Garza and Doctors Hospital at
Renaissance (―Doctors Hospital‖),1 alleging medical negligence in connection with the
care and treatment provided to Schruz during and after undergoing heart surgery. On
February 26, 2010, one day prior to the statutory deadline, Schruz filed a purported
medical expert report pursuant to chapter 74 of the civil practice and remedies code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). The report, authored
by Mitchell Brooks, M.D., consists of an initial three-page analysis of Schruz‘s case as
well as a two-page ―Addendum,‖ also dated and served on February 26, 2010. The
initial analysis states in part:
The clinical records currently available for review essentially document the
admission and treatment of [Schruz] for ischemic heart disease that
resulted in the performance of a coronary artery bypass graft x4. . . .
Jorge De La Garza, M.D. performed the aforementioned surgery on
November 19, 2007. The patient was transferred to the intensive care unit
that same day at approximately 12:15 PM. What appears to be at issue in
this case is whether or not a standard of care was violated with respect to
the development and subsequent treatment of a decubitus ulcer. Based
on my review and analysis of the clinical records it would appear that such
a standard of care was violated on the part of the attending surgeon,
Jorge De La Garza, M.D. in that he failed to address the issue of the
stasis ulcer in a timely manner, such that further breakdown resulted in a
surgical debridement and additional care to the ulcer site.
....
At this point in time I am unable to identify any documentation that
indicates that Dr. De La Garza took any action with respect to actively
treating the decubitus ulcer until November 26, 2007. This delay[,] in my
opinion[,] probably resulted in the surgical treatment of the decubitus ulcer
that subsequently occurred as a result of the failure to address the issue in
a timelier manner.
1
Doctors Hospital is not a party to this appeal.
2
....
There is additional information that has currently been made available to
me and I am present[ly] aware of, the content of which is not included in
this report. This information includes progress notes from multiple
physicians during that time frame between November 20, 2007 and
November 26, 2007. If I am able to ascertain whether or not Dr. De La
Garza addressed the issue of the pressure ulcer then the clinical picture
and treatment will become clearer. If the records indicate that the
attending physician initiated no treatment then the opinion expressed
herein will hold. . . .
The ―Addendum,‖ which directly follows the initial analysis and forms pages four and
five of Dr. Brooks‘s report, states in part:
I have now had the opportunity to review additional documents with
respect to the above referenced case. These include the ―Physician‘s
Order Sheets‖ during the dates of stay at the [hospital] as well as the Daily
Progress Notes that were created by the large number of physicians
attending this patient.
It would appear that a triple antibiotic ointment or cream was ordered on
November 22, 2007 to be applied twice daily to the lesion. . . .
Furthermore, a skin care consultation was ordered on November 24, 2007
and after a review of the wound care consult dated November 26, 2007, it
would appear that the patient had an air mattress prior to that date to
address the possibility of a sacral decubitus ulcer and furthermore, the
record also indicates that there were numerous diaper changes started on
or about November 25, 2007, presumably to make sure the skin in the
perineal area would not become moist. Whoever performed the wound
care consult (I am unable to read the signature) further indicated the need
to change the patient‘s mattress. In summation then, it would appear that
the physician component of the care was in all probability not
unreasonable with respect to its timing and the actual treatment
rendered. . . .
Dr. Brooks goes on to state that it ―appear[s] that there may very well have been some
significant nursing procedures that were violated with respect to communication and the
obtaining of a wound care consultation. . . .‖ Nevertheless, according to Dr. Brooks,
―[f]rom the physician perspective, it would thus appear at this point in time that the
sequence of events and the apparent treatment does not appear to be unreasonable or
3
outside the standard of care of the community in which the patient was treated.‖
On March 12, 2010, Dr. De La Garza moved to dismiss the suit on grounds that
Dr. Brooks‘s report was insufficient. Dr. De La Garza further contended that the report
did not actually constitute a ―report‖ under the statutory definition, and that Schruz was
therefore not entitled to any extension of time to file an amended report. See id.
§ 74.351(b), (c). Schruz responded by claiming that the report was sufficient or, in the
alternative, that the trial court should grant an extension of time to cure any deficiency in
the report. After a hearing, the trial court determined on August 3, 2010 that the report
was ―deficient‖—rather than ―no report‖—and granted Schruz‘s request for a thirty-day
extension of time to file a sufficient report. This interlocutory appeal followed. See id.
§ 51.014(a)(9) (West 2008) (permitting appeal of interlocutory order denying all or part
of a motion to dismiss for failure to serve an expert report in a health care liability claim);
Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009) (―A provider may pursue an
interlocutory appeal of the denial of a motion to dismiss when no expert report has been
timely served, whether or not the trial court grants an extension of time.‖ (Emphasis
added.)); cf. Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007) (holding that, if a
deficient report is served and the trial court grants a thirty-day extension, that decision,
even if coupled with a denial of a motion to dismiss, is not subject to interlocutory
appeal).
II. DISCUSSION
A. Standard of Review
We review a trial court‘s order denying a motion to dismiss for failure to comply
with the expert report requirement under an abuse of discretion standard. NCED
4
Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.)
(applying abuse of discretion standard to trial court‘s denial of motion to dismiss);
Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied)
(same); see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878
(Tex. 2001) (applying abuse of discretion standard to trial court‘s granting of motion to
dismiss). A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner or without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). However, a trial court has no
discretion in determining what the law is or in applying the law to the facts. Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d
909, 916 (Tex. App.–Dallas 2007, pet. denied).
B. Applicable Law
Under chapter 74, a plaintiff asserting a health care liability claim must serve a
medical expert report upon each party's attorney no later than the 120th day after the
date the original petition was filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The
report must
provide[] a fair summary of the expert‘s opinions as of the date of the
report regarding applicable standards of care, the manner in which the
care rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.
Id. § 74.351(r)(6). Although a report need not marshal all of a claimant‘s proof, it must
include the expert‘s opinion on each of the elements identified in section 74.351.
Palacios, 46 S.W.3d at 878.
5
When a defendant files a motion challenging the adequacy of a report, the trial
court will grant the motion only if, after a hearing, it appears that the report does not
represent an ―objective good faith effort to comply with the definition of an expert report
in Subsection (r)(6).‖ TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To constitute a
―good faith effort,‖ the report must provide enough information to (1) inform the
defendant of the specific conduct the plaintiff has called into question, and (2) provide a
basis for the trial court to conclude that the claims have merit. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Palacios, 46 S.W.3d at 879.
If an expert report has been served within the 120-day period but elements of the
report are found deficient, the court may grant one thirty-day extension to the claimant
in order to cure the deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). On the
other hand, if no expert report at all is filed within the 120-day period, no extension is
permitted, and the trial court must dismiss the claim against the defendant and award
reasonable attorney‘s fees. Id. § 74.351(b).
C. Analysis
In the ―Addendum‖ attached to his report, Dr. Brooks stated that ―the physician
component of the care [given to Schruz] was in all probability not unreasonable‖ and
that ―[f]rom the physician perspective, . . . the apparent treatment does not appear to be
unreasonable or outside the standard of care of the community in which the patient was
treated.‖ Neither party disputes that these statements render the report insufficient to
satisfy the requirements of the expert report statute, in part because the report did not
―provide a basis for the trial court to conclude that the claims [against Dr. De La Garza]
have merit.‖ Bowie Mem’l Hosp., 79 S.W.3d at 52. The sole question for this Court,
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then, is whether Dr. Brooks‘s report was so insufficient as to constitute no report—in
other words, an ―absent report‖—such that Schruz would not be entitled to a thirty-day
extension of time to cure any deficiencies.
The Texas Supreme Court has not yet squarely addressed this issue. However,
several recent cases presented similar fact patterns. In Ogletree v. Matthews, the
defendant urologist argued that the plaintiff‘s expert reports were so deficient as to be
―nonexistent‖ because they were authored by nurses and a radiologist. 262 S.W.3d
316, 318 (Tex. 2007). The Court noted that a ―deficient‖ report differs from an ―absent‖
report in one ―important respect‖: when the former is served by a health care liability
plaintiff, the trial court retains its discretion to grant a thirty-day extension to cure the
report; whereas when the latter is served, no extension is permitted. Id. In that case,
the Court concluded that the expert reports were ―deficient,‖ and not ―absent.‖ Id. at
321. In a concurring opinion, Justice Willett observed that, in addition to ―deficient‖ and
―absent‖ reports, ―there exists a third, albeit rare, category: a document so utterly
lacking that, no matter how charitably viewed, it simply cannot be deemed an ‗expert
report‘ at all, even a deficient one.‖ Id. at 323 (Willett, J., concurring). Such a document
may not purport to be a report at all, and its author may not have intended
it as such. For example, it may (by its own terms) be provider
correspondence or perhaps ―medical or hospital records or other
documents‖ or other health-related paperwork that, while related to the
patient‘s care and condition, neglects altogether to address the
rudimentary elements of an expert report; indeed, it may never and
nowhere accuse anyone of doing anything wrong. Such information
certainly constitutes discoverable and highly relevant information in a
lawsuit, but any claimant passing off such material as an expert report,
and any court treating it as such, evinces a complete disregard for
Chapter 74‘s unambiguous statutory criteria.
Id. (footnotes omitted).
7
Several months after Ogletree, in Lewis v. Funderburk, 253 S.W.3d 204 (Tex.
2008), the supreme court enjoyed an ―actual sighting of this rare bird.‖ Id. at 210
(Willett, J., concurring). In Lewis, the defendant doctor moved to dismiss the plaintiff‘s
case against him for failure to file an expert report. Id. at 206. In response, the plaintiff
pointed to a ―thank-you-for-your-referral letter‖ in the medical records. Id. The trial
court denied the defendant‘s motion to dismiss and granted the plaintiff a thirty-day
extension, during which the plaintiff filed a second report. Id. The defendant again
moved to dismiss, the trial court again denied the motion, and the defendant appealed.
Id. at 206-07. The appellate court dismissed the appeal for lack of jurisdiction, but the
supreme court reversed, noting that subsection 74.351(c) ―defines a timely but deficient
report as one that ‗has not been served,‘‖ and therefore, an interlocutory appeal was
permitted in that case under subsection 74.351(b). Id. at 207-08; see TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014 (permitting appeal of interlocutory order dismissing case
under subsection 74.351(b)); id. § 74.351(b) (requiring dismissal when report ―has not
been served‖ within 120 days). In another concurring opinion, Justice Willett argued
that the defendant in Lewis was entitled to appeal the trial court‘s initial denial of his
motion to dismiss for failure to file an expert report, because the initial report was, in
effect, no report at all. Lewis, 253 S.W.3d at 210 (Willett, J., concurring). ―This doctor-
signed letter is no more a report than a doctor-signed prescription or Christmas card
would be.‖ Id. at 211. In contrast to the report at issue in Ogletree, the initial report in
Lewis ―totally omits the required statutory elements, . . . makes no colorable attempt to
demonstrate liability,‖ and ―never once accuse[s] anyone of doing anything wrong.‖ Id.
8
at 211-12 (internal quotations omitted). Therefore, according to Justice Willett, the trial
court had no choice but to grant the defendant‘s initial motion to dismiss. Id. at 212.
Similarly, in In re Watkins, a health care liability plaintiff filed a purported expert
report that ―was merely a narrative of treatment, and failed to address the standard of
care, breach, or causation.‖ 279 S.W.3d 633, 633 (Tex. 2009) (orig. proceeding). After
the trial court granted a thirty-day extension, the plaintiff filed a new report, which the
defendant did not challenge. Id. at 633-34. On appeal and by a petition for writ of
mandamus, the defendant sought review of the trial court‘s granting of the thirty-day
extension. Id. at 634. In a majority opinion, this Court found that, because the trial
court implicitly found the report to be merely deficient—and not so woefully inadequate
as to constitute no report at all—it did not abuse its discretion in granting the extension.
Watkins v. Jones, 192 S.W.3d 672, 675 (Tex. App.–Corpus Christi 2006, no pet.)
(combined appeal & orig. proceeding). Without determining whether the report was
absent or merely deficient, a majority of the supreme court agreed that mandamus was
unwarranted. In re Watkins, 279 S.W.3d at 634. The Court reasoned that ―[i]f no report
was served, an interlocutory appeal was available, so mandamus is unnecessary. If the
report was merely deficient, than an interlocutory appeal was prohibited, and granting
mandamus to review it would subvert the Legislature‘s limit on such review.‖ Id.
(footnotes omitted).
In concurring with the judgment, Justices Johnson and Willett opined that the
purported expert report in Watkins was not, in fact, an expert report at all, because it
―does not purport to have any relationship to a health care liability or malpractice case.‖
Id. at 635 (Johnson, J., concurring); id. at 637 (Willett, J., concurring) (noting that the
9
purported expert report ―omits all three (four if you count the missing curriculum vitae;
five if you count the absence of any expert opinion)‖ statutory requirements and stating
that ―[t]his is no more an expert report than my son‘s tricycle is a Harley‖). According to
Justices Johnson and Willett, because this case involved an absent report rather than a
deficient report, the defendant had the right to appeal the trial court‘s interlocutory order
denying dismissal. Id. at 635-36, 639-40; see Badiga, 274 S.W.3d at 685 (―A provider
may pursue an interlocutory appeal of the denial of a motion to dismiss when no expert
report has been timely served, whether or not the trial court grants an extension of
time.‖). Having found that the defendant had an adequate remedy by appeal, Justices
Johnson and Willett concurred in the majority‘s judgment that mandamus was
inappropriate. In re Watkins, 279 S.W.3d at 636 (Johnson, J., concurring); id. at 639-40
(Willett, J., concurring). In his concurrence in Watkins, Justice Willett summed up his
views on this issue as previously expressed in Ogletree and Lewis:
I concede that courts, this one included, cannot decree with micrometer-
like precision when something falls from deficient to so-deficient-it‘s-
absent. Each case has its own distinct facts, but judges are not incapable
of applying indistinct lines, or at a minimum prescribing the outer ones.
One bright-line marker seems beyond reasonable objection: when a
―report‖ contains none of the statutorily prescribed contents. . . . If a
document bears zero resemblance to the statute—containing nothing that
makes a report a report—it cannot receive an extension.
In re Watkins, 279 S.W.3d at 639.
Despite having reviewed several cases presenting variations on the ―no report v.
deficient report‖ theme, a majority of the high Court has not yet defined exactly when a
report constitutes no report at all. And, although several courts of appeals have
considered whether a document purporting to be an expert report is in fact worthy of the
10
name,2 no court has yet been asked, as we are here, whether a document disavowing
any liability on the part of the defendant is ―no report‖ at all. We conclude that, under
the applicable supreme court precedent, such a document must instead be considered
―merely deficient,‖ and a claimant filing such a document may be given a thirty-day
extension to cure the deficiencies under the statute.
In Ogletree, the majority of the supreme court implicitly limited ―the universe of
possible reports‖ to ―two (and only two) types: absent reports, which have not been filed
at all and require dismissal of the case, and deficient reports, which have been timely
filed and may receive an extension.‖ 262 S.W.3d at 323 (Willett, J., concurring).
Justices Johnson and Willett have argued in concurring opinions that there is in fact a
third category of purported reports—those that have been filed but are ―so utterly
2
Compare Bogar v. Esparza, 257 S.W.3d 354, 364-69, 373 (Tex. App.–Austin 2008, no pet.)
(concluding that the purported expert report at issue was no report as to appellant because it failed to
identify appellant, failed to describe the applicable standard of care, failed to describe how appellant may
have breached the standard of care, and, consequently, failed to implicate any person‘s conduct),
Rivenes v. Holden, 257 S.W.3d 332, 338-39 (Tex. App.–Houston [14th Dist.] 2008, pet. denied)
(determining that a purported expert report did not implicate appellant‘s conduct and was not a statutory-
compliant expert report as to appellant because it offered no opinions concerning appellant's conduct, it
failed to discuss how the care rendered by appellant failed to meet the applicable standard of care, and it
failed to set forth how appellant‘s failure to meet the standard of care caused plaintiff to suffer injury,
harm, or damages), and Apodaca v. Russo, 228 S.W.3d 252, 255-58 (Tex. App.–Austin 2007, no pet.)
(holding that a purported expert report was no report as to appellee because it failed to mention appellee
and it failed to discuss how the care rendered by appellee did not meet the applicable standard of care or
how appellee's failure caused the patient to suffer injury, harm, or damages) with Scoresby v. Santillan,
287 S.W.3d 319 (Tex. App.–Fort Worth 2009, pet. granted) (finding that ―this is not an absent report
case . . . in which we may entertain an interlocutory appeal from the trial court‘s denial of a motion to
dismiss because no report has been served‖), Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282-83 (Tex.
App.–Austin 2007, no pet.) (concluding that a purported expert report, which did not link the doctor‘s
conduct with the expert‘s conclusions, was nevertheless a ―merely deficient‖ report, in part because of the
report‘s ―tenor‖ and the fact that there was only one physician defendant), and Cook v. Spears, 275
S.W.3d 577, 580-82 (Tex. App.–Dallas 2008, no pet.) (finding purported expert reports to be merely
deficient, and not absent, in part because ―the required elements, while deficient, were not totally absent
from the reports such that appellees could not cure the deficiencies if granted an extension‖).
11
lacking‖ as to merit immediate dismissal—but that view has not been endorsed by a
majority of the Court.3 As our colleagues in Fort Worth stated in 2009:
At present, neither Ogletree nor any other supreme court opinion holds
that a timely served expert report containing a narrative that fails to
include any expert opinion on the standard of care, breach, or causation is
tantamount to no report at all and thus ineligible for any section 74.351(c)
extension. Until a majority of the supreme court so holds, such a
determination by this court would necessarily constitute a modification to
Ogletree‘s absent or deficient expert report limitation, which would be
improper because we are bound as an intermediate appellate court by
supreme court precedent.
Scoresby v. Santillan, 287 S.W.3d 319, 324 (Tex. App.–Fort Worth 2009, pet. granted)
(citing City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21 (Tex. App.–Corpus Christi
2002, no pet.) (―As an intermediate appellate court, we are bound to follow the
expression of the law as stated by the Texas Supreme Court and leave changes in the
law to that court or the legislature.‖)).
Here, although Dr. Brooks‘s purported report undisputedly failed to state that Dr.
De La Garza had breached any standard of care, the document was in fact timely
served. Because neither the supreme court nor this Court has recognized the
possibility that a timely filed report may be, in effect, no report, we have no choice but to
conclude that this is a ―deficient report‖ case, not an ―absent report‖ case. See
Scoresby, 287 S.W.3d at 325 (concluding that, regardless of whether the purported
expert report was ―utterly lacking,‖ it was timely served and so cannot be considered
―absent‖ under Ogletree). Accordingly, the trial court did not abuse its discretion in
3
Arguably, even if the view espoused by Justices Johnson and Willett was controlling, Dr.
Brooks‘s report would still be considered ―deficient‖ and not ―absent‖ or ―so-deficient-it‘s-absent,‖ because
the report does contain some of the elements prescribed by section 74.351. Cf. In re Watkins, 279
S.W.3d 633, 639 (Tex. 2009) (orig. proceeding) (Willett, J., concurring) (―If a document bears zero
resemblance to the statute—containing nothing that makes a report a report—it cannot receive an
extension.‖).
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denying Dr. De La Garza‘s motion to dismiss and granting Schruz a thirty-day extension
to file a compliant report.4 We overrule Dr. De La Garza‘s issue.
III. CONCLUSION
In light of our conclusion that the trial court did not err in finding Dr. Brooks‘s
report to be merely deficient, rather than no report at all, we dismiss the appeal for want
of jurisdiction. See TEX. R. APP. P. 43.2(f); Ogletree, 262 S.W.3d at 321 (holding that, if
a deficient report is served and the trial court grants a thirty-day extension, that
decision, even if coupled with a denial of a motion to dismiss, is not subject to
interlocutory appeal).
DORI CONTRERAS GARZA
Justice
Dissenting Memorandum Opinion by Justice Rose Vela.
Delivered and filed the
2nd day of June, 2011.
4
The dissent states, without reference to authority, that ―if a report that fails to mention the
conduct of a physician is no report as to that physician, then a report that absolves the physician of
negligent conduct is also ‗no report.‘‖ But, as noted, the Texas Supreme Court has yet to acknowledge
the possibility that a report, while not absent, might be so deficient that the trial court loses its discretion to
grant a thirty-day extension under subsection 74.351(c). See Scoresby, 287 S.W.3d at 324. It is not the
function of this Court to abrogate or modify established precedent; that function lies solely with the
supreme court. Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002). We refuse, as the dissent recommends, to entertain the possibility of a report being ―so-deficient-
it‘s-absent‖ when there is no actual supreme court case law to support that position.
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