Valley Baptist Medical Center - Brownsville v. Rosalinda Battles, Gerald Battles, as Surviving Spouse of Rosalinda Battles, Amanda Giselle Battles, as Surviving Child of Rosalinda Battles, and Jeremy Blake Battles, as Surviving Child of Rosalinda Battles

ACCEPTED
13-14-00756-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/2/2015 4:08:08 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-00756-CV
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
SITTING AT CORPUS CHRISTI - EDINBURG,
3/2/2015TEXAS
4:08:08 PM
DORIAN E. RAMIREZ
Clerk
VALLEY BAPTIST MEDICAL CENTER APPELLANT
VS.
ROSALINDA BATTLES, GERALD
BATTLES, AS SURVIVING SPOUSE
OF ROSALINDA BATTLES,
AMANDA GISELLE BATTLES, AS
SURVIVING CHILD OF ROSALINDA
BATTLES AND JEREMY BLAKE
BATTLES, AS SURVIVING CHILD OF
ROSALINDA BATTLES APPELLEES
APPELLANT’S BRIEF
ON APPEAL FROM CAUSE NO. 2013-DCL-04983
IN THE 444TH JUDICIAL DISTRICT COURT
OF CAMERON COUNTY, TEXAS
SCOTT T. CLARK
ROGER W. HUGHES
WILL HUGHES
ADAMS & GRAHAM, L.L.P.
P.O. Drawer 1429
Harlingen, TX 78551-1429
Phone: (956) 428-7495 ORAL ARGUMENT IS
Fax: (956) 428-2954 REQUESTED
Attorneys for Appellant VALLEY BAPTIST MEDICAL CENTER
IDENTITY OF THE PARTIES AND COUNSEL
1. Appellant:
Defendant Attorney
Valley Baptist Medical Center- Scott T. Clark
Brownsville sclark@adamsgraham.com
Roger W. Hughes
rhughes@adamsgraham.com
Will Hughes
willhughes@adamsgraham.com
ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
Phone (956) 428-7495
Fax (956) 428-3954
2. Appellees
Plaintiffs Attorneys
Rosalinda Battles, Gerald Battles, as Robert Garza
Surviving Spouse of Rosalinda jrobert@rgarzalaw.com
Battles, Amanda Giselle Battles, as Myles R. Garza
Surviving Child of Rosalinda Battles myles@rgarzalaw.com
and Jeremy Blake Battles, as Law Office of Robert Garza, P.C.
Surviving Child of Rosalinda Battles 1200 E. Harrison St.
Brownsville, TX 78520
Phone (956) 544-1111
Fax (956) 544-1108
ii
TABLE OF CONTENTS
Page:
IDENTITY OF THE PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. When the purported report is “no report,” no extension
is permitted and the trial court must dismiss. . . . . . . . . . . . . . . . . . . . 1
B. Nurse O’Malley’s first report stated no opinions
and was “no report.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Caselaw demonstrates the trial court was obligated
to grant VBMC’s first motion to dismiss. . . . . . . . . . . . . . . . . . . . . . . 5
CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
TABLE OF AUTHORITIES
Page:
Cases:
Avila v. Jimenez, No. 13-13-00101-CV, 2013 WL 1500328
(Tex. App.–Corpus Christi 2013, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 3
Badiga v. Lopez, 253 S.W.3d 204 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Fung v. Fischer, 365 S.W.3d 507
(Tex. App.–Austin 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Haskell v. Seven Acres Jewish Senior Care Servs., Inc.,
363 S.W.3d 754 (Tex. App.–Houston
[1st Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5-7
Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255
(Tex. App.–San Antonio 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 9
Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 2
Reddy v. Hebner, 435 S.W.3d 323
(Tex. App.–Austin 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685
(Tex. App.–San Antonio 2011, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) . . . . . . . . . . . . . . . . . . 1, 2, 5, 9
Sinha v. Thurston, 373 S.W.3d 795
(Tex. App.–Houston [14th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . 3
Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston
[14th Dist.] 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iv
STATEMENT OF THE CASE
This is an expert report appeal in a healthcare liability claim. Appellees
asserted medical negligence claims against appellant Valley Baptist Medical Center
(VBMC) and provided an expert report from a nurse, Erin K. O’Malley. C.R. 5-15,
40-48; R.R. IV, X-1. App. 1. VBMC challenged the report and moved to dismiss.
C.R. 35-38. The trial court granted a thirty day extension, and Nurse O’Malley
provided a revised report. C.R. 51-52, 63-66; R.R. IV, X-2. App. 2. VBMC again
moved to dismiss, and that motion was denied. C.R. 53-59, 75. App. 3.
ISSUES PRESENTED
1. Was the first report from plaintiffs’ expert, Nurse Erin K. O’Malley, “no
report” because it:
a) failed to say anything about the standard of care for VBMC;
b) failed to say anything about how VBMC violated any standard of care;
c) failed to say anything about how any breach of a standard of care by
VBMC caused the death of Ms. Battles; and
d) failed to offer any opinion opinion that appellees’ claims have merit?
2. If the first report was “no report,” did the trial court have discretion to grant an
extension to cure deficiencies in the report, or was the trial court obligated to
grant VBMC’s motion to dismiss?
v
STATEMENT OF FACTS
On July 24, 2013, appellees sued Valley Baptist Medical Center (VBMC),
alleging that insufficient post-surgery monitoring of Rosalinda Battles caused
Battles’s death. C.R. 5. On November 21, 2013, VBMC received appellees’
purported expert report and C.V. from Nurse Erin K. O’Malley. C.R. 40. App. 1.
Nurse O’Malley wrote that she had reviewed an autopsy report, lab reports, and
medical records “regarding Mr. Bradford” (sic). C.R. 42; R.R. IV, X-1.
The remainder of Nurse O’Malley’s report stated:
Summary:
On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical
Center for a routine cholecystectomy and was admitted to a short stay
unit. The procedure was done without incident. The patients (sic) vital
signs remained stable throughout the procedure, and in post-operative
care. That evening around 5:30 pm the patient started complaining of
headaches, nausea, and vomiting. At 6:12 pm the patient exhibited
seizure activity. The patient lost consciences (sic), and a code was
called. The patient was intubated, given Lovenox, and transferred to the
intensive care unit. The patient was taken to CT scan, which showed
minimal edema, and no intracranial bleeding. The CT angiogram of the
chest showed no pulmonary embolism. The CT scan of the abdomen
showed no fluid collection. The patient developed a sub arachnoid and
subdural hemorrhage. This caused cerebral edema, hemorrhage,
necrosis, herniation at the brain stem area which eventually caused death.
The family was aware of her condition and decided that Ms. Battles
should be taken off life support. C.R. 42; R.R. IV, X-1; App. 1.
Nurse O’Malley’s report made no other comment about the care provided to Ms.
Battles. C.R. 42; R.R. IV, X-1; App. 1.
VBMC filed objections to Nurse O’Malley’s report and a motion to dismiss.
vi
C.R. 35. Appellees filed no response to VBMC’s motion to dismiss. The trial court
found that the report was deficient and granted a thirty day extension to cure the
deficiencies. C.R. 51-52; App. 2.
On February 7, 2014, appellees provided another report from Nurse O’Malley.
C.R. 65; R.R. IV, X-2. This second report added a section titled “Findings,” but even
this second report conceded “I cannot fully say that the standard of care concerning
the care of Mrs. Battles was breached.” C.R. 65; R.R. IV, X-2.
On March 12, 2014, VBMC filed objections to this second report and again
urged a motion to dismiss. C.R. 53. Appellees responded by arguing that VBMC’s
objections to the second report were untimely. C.R. 67.
As of December 3, 2014, the trial court had not yet ruled, and a status hearing
was held on the motion to dismiss. R.R. III, 5. At that hearing, the court invited
further arguments on the motion to dismiss. R.R. III, 7. VBMC argued that Nurse
O’Malley’s first report was “no report,” and the case should be dismissed on that
basis. R.R. III, 8-11. On December 10, 2014, the trial court denied VBMC’s second
objections and motion to dismiss. C.R. 75; App. 3.
vii
SUMMARY OF THE ARGUMENT
This appeal concerns the trial court’s abuse of discretion with regard to Nurse
O’Malley’s first report and VBMC’s first motion to dismiss. Because Nurse
O’Malley’s first report was “no report,” the trial court had no discretion to grant an
extension of time to cure the report, but rather was obligated to grant the first motion
to dismiss. The court’s erroneous extension does not cure this abuse of discretion, and
the timeliness of VBMC’s second motion to dismiss is a moot issue.
Texas law distinguishes between deficient expert reports and purported reports
that are really no report at all. A thirty day extension may be granted to cure a
deficient report, but when the purported report is “no report,” then no extension is
permitted and the trial court has no option but to grant a motion to dismiss. Because
Nurse O’Malley’s first report never asserted VBMC did anything wrong, did not
implicate the conduct of any agent of VBMC, and gave no indication that appellees’
claim had merit, it was “no report” and the trial court was required to grant the motion
to dismiss rather than allow a thirty day extension.
ARGUMENT
A. When the purported report is “no report,” no extension is permitted and
the trial court must dismiss.
A document qualifies as an expert report only if it contains a statement of
opinion by an individual with expertise indicating that the claim asserted by the
plaintiff against the defendant has merit. Scoresby v. Santillan, 346 S.W.3d 546, 549
1
(Tex. 2011), App. 4. An extension to cure deficiencies in a report may only be
granted if the report contains the opinion of an individual with expertise that the claim
has merit, and if the defendant’s conduct is implicated. Id. at 557, App. 4. A
document that fails to address the statutorily mandated elements set forth in Chapter
74 constitutes no expert report at all. Ogletree v. Matthews, 262 S.W.3d 316, 323
(Tex. 2007) (Willett, J., concurring).
If no expert report is timely served, the denial of a motion to dismiss is
appealable, even if the court grants an extension. Scoresby, 346 S.W.3d at 555; citing
Badiga v. Lopez, 253 S.W.3d 204, 207-08 (Tex. 2008). The Medical Liability Act
does not authorize an extension if no report is timely served. Scoresby, 346 S.W.3d
at 555; Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 761
(Tex. App.–Houston [1st Dist.] 2012, no pet.). Granting an extension not authorized
by section 74.351 does not preclude an appeal. Scoresby, 346 S.W.3d at 555, App.
4.
If the document never asserts that anyone did anything wrong, it cannot receive
an extension. Laredo Tex. Hosp. Co., L.P. v. Gonzalez, 363 S.W.3d 255, 258 (Tex.
App.–San Antonio 2012, no pet.) quoting Scoresby, 346 S.W.3d at 558 (Willet, J.,
concurring). If the trial court responds to a motion to dismiss by erroneously granting
an extension, the defendant may appeal after the denial of a second motion to dismiss.
See Laredo Tex. Hosp., 363 S.W.3d at 258-59 (erroneous extension was not
2
immediately appealable, but appellate court ordered dismissal on appeal after denial
of second motion to dismiss because initial report was “no report”); cf. Avila v.
Jimenez, No. 13-13-00101-CV, 2013 WL 1500328 at *2-3 (Tex. App.–Corpus Christi
2013, pet. denied) (extension was granted, second motion dismiss was denied and
appeal then taken; court considered contention that pre-extension report was “no
report”).
A report that does not implicate the conduct of a defendant does not constitute
an expert report as to that defendant. Reddy v. Hebner, 435 S.W.3d 323, 328 (Tex.
App.–Austin 2014, pet. filed); Sinha v. Thurston, 373 S.W.3d 795, 800 (Tex.
App.–Houston [14th Dist.] 2012, no pet.). When the purported report does not
constitute an expert report as to a defendant, the trial court does not have any
discretion to deny the defendant’s motion to dismiss. Id.
The 21-day deadline for objecting to the sufficiency of an expert report is only
triggered if the report implicates the defendant. Reddy, 435 S.W.3d at 328. If what
the plaintiff provides is “no report,” then the defendant’s obligation to object to the
report is never triggered. Haskell, 363 S.W.3d at 761.
B. Nurse O’Malley’s first report stated no opinions and was “no report.”
Nurse O’Malley’s first report was the kind of document that is “no report.” The
report simply described events during Ms. Battles’s stay at VBMC, without comment
on what should or should not have been done during the course of her care. C.R. 42;
3
R.R. IV, X-1; App. 1.
The only portion of the report that addresses Ms. Battles’s care, the
“Summary,” begins by noting that a cholecystectomy was performed without incident,
and the patient’s vital signs remained stable throughout the procedure and in post-
operative care. C.R. 42; R.R. IV, X-1; App. 1.
It then notes that around 5:30 pm the patient started complaining of headaches,
nausea, and vomiting. C.R. 42; R.R. IV, X-1; App. 1. The report does not say that
any misconduct by VBMC was responsible for the headaches, nausea, and vomiting,
nor does it say what VBMC should have done, or should not have done, in response
to these symptoms. C.R. 42; R.R. IV, X-1; App. 1.
Next the report says at 6:12 pm the patient exhibited seizure activity, but,
again, the report does not say that any misconduct by VBMC was responsible for the
seizure activity, nor does it say what VBMC should have done, or should not have
done, in response to this seizure activity. C.R. 42; R.R. IV, X-1; App. 1.
Next the report says the patient was taken for CT scans, but the CT scans
showed no problems. C.R. 42; R.R. IV, X-1; App. 1. The report makes no comment
about whether it was appropriate to conduct the CT scans, or what, if anything, should
have been done in response to the results of the CT scans.
The report concludes by saying the patient developed a sub arachnoid and
subdural hemorrhage, which caused cerebral edema, hemorrhage, necrosis, herniation
4
at the brain stem and, eventually death. C.R. 42; R.R. IV, X-1; App. 1. Again the
report does not say any acts or omissions by VBMC were responsible for any of these
conditions, nor does it fault anything VBMC did or failed to do in response to these
conditions. C.R. 42; R.R. IV, X-1; App. 1.
At no point does the report offer any commentary or opinions about the
appropriateness of the care provided by VBMC. Indeed, the report does not even
identify any care that was (or should have been) provided by VBMC’s agents rather
than by others whom VBMC does not control and for whom VBMC does not have
vicarious liability, such as physicians. C.R. 42; R.R. IV, X-1; App. 1. Nowhere does
the report state, directly or indirectly, that appellees’ claims have merit.
C. Caselaw demonstrates the trial court was obligated to grant VBMC’s first
motion to dismiss.
The Medical Liability Act does not suggest that a document utterly devoid of
substantive content will qualify as an expert report. Scoresby v. Santillan, 346 S.W.3d
at 549, App. 4. Nurse O’Malley’s first report is the kind of document that is “no
report” because it does not contain a statement of opinion indicating that the claim
asserted by the plaintiff against the defendant has merit. Id. If the purported report
is this kind of “no report,” then the trial court has no discretion to grant an extension
of time to cure deficiencies in the report, but rather, the trial court is obligated to grant
the initial motion to dismiss. Id. at 557; Haskell, 363 S.W.3d at 761.
Several cases have held that reports like Nurse O’Malley’s first report are “no
5
report,” and the trial court cannot grant an extension but must grant a motion to
dismiss such a report.
In Velandia v. Contreras, 359 S.W.3d 674 Tex. App.–Houston [14th Dist.]
2011, no pet.) the purported report failed to include any opinion that the claim had
merit. Id. at 678. Nor did the report offer the applicable standard of care or an
explanation of how the defendant failed to meet any standard of care. Id. at 678-79.
The report also failed to identify a causal relationship between any failure by the
defendant and the plaintiff’s injury, harm, or damages. Id. at 679. The court
concluded the purported report was not an expert report, and the trial court had abused
its discretion in denying the motion to dismiss. Id. In our case, Nurse O’Malley’s
report has the same problems - it does not describe the standard of care applicable to
VBMC, does not identify any breach of any such standard, does not explain how any
such breach caused the injuries complained of, and does not include an opinion that
the claim has merit. C.R. 42; R.R. IV, X-1.
Also instructive is Haskell v. Seven Acres Jewish Senior Care Services, Inc.,
363 S.W.3d 754, (Tex. App.–Houston [1st Dist.] 2012, no pet.). In that case, the
plaintiff provided letters from three doctors which “describe actions taken by Seven
Acres that form the basis of Haskell’s suit.” 363 S.W.3d at 760. However, “none
claims that those actions were malpractice that caused Haskell an injury.” Id.
Furthermore, while each doctor described harm suffered by Haskell, “none of them
6
ties this alleged injury to any wrongful action by Seven Acres.” Id. The court added
“[m]ost significantly, there is nothing in Haskell’s report regarding any failure by
Seven Acres to meet the applicable standard of care.” Id.
Similarly in our case, Nurse O’Malley’s report describes some actions taken at
VBMC, but does not claim those actions were malpractice that caused Battles an
injury. C.R. 42; R.R. IV, X-1. Although O’Malley’s report notes that Battles died,
the report does not in any way tie this injury to any wrongful action by VBMC. C.R.
42; R.R. IV, X-1. Also, as in Haskell, O’Malley’s report says nothing about VBMC
failing to meet the applicable standard of care. C.R. 42; R.R. IV, X-1.
In Laredo Tex. Hospital Co., L.P. v. Gonzalez, 363 S.W.3d 255 (Tex. App.–San
Antonio 2012, no pet.) the plaintiff obtained a report from a doctor stating that
insertion of an intravenous catheter led to the patient’s injuries, but the report does not
identify who performed this procedure. Id. at 258. Furthermore, the report “never
attempts to state the applicable standard of care, how any defendant failed to meet that
standard, or even if a failure in the standard of care occurred.” Id. at 258. The court
held this report was “no report” and therefore extension of time to cure deficiencies
was improper and dismissal was mandatory. Id. at 258-59.
In San Antonio Extended Medical Care, Inc. v. Vasquez, 358 S.W.3d 685, 690
(Tex. App.–San Antonio 2011, pet. denied) the purported report identified defendant
Med Mart as a party that was to deliver medical supplies but otherwise did not identify
7
the standard of care, and was silent on how Med Mart failed to meet the standard of
care or how that shortcoming caused Vasquez’s death. Id. at 690. Also, the purported
report did not provide an opinion regarding whether Vasquez’s claims had merit. Id.
The court concluded the purported report did not meet the standard for an “expert
report” and dismissal was mandatory. Id. at 691.
Finally, in Fung v. Fischer, 365 S.W.3d 507, 530, 536 (Tex. App.–Austin
2012, no pet.) the court noted that the purported report does provide information about
Fung’s standard of care as a primary care physician, does not allege any breach of the
standard of care by Fung, nor any causal link between an alleged breach by Fung and
plaintiff’s injury. Id. at 536. The court concluded the purported report “simply fails
to assert that Fung did anything wrong” and was “no report” as to Fung. Id.
Therefore, the report was ineligible for the statutory extension and Fung was entitled
to dismissal. Id.
Nurse O’Malley’s report contains the same glaring flaws - no statement of the
standard of care as to VBMC, no statement of how any such standard was breached,
no statement of how any such breach caused Ms. Battles’ death, and, fundamentally,
no statement that VBMC did anything wrong or that appellees’ claims against VBMC
have any merit. C.R. 42; R.R. IV, X-1.
CONCLUSION AND PRAYER
Because Nurse O’Malley’s report was “no report,” the trial court had no
8
discretion to take any action but dismissal. The trial court was not authorized to grant
the thirty day extension that it did, and the timeliness of VBMC’s second motion to
dismiss is irrelevant, because the trial court was obligated to grant the first motion to
dismiss, and VBMC is entitled to take an appeal from the trial court’s abuse of
discretion with regard to the first motion to dismiss. Scoresby, 346 S.W.3d at 555;
Laredo Tex. Hosp., 363 S.W.3d at 258-259.
WHEREFORE, appellant Valley Baptist Medical Center prays that this Court
render judgment dismissing appellees’ claims with prejudice, and for all other relief
to which it is entitled.
Respectfully submitted,
ADAMS & GRAHAM, L.L.P.
P.O. Drawer 1429
Harlingen, Texas 78551-1429
Telephone: (956) 428-7495
Facsimile: (956) 428-2954
By: /s/ Scott T. Clark
Scott T. Clark
State Bar No. 00795896
sclark@adamsgraham.com
Roger W. Hughes
State Bar No. 10229500
rhughes@adamsgraham.com
Will Hughes
State Bar No. 10240100
willhughes@adamsgraham.com
COUNSEL FOR APPELLANT, VALLEY
BAPTIST MEDICAL CENTER
9
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Appellant’s Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D).
Exclusive of the exempted portions in Tex. R. App. P. 9(i)(1), Appellant’s Brief
contains 2,191 words. Appellant’s Brief has been prepared in proportionally spaced
typeface using:
Software Name and Version: WordPerfect X5 for Windows
in (Typeface Name and Font Size): New Times Roman 14 point .
ADAMS & GRAHAM, L.L.P.
P. O. Drawer 1429
Harlingen, TX 78551-1429
956/428-7495; FAX: 956/428-2954
sclark@adamsgraham.com
By: /s/ Scott T. Clark
SCOTT T. CLARK
State Bar No. 00795896
Attorney for Appellant
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to the following counsel of record on this the 2nd day of
March, 2015:
Attorneys of record for Appellees BATTLES, ET AL.:
Mr. Robert Garza Via e-service
Myles R. Garza & e-mail
LAW OFFICE OF ROBERT GARZA, P.C.
1200 E. Harrison Street
Brownsville, Texas 78520
/s/ Scott T. Clark
SCOTT T. CLARK
11
APPENDICES
1. Erin K. O’Malley, RN, BSN, MHSA, INC-CSp.’s report dated November 11,
2013.
2. Order Granting Defendant Valley Baptist Medical Center’s Objections to
Plaintiffs’ Expert Report of Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and
Granting Plaintiffs A CPRC§74.351(c) Extension to Furnish Compliant Report
signed January 8, 2014.
3. Order on VBMC’s Objections to Plaintiff’s Second Deficient Expert Report of
Erin K. O’Malley, RN, BSN, MHSA, INC-CSP and Motion to Dismiss signed
December 10, 2014.
4. Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011)
12
Cause No. 13-14-00756-CV
APPENDIX 1
TO APPELLANT’S BRIEF
NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P.003
EKO Consulting
Erin K.O'MaUeY,RN,BSN,MHSA, urc-cse.
2907 Ashwood St
Houston, TX 77025
November 11Ib, .2013
Law Offices of Robert Garza. PC
DEFENDANT'S
EX~Jr~
Retired State District Judge
2320 Central Blvd
::::....
Brownsville, Texas 78520
Re: Battles vs, Valley BaptistMedical Center
Dear Mr. Garza:
You have asked me for my opinion on the standards of care, breaches of said standards, and the basis
of same in the case of Batt;Ies vsValley BaptistMedica1 Ceolrr.
I am a registered nurse in the state of Texas since December 1991, and have over twenty-two years of
clinical experience, which include: emergency medicine. critical care, wound care, hyperbaric
medicine, outpatient clinical management. and hospitaladministration. 1 have over fifteen years
experience in wound care practice and clinical management. I obtained a Bachelors Degree in Nursing
from Texas Woman'a University in 1991, a Masters Degree in Health Services Administration from
Southwest University in 2001. and a Masters in Business Administration from Texas Women's
University in 2008. I have cared for numerous patients requiring intensive care treatment. My
experience includes the following;
1991-1993 Staff Nurse Emergency Room at Memorial Hermann-TlvfC. Houston TX.
1993-1996 Relief Charge Nurse Shock Trauma leU at Memorial Hermann-TM'C. Houston
TIC
NOV/ZI/Z013/THU 05:36 PM Robert Garza p.e. FAX No. 956-544-1108 P. 004
1996-1999 Clinical Nurse Coordinator for Department of Hyperbarics, Wound Care and
Lymphedema at Memorial Hermann Hospital, Houston, TX.
1999-2000 Clinical Manager of the University of Texas Outpatient Clinic at Memorial
Hermann Hospital, Houston, TX
2000-2001 Curative Healthcare Services - contract wound care management and
pharmaceutical company which manages wound care operations in acute care
hospitals.
2001·2003 ChiefNursing Officer III of 110 bed long term acute care facility with Kindred
Healthcare, Inc. in Houston, TX.
2003-2004 Associate Administrator at Cornerstone Hospitals of Austin, a long term acute
care hospital in Austin, TX.
2005-2006 Director of Education for Spring Branch Medical Center responsible for all
training, educational and orientation programs of acute medical and surgical
patients.
2006·2008 Clinical Operations Manager of Hyperbaric, Wound Care and Lymphedema unit
at Memorial Hermann Hospital in Houston. TX.
2008-2010 Director of Outpatient Services and Neurosciences at Memorial Hermann
Hospital in Houston, TX
2010-2012 Chief Clinical Officer of Kindred Hospital North. long term acute care hospital
including nursing, wound care, outpatient services.
2012- Present Clinical Practice Manger and Head Research Nurse, Baylor College of Medic me.
NOV/21/2013/THU 05:36 PM Robert Garza P.C. FAX No. 956-544-1108 P. 005
This report has been rendered in a professional.diligent manner, and is based on the facts obtained
from the materials provided to me, as well as my education, training and clinical expertise in general
nursing care. This report is intended to be a fair summary of my opinions.
I have reviewed the following records provided by your office regarding Mr. Bradford:
Autopsy Report
Lab Reports
• Medical Records from Valley Baptist Medical Center
Summary:
On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center for a routine cholecystectomy
and was admitted to a shortstay unit. The procedure was done without incidence. The patients vital
signs remainedstable throughout the procedure, and in post-operative care, That evening around 5:30 pm
the parlent started complaining of headaches, nausea, and vomiting. At 6:12 pm the patient exhibited
seizure activity. The patient lost consciences, and a code was called. The patient was intubated, given
Lovenox, and transferred to the intensive care unit. The patient was taken to cr scan, which showed
minimal edema, and no intracranial bleeding. The cr angiogram. of the chest showed no pulmonary
embolism. The CT scan of the abdomen showed no fluid collection, The patient developed a.sub
arachnoid and subdural hemorrhage. This caused cerebral edema, hemorrhage, necrosis, herniation at the
brain stem area which eventually caused death. The family was aware ofher condition and decided that
Ms. Battles should be taken off life support.
Cause No. 13-14-00756-CV
APPENDIX 2
TO APPELLANT’S BRIEF
... '
.;.....
CAUSE NO. 2013-DCL-04983-H
ROSALINDA BATILES. GERALD IN THE DISTRlcr COURT
BATTLES, AS SURVIVING SPOUSE
OF ROSALINDA BATILES, AMANDA
GISELLE BATTLES, AS SURVIVING
CHILD OF ROSAUNDA BATILES
AND JEREMY BLAKE BATTLES.AS
SURVIVING CHILD OF ROSALINDA
BAITLES
VS. 444 fh JUDICIAL DISTRICT
VALLEY BAPTIST MEDICAL CENTER OF CAMERON COUNTY. TEXAS
ORDER GRANTING DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
BROWNSVILLE'S OBJECTIONS TO PLAINTIFFS' EXPERT REPORT OF
ERIN K. O'MALLEY, RN, BSN, MHSA, INC-CSP AND GRANTING
PLAINTIFFS A CPRC§74.351(c) EXTENSION
TO FURNISH COMPLIANT REPORT
CAME ON FORCONSIDERATION, defendantValleyBaptistMedical Center-Brownsville's
Objections to Plaintiffs'ExpertReportof Erin K. O'Malley, RN,BSN,MHSA, INC-CSpand the Court
having heardtheevidencesubmitted inconnection with theObjections oftheopinionthatsaidObjections
should be sustainedbecausetheCourtfindsthatelementsof the report aredeficient andthat the plaintiffs
should have one 30-day extension to cure such deficiencies; and accordingly;
IT ISTHEREFOREORDEREDthat defendant Valley Baptist Medical Center-Brownsville's
Objections to Plaintiffs' Expert Reportof Erin K. O'Malley, RN, BSN,MHSA, INC-CSp are hereby
sustained; and
IT ISFURTHER ORDERED that plaintiffs aregranted a 3O-day extension tocure the deficiencies
in their expert report.
:, >t. ,O"\FILESW -928\orCfef,\Granting.Q01 Pag" "
51
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SIGNED FOR ENTRY thiS,+- day of---tr.r-_``_
Rober! Garza. LAW OFFICE OF ROBERT GARZA, P.C., 2320 Central Blvd., Brownsville, TX 78520: Fax No. 956·544·1108;
email:jroberl@rgarzalaw.com
Will Hughes, ADAMS & GRAHAM, LLP.. P.O. Drawer 1429, Harlingen, TX 78551.1429; Fax No. 956-428-2954;
e-mail:willhughes@adaltll;grllham.com
(12~ C:\FILE~W'928\orClerS\Granling'OOl Page 2
52
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Cause No. 13-14-00756-CV
APPENDIX 3
TO APPELLANT’S BRIEF
CAUSE NO. 2013-DCL-4983-H
ROSALINDA BATTLES, GERALD § IN THE DISTRICT COURT
BATTLES, AS SURVIVING SPOUSE §
OF ROSALINDA BATTLES, AMANDA §
GISELLE BATTLES, AS SURVIVING §
CHILD OF ROSALINDA BATILES §
AND JEREMY BLAKE BATTLES, AS §
SURVIVING CHILD OF ROSALINDA §
BATTLES §
Plaintiffs, §
§
V. § 444TH JUDICIAL DISTRICT
§
VALLEY BAPTIST MEDICAL §
CENTER §
Defendant. § OF CAMERON COUNTY, TEXAS
ORDER ON DEFENDANT VALLEY BAPTIST MEDICAL CENTER-
BROWNSVILLE'S OBJECTIONS TO PLAINTIFF'S SECOND DEFICIENT EXPERT
REPORT OF ERIN K. O'MALLEY, RN. BSN, MHSA. INC-CSP AND MOTION TO
DISMISS
On , a hearing was held on the Defendant Valley Baptist Medical
Center - Brownsville's Objections to Plaintiff's Second Deficient Expert Report of Erin K.
O'Malley. RN, BSN, MHSA, lNC-CSP and Motion to Dismiss in the above-styled and
nwnbered cause. After considering the arguments of the parties, the court is of the opinion that
said.motion should be DENIED.
IT IS THEREFORE ORDERED that Defendant Valley Baptist Medical Center -
Brownsville's Objections to Plaintiffs Second Deficient Expert Report of Erin K. O'Malley,
RN, BSN, MHSA, INC-CSP and Motion to Dismiss is hereby DENIED.
SIGNED on thisULday of J t.Cet.~2014.
FILEDJl-0'CLOCKLM
AURORA DE LAGARZA, CLERK
~-) -"j ----- {
JUDGE PRESIDING
IL\:::0=
75
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Cause No. 13-14-00756-CV
APPENDIX 4
TO APPELLANT’S BRIEF
546 Tex. 3-16 SOUTH WESTERN REPORTER, 3d SERIES
We reverse the court of appeals' judgment with expertise indicating that claim as-
and render judgment for BIC. serted by plaintiff has merit;
(3) 30 day extension to cure deficiencies in
Justice GREEN did not participate in expert report may be granted if report
the decision. is served by statutory deadline and
contains opinion of individual with ex-
pertise that claim has merit;
(4) doctor's expert report was deficient be-
cause it did not state standard of care;
and
Tyler SCORESBY, M.D., Petitioner,
(5) doctor's expert report, although defi-
v.
cient, was not the legal equivalent of
Catarino SANTILLAN, Individually and "no report" at all under Act.
As Next Friend of Samuel Santillan, Affirmed,
A Minor, Respondent.
Willett, J., filed concurring opinion.
No. 09-0497.
Johnson, J., dissented and filed opinion in
Supreme Court of Texas. which Wainwright, J., joined.
Argued Nov. 9, 2010.
Decided July 1, 2011. 1. Health e=>804
Rehearing Denied Sept. 30, 2011. Medical Liability Act entitles a defen-
Background: Patient brought action dant to dismissal of a health care liability
against physicians under Medical Liability claim if, within 120 days of the date suit
Act. The 96th District Court, Tarrant was filed, he is not served with an expert
County, Jeff Walker, J., denied physicians' report showing that the claim against him
motions to dismiss for failure to file com- has merit. V.T.CA, Civil Practice &
pliant health care expert report, and Remedies Code §§ 74.001-74.507.
granted patient 30-day extension to cure
2. Appeal and Error e=>70(3)
deficiencies in report. Both physicians ap-
pealed. On consolidated appeal, the Fort Trial court's refusal to dismiss health
Worth Court of Appeals, Bill Meier, J., 287 care liability claim when defendant is not
S.W.3d 319, dismissed the appeals. Physi- served with an expert report within 120
cians appealed. days of the date suit was filed is immedi-
ately appealable. V.T.C.A., Civil Practice
Holdings: The Supreme Court, Hecht, J.,
& Remedies Code §§ 74.001-74.507.
held that:
(1) trial court should err on side of grant- 3. Appeal and Error e=>70(3)
ing plaintiff additional 30 days in which Health e=>804
to cure deficiency in expert report, and Medical Liability Act sets specific re-
defendant cannot seek review of this quirements for an adequate expert report
ruling or appeal court's concomitant and mandates that objective good faith
refusal to dismiss claim before 30 day effort be made to comply with them, but it
period has expired; also authorizes the trial court 'to give a
(2) document qualifies as "expert report" plaintiff who meets the 12O-day deadline
under Medical Liability Act if it con- for serving expert report an additional
tains statement of opinion by individual thirty days in which to cure a "deficiency"
SCORESBY v, SAl"ITILLAN Tex. 547
Cite as 346 S.W.3d 546 (Tex. 2011)
in the elements of the report, and trial care more available and less expensive by
court should err on the side of granting reducing the cost of health care liability
the additional time and must grant it if the claims, and eliciting an expert's opinions
deficiencies are curable, and defendant early in the litigation is an obvious place to
cannot seek review of this ruling or appeal start in attempting to reduce frivolous law-
the court's concomitant refusal to dismiss suits and thereby reduce the costs of
the claim before the thirty-day period has claims. V.T.CA, Civil Practice & Reme-
expired. V.T.C.A., Civil Practice & Reme- dies Code §§ 74.001-74.507; Vernon's
dies Code §§ 51.014(a)(9), 74.351(a-c, 1), Ann.Texas Civ.St. art. 4590i (Repealed).
(1')(6).
4. Health lS='804 8. Health lS='804
While Medical Liability Act contem- Purpose of Medical Liability Act's ex-
plates that a document can be considered pert report requirement is to deter frivo-
an expert report despite its deficiencies, lous claims, not to dispose of claims re-
the Act does not suggest that a document gardless of their merits. V.T.CA, Civil
utterly devoid of substantive content will Practice & Remedies Code § 74.351(1')(6).
qualify as an expert report. V.T.CA, Civ-
il Practice & Remedies Code 9. Health lS='804
§ 74.351(1')(6).
Failing to timely file an expert report,
5. Health lS='804 or filing a report that does not evidence a
Document qualifies as an "expert re- good-faith effort to comply with the defini-
port" under Medical Liability Act if it con- tion of an expert report under Medical
tains a statement of opinion by an individu- Liability Act, means that the claim is ei-
al with expertise indicating that the claim
ther frivolous, or at best has been brought
asserted by the plaintiff against the defen-
prematurely. V.T.CA, Civil Practice &
dant has merit. V.T.CA, Civil Practice &
Remedies Code § 74.35l(c), (1')(6).
Remedies Code § 74.351(1')(6).
See publication Words and Phrases
for other judicial constructions and
10. Pretrial Procedure lS='46
definitions. There are constitutional limitations
6. Health lS='804 upon the power of courts to dismiss an
Under Medical Liability Act, expert's action for discovery violations without af-
lack of relevant qualifications and his opin- fording a party the opportunity for a hear-
ion's inadequacies are deficiencies the ing on the merits of his cause, and those
plaintiff should be given an opportunity to limitations constrain the legislature no less
cure if it is possible to do so, and this in requiring dismissaL
lenient standard avoids the expense and
delay of multiple interlocutory appeals and 11. Health lS='804
assures plaintiff a fair opportunity to dem- No particular words or formality are
onstrate that his claim is not frivolous. required in expert report under Medical
V.T.e.A., Civil Practice & Remedies Code Liability Act, but bare conclusions will not
§ 74.351(1')(6).
suffice, and the report must address all the
7. Health lS='603 elements set forth in Act, and omissions
Goal of the Medical Liability and In- may not be supplied by inference.
surance Improvement Act (MLIIA) and V.T.CA, Civil Practice & Remedies Code
the Medical Liability Act is to make health § 74.351(1')(6).
548 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES
12. Health e=>804 conduct. V.T.C.A., Civil Practice & Reme-
Medical Liability Act allows a claim- dies Code § 74.35l(r)(6).
ant a thirty-day period to cure deficiencies 18. Health e=>804
before the trial court finally determines
Doctor's expert report, although defi-
that the report is inadequate and the claim
cient because it did not state the standard
must be dismissed. V.T.CA, Civil Prac-
of care, was not the legal equivalent of "no
tice & Remedies Code § 74.35l(c), (r)(6).
report" at all under Medical Liability Act,
13. Health e=>603 given that there was no question that, in
Medical Liability Act's principal pur- doctor's expert opinion, patient's health
pose is to reduce the expense of health care liability claim against defendant phy-
care liability claims. V.T.CA, Civil Prac- sicians had merit, and since the report was
tice & Remedies Code §§ 74.001-74.507. served within the statutory 120 day dead-
14. Health e=>804 line, trial court had authority under Act to
Goal of the Medical Liability Act's grant patient an additional 30 days to cure
expert report requirement is to deter friv- deficiencies in the expert report.
olous claims, and inadequate expert report V.T.C.A., Civil Practice & Remedies Code
does not indicate a frivolous claim if the § 74.351(a-c).
report's deficiencies are readily curable. 19. Appeal and Error e=>70(3)
V.T.C.A., Civil Practice & Remedies Code Health e=>804
§ 74.35l(c), (r)(6). Although doctor's expert report was
15. Health e=>804 deficient, because it did not state the stan-
Medical Liability Act's thirty-day ex- dard of care, it was possible to cure defi-
tension to cure deficiencies in an expert ciencies in the expert report, and thus,
report may be granted if the report is trial court granted patient an additional 30
served by the statutory deadline, if it con- days to cure deficiencies in the expert
tains the opinion of an individual with ex- report, and trial court's decision granting
pertise that the claim has merit, and if the patient an additional 30 days to cure defi-
defendant's conduct is implicated. ciencies, and denying the defendant physi-
V.T.C.A., Civil Practice & Remedies Code cians' motions to dismiss patient's health
§ 74.35l(c), (r)(6). care liability claim, were not appealable
before the 30 day period had expired.
16. Appeal and Error e=>70(3)
V.T.C.A., Civil Practice & Remedies Code
Under Medical Liability Act, all defi-
§ 74.351(a-c), (r)(6).
ciencies in expert report, whether in the
expert's opinions or qualifications, are sub- 20. Health e=>804
ject to being cured before an appeal may Medical Liability Act requires that ex-
be taken from the trial court's refusal to pert's knowledge, training or experience,
dismiss the case. V.T.C.A., Civil Practice and practice be relevant to patient's claim.
& Remedies Code § 74.35l(c), (r)(6). V.T.C.A., Civil Practice & Remedies Code
§ 74.351(r)(6).
17. Health e=>804
Doctor's expert report was deficient,
and thus did not satisfy standards for ex-
pert report under Medical Liability Act,
because it did not state the standard of Eric Rene Reyes, Jason C.N. Smith, Art
care, but, rather, only implied that it was Brender, Fort Worth, for Catarino Santil-
inconsistent with the defendant physicians' lan.
SCORESBY v, SANTILLAN Tex. 549
Cite all 346 S.W.3d 546 (Tex. 2011)
Michael Alan Yanof, Philipa Remington, ruling 9 or appeal the court's concomitant
Dallas, for Tyler Scoresby, M.D. refusal to dismiss the claim before the
Randy J. Hall, David Leon Pratt II, thirty-day period has expired."
Fort Worth, for Yadranko Ducic, M.D. [4-6) While the Act thus contemplates
that a document can be considered an ex-
Justice HECHT delivered the opinion of pert report despite its deficiencies, the Act
the Court, in which Chief Justice does not suggest that a document utterly
JEFFERSON, Justice MEDINA, Justice devoid of substantive content will qualify
GREEN, Justice WILLETT, Justice as an expert report. Based on the Act's
GUZMAN, and Justice LEHRMANN text and stated purposes, we hold that a
joined. document qualifies as an expert report if it
[1-3] The Medical Liability Act 1 enti- contains a statement of opinion by an indi-
tles a defendant to dismissal of a health vidual with expertise indicating that the
care liability claim if, within 120 days of claim asserted by the plaintiff against the
the date suit was filed, he is not served defendant has merit. An individual's lack
with an expert report showing that the of relevant qualifications and an opinion's
claim against him has merit," The trial inadequacies are deficiencies the plaintiff
court's refusal to dismiss is immediately should be given an opportunity to cure if it
appealable." The Act sets specific require- is possible to do so. This lenient standard
ments for an adequate report 4 and man- avoids the expense and delay of multiple
dates that "an objective good faith effort interlocutory appeals and assures a claim-
[be made) to comply" with them,' but it ant a fair opportunity to demonstrate that
also authorizes the trial court to give a his claim is not frivolous. The expert re-
plaintiff who meets the 12O-day deadline port before us meets this test, and there-
an additional thirty days in which to cure a fore the trial court's order allowing thirty
"deficiency" in the elements of the report," days to cure deficiencies and denying the
The trial court should err on the side of defendants' motions to dismiss were not
granting the additional time 7 and must appealable. Accordingly, we affirm the
grant it if the deficiencies are curable." court of appeals' judgment dismissing the
The defendant cannot seek review of this appeal for want of jurisdiction."
1. TEX. CIV PRAC. & REM. CODE §§ 74.001-.507. their claims.''' (quoting id. at 416 (Guzman.
All references to the Act are to these provi- J.. joined by Lehrrnann.r J.. concurring in the
sions. judgrnentll).
2. /d. § 74.35I(bl. 8. Id. at 411 (plurality op. of Medina, J., joined
by Jefferson. C.J .. and Hecht, J.); id. at 416
3. Id. § 51.014(a)(9); Badiga v. Lopez, 274 (Guzman. J., joined by Lehrmann. J.. concur-
S. W.3d 681, 685 (Tex.2009). ring in the judgment).
4. TEX. CIV. PRAC. & REM CODE § 74.35I(r)(6).
9. TEX. CIY PRAC. & REM. CODE § 51.014(a)(9) (no
interlocutory appeal); /11 re Watkil1s. 279
5. /d. § 74.351(l).
S.W.3d 633, 634 (Tex.2009l (orig.proceeding)
6. /d. § 74.35I(c). (no review by mandamus).
7. Samlowski v. Wootel1. 332 S.W.3d 404. 411 10. Ogletree v. Matthews. 262 S.W.3d 316, 321
(Tex.201\) (plurality op. of Medina, J., joined (Tex.2007).
by Jefferson. C.J.. and Hecht. J.) (" '[Tjrial
courts should err on the side of granting II. 287 S.W.3d 319 346 S.W.3d 546 (Tex. 2011)
He was seen on 8/3/07. He still has After the 12o-day deadline, Santillan
weakness of his right arm and leg. served the Physicians with Marable's cur-
Walking seems to still be a problem .... riculum vitae and his amended report, in
He is still having headaches in the occi- which he added that "the applicable stan-
pital region. dard of care would have been to perform
Marable's letter concluded: the procedure of a calvaria bone transplant
As a Board-Certified neurologist, my without nicking or lacerating the parietal
cortex [and] to get the appropriate sur-
opinion is that Dr. Ducic violated the
geon, such as a neurosurgeon, instead of
standards of care, as well as Dr. Scorsby
an ENT physician to do a calvaria bone
[sic], and as a result his damages are
grafting procedure", and that "Dr. Ducic
that of a light-sided hemiparesis with
and Dr. Scorsby [sic] ... failed to perform
possibility of seizure foci in the future.
a careful and well-planned surgery, caus-
Although he has not had any seizures,
ing a laceration of the cortical hemisphere,
he certainly does meet the criteria for a
causing substantial bleeding". At the
seizure disorder. Had it not been for
hearing on the Physicians' objections and
Dr. Ducic and Dr. Seorsby's [sic] negli-
motions, the trial court refused to consider
gent activity in causing cortical lacera-
Marable's post-deadline amended report.
tion of this patient's left parietal lobe, he
The Physicians complained that Marable's
would not have needed further hospital-
original letter did not show that he had
ization at John Peter Smith or the leU sufficient qualifications and experience to
therapy, or going to HealthSouth Rehab, render an opinion regarding the surgery,
and is now left with a right hemiparesis and did not define the standard of care,
at a young age. state how it was breached, or explain how
The Physicians each timely objected a breach resulted in Samuel's injuries.
that the letter was inadequate as an expert The Physicians acknowledged that Samuel
report, asserting that: (i) a neurologist is suffered a lacerated artery but argued that
not qualified to testify regarding the stan- such things are inevitable in surgery, no
dard of care for an ENT surgeon in per- matter how carefully it is performed, and
forming the procedures the Physicians do not necessarily indicate a breach of the
performed on Samuel; (ii) Marable's opin- standard of care. The trial court denied
ions regarding the Physicians' standard of the motions to dismiss and granted Santil-
care, breach, and causal relationship to lan a thirty-day extension to cure deficien-
Samuel's injuries were conclusory and di- cies in the report.
rected to Scoresby and Ducic collectively The Physicians appealed, persisting in
rather than individually; and (iii) Mara- their contention that Marable's letter was
ble's curriculum vitae was not included, as too inadequate to qualify as an expert re-
the Act requires.'! The Physicians argued port; therefore, Santillan had not met the
Marable's letter was so woefully deficient, 12o-day deadline; and consequently, the
it did not even qualify as an expert report Act did not permit an additional thirty
under the Act to meet the 12o-day dead- days to cure the deficiencies but instead
line. They moved the court to dismiss the required that the case be dismissed.P The
case with prejudice and award them their court of appeals construed our analysis in
reasonable attorney fees and costs. Ogletree v. Mouheioe" to mean that defi-
12. TEX. CIV PRAC & REM. CODE § 74.351(a). 14. 262 S.W.3d 316.
13. 287 s.w.sa at 320.
552 Tex. ;346 SOUTH WESTERN REPORTER, 3d SERIES
ciencies in a document tendered as an Legislature's purpose in the MLIIA, ex-
expert report will not preclude it from pressly stated, was to
qualifying as SUCh. 15 The court concluded reduce excessive frequency and severity
that an interlocutory appeal in these cir- of health care liability claimsl.] de-
cumstances was not permitted." crease the cost of those claims[,] do
We granted the Physicians' petitions for so in a manner that will not unduly
review." restrict a claimant's rights any more
than necessary to deal with the crisis],
While this appeal has been pending, the
and thereby] ... make affordable medi-
Physicians have lodged essentially the
cal and health care more accessible and
same objections to Santillan's amended re-
available to the citizens of Texas .... 22
port as they made to the original report.
They have also moved again for dismissal, In 2003, the Legislature replaced the MLI-
attorney fees, and costs. The trial court IA with the Medical Liability Act, repeat-
has not ruled on those objections and mo- ing its 1977 findings and statements of
purpose.f
tions.
[7] Fundamentally, the goal of the
II MLIIA and the Medical Liability Act has
The Legislature enacted the Medical Li- been to make health care in Texas more
ability and Insurance Improvement Act available and less expensive by reducing
("MLIIA") in 1977 18 in response to "a the cost of health care liability claims. To
medical malpractice insurance crisis in the that end, both statutes have sought to
State of Texas" that was having "a materi- deter frivolous lawsuits by requiring a
al adverse effect on the delivery of medical claimant early in litigation to produce the
and health care in Texas, including signifi- opinion of a suitable expert that his claim
cant reductions of availability of medical has merit. "[E]liciting an expert's opin-
and health care services to the people of ions early in the litigation [is] an obvious
Texas and a likelihood of further reduc- place to start in attempting to reduce friv-
tions in the future"." The Legislature olous lawsuits" 24 and thereby reduce the
found that the crisis had been created by costs of claims.
an "inordinate] J" increase in the volume The Legislature first added an expert
and expense of health care liability report requirement to the MLIIA in 1993,
claims." Concerned that "the direct cost then strengthened it over the next ten
of medical care to the patient and public of years, finally allowing interlocutory ap-
Texas hard] materially increased"," the peals to ensure uniform enforcement. We
15. 287 S.W.3d at 324. 19. 1977 Act, § 1.02(a)(5H6).
16. Id.at325. 20. 1977 Act, § 1.02(a)(lH5).
17. 53 Tex.Sup.Ct.J. 1061 (Aug. 27. 2010). We 21. 1977 Act, § 1.02(a)(8).
have jurisdiction to determine whether the
court of appeals had jurisdiction. Tex. Dep't 22. 1977 Act, § 1.02(b)(lH3), (5).
of Criminal Justice v. Simons, 140 S.W.3d
338, 343 (Tex.2004). 23. Act of June 2, 2003, 78th Leg., RS., ch.
204, §§ 10.01, 10.09, 10.11. 2003 tex. Gen.
18. Act of May 30, 1977, 65th Leg., R.S., ch. Laws 847, 864-882, 884-885.
817,1977 Tex. Gen. Laws 2039, formerly
TEXREVCIV STAT. ANN. art. 4590i [hereinafter 24. Am. Transitional Care Ctrs. oiTex., Inc. v.
1977 Act]. Palacios, 46 S.W.3d 873,877 (Tex.2001).
SCORESBY v. SANTILLAN Tex. 553
Cite as 346 S.W.3d 546 (Tex. 2011)
look first at the requirement, then the care provider failed to meet the standards,
appeal, and finally at their proper opera- and the causal relationship between that
tion together. failure and the injury, harm, or damages
claimed." 31 The failure to make "a good
A faith effort" to comply :l2 could result in
The 1993 amendment to the MLIIA re- dismissal with prejudice and liability for
quired a plaintiff, within ninety days of attorney fees as well as costs." But if the
filing suit, either to file an affidavit that he failure-s-even missing the deadline com-
had obtained a suitable expert's opinion pletely 34-was "not intentional or the re-
that his claim had merit or to post a $2,000 sult of conscious indifference but was the
bond or cash deposit," The trial court result of an accident or mistake," the trial
could extend the deadline for up to ninety court was required to grant "a grace peri-
days "for good cause shown"." A plaintiff od of 30 days to permit the claimant to
who failed to comply risked dismissal with- comply"."
out prejudice and liability for costs, again,
except for "good cause ... shown".27 The Medical Liability Act, adopted in
2003 and now in effect, eliminates the
In 1995, the Legislature required that bond/deposit alternative, shortens the
the expert report itself be filed and raised deadline for the expert report and curricu-
the amount of the bond or deposit posted lum vitae to 120 days (unless extended by
in lieu of a report to $5,000. 28 The amend-
agreement), and requires service rather
ment retained the ninety-day initial dead-
than filing." The Act retains the defini-
line but added that even if a bond or
tion of an expert report 37 but is more
deposit were posted, an expert report and
specific about an expert's qualifications."
curriculum vitae must be filed within 180
days of initiating suit." The amendment The Act now distinguishes between
specified the qualifications the expert was missing a deadline altogether and serving
required to have 30 and defmed the report an inadequate report. Section 74.35l(b)
as one "provid[ing] a fair summary of the provides that
expert's opinions ... regarding applicable [i]f, as to a defendant ... , an expert
standards of care, the manner in which the report has not been served [by the dead-
care rendered by the physician or health line], the court, on the motion of the
25. Act of May 25, 1993. 73rd Leg .. RS., ch. 32. 1995 AC1, former art. 4590i, § 13.0W).
625, § 3. 1993 Tex. Gen. Laws 2347. 2347,
formerly TEX.REV.CIV. STAT ANN. art. 4590i, 33. 1995 Act, former art. 4590i, § 13.0I(el.
§ 13.0HaHb) [hereinafter 1993 Act].
34. Stockton v. Offenbach, 336 S.W.3d 610,
26. 1993 Act, former art. 4590i, § 13.01(d).
616 (Tex.201 J) ("Under article 4590i, a plain-
27. 1993 Act, former art. 4590i, § 13.0l(c). tiff could obtain an extension, even when no
report was provided by the deadline, if the
28. Act of May 5, 1995, 74th Leg., RS., ch. plaintiff could show an 'accident or mistake'
140, § J. 1995 Tex. Gen. Laws 985, 986, in failing to furnish a timely report. ").
formerly TEX.REV.CIV STAT ANN. art. 4590i,
§ 13.0l(a) [hereinafter 1995 Act]. 35. 1995 Act, former art. 4590i, § 13.0I(g).
29. 1995 Act, former art. 4590i, § 13.01(d). 36. TEX. CIV PRAC & REM. CODE § 74.35Ha).
30. 1995 Act, former art. 4590i, §§ 13.0l(r)(5l
& 14.01. 37. Id. § 74.351(r)(6).
31. 1995 Act, former art. 4590i, § 13.01(r)(6l. 38. Id. §§ 74.35I(r)(5), 74.401-.403.
554 Tex. :H6 SOUTH WESTERN REPORTER, 3d SERIES
[defendant], shall, subject to Subsection purpose of the expert report requirement
(c), enter an order that: is to deter frivolous claims," not to dispose
(1) awards [the defendant] reasonable of claims regardless of their merits. "The
attorney's fees and costs of court ... ; Legislature has determined that failing to
and timely file' an expert report, or filing a
(2) dismisses the claim with respect to report that does not evidence a good-faith
the [defendant] with prejudice to the effort to comply with the definition of an
refiling of the claim." expert report, means that the claim is
Under section 74.351([), the same conse- either frivolous, or at best has been
quences attend serving an inadequate re- brought prematurely." U But the Legisla-
port that "does not represent an objective ture has likewise recognized that when an
good faith effort" to comply with the Act's expert report can be cured in thirty days,
requirements." But before those conse- the claim is not frivolous. It must be
quences are imposed, the Act provides an remembered that "'[t]here are constitu-
opportunity for deficiencies to be cured. tional limitations upon the power of courts
Section 74.351(a) requires that any objec- . .. to dismiss an action without affording
tion to the sufficiency of a report be lodged a party the opportunity for a hearing on
within twenty-one days of service," and the merits of his cause' ",45 and those limi-
section 74.351(c) provides: tations constrain the Legislature no less in
If an expert report has not been served requiring dismissal.
[by the deadline] because elements of For these reasons, we have held that
the report are found deficient, the court trial courts should be lenient in granting
may grant one 3O-day extension to the thirty-day extensions and must do so if
claimant in order to cure the deficien- deficiencies in an expert report can be
cy." ~2 cured within the thirty-day period. This
[8-10] The Act's thirty-day extension "minimal delay before a report's sufficien-
to cure deficiencies replaces the 1995 law's cy may again be challenged and the case
thirty-day "grace period" for "accident or dismissed, if warranted" 46 does not impair
mistake", shifting the focus from the claim- the purpose of the Act.
ant's conduct to the report's contents. But
the importance of an appropriate delay in B
finally dismissing a claim for want of an Under the MLIIA, there was no inter-
adequate report is undiminished. The locutory appeal from the denial of a motion
39. Id. § 74.35 l tb). 209-210, 78 S. Ct. 1087, 2 L. Ed. 2d 1255
(1958). citing Hammond Packing Co. v. Arkan-
40. Id. § 74.351(/).
sas. 212 U.S. 322. 350-351. 29 S. Ct. 370. 53
41. Id.§ 74.351(a). L.Ed. 530 (1909), and Hovey v. Elliott, 167
U.S. 409, 17 S. Ct. 841. 42 L. Ed. 215 (1897);
42. TEX. CIV PRAC. &. REM. CODE § 74.351 (c). accord Ins. Corp. of Ir., Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694. 705-706,
43. Am. Transitional Care Ctrs. of Tex., Inc. v.
102 S. Ct. 2099. 72 L. Ed. 2d 492 (1982»; see
Palacios, 46 S.W.3d 873, 878 (Tex.2001)
also Walker v. Gutierrez, 111 S.W.3d 56. 66
C'And one purpose of the expert-report re-
quirement is to deter frivolous claims. "). (Tex.2003).
44. Id. 46. Ogletree v. Matthews, 262 S.W.3d 316.321
(Tex.2007).
45. TransAmerican Natural Gas Corp. v. Pow-
ell. 811 S.W.2d 913. 918 (Tex.1991) (quoting
Societe lnternationale v. Rogers, 357 U.S. 197,
SCORESBY v, SANTILLA.N" Tex. 555
Cite as 346 S.W.3d ~46 (Tex. 2011)
to dismiss a health care liability claim for If no expert report is timely served, we
failure to comply with the expert report held in Badiga v. Lopez that the denial of
requirement, and we did not make clear a motion to dismiss is appealable, even if
until 2008 that review by mandamus was the court grants an extension.P The Med-
available." In adopting the Medical Lia- ical Liability Act, unlike the MLIIA, does
bility Act in 2003, the Legislature permit- not authorize an extension if no report is
ted an interlocutory appeal from an order timely served. Granting an extension not
denying "all or part of the relief sought by authorized by section 74.351 does not pre-
a motion under Section 74.35l(b), except clude appeaL But because an appeal is
that an appeal may not be taken from an available, we held in In re Watkins that
order granting an extension under Section review by mandamus is not available."
74.351".48 In a series of cases, we have
The present case requires us to deter-
explained the limits of this review mecha-
mine whether a document served on a
nism.
defendant can be so lacking in substance
If an expert report is timely served, that it does not qualify as an expert report,
even without a curriculum vitae, we held in and therefore an immediate appeal from
Ogletree v. Matthews that the trial court's the denial of a motion to dismiss is avail-
denial of a motion to dismiss, asserting the
able under Badiga.
report's inadequacy, cannot be appealed if
the court also grants a thirty-day exten- C
sion to cure deficiencies." "This prohibi-
[11] The Act defines an expert report
tion," we said, "is both logical and prac-
to be
tical." 50 Otherwise,
a written report by an expert that pro-
the court of appeals would address the
report's sufficiency while its deficiencies vides a fair summary of the expert's
were presumably being cured at the trial opinions as of the date of the report
court level, an illogical and wasteful re- regarding applicable standards of care,
sult. Moreover, because the Legislature the manner in which the care rendered
authorized a single, thirty day extension by the physician or health care provider
for deficient reports, health care provid- failed to meet the standards, and the
ers face only a minimal delay before a causal relationship between that failure
report's sufficiency may again be chal- and the injury, harm, or damages
lenged and the case dismissed, if war- claimed."
ranted." The qualifications and experience neces-
If after an extension has been granted, the sary for an expert are prescribed in great
defendant again moves to dismiss, we held detail.56 The adequacy of a report is de-
in Lewis v. Funderincrk that a denial of termined by whether it "represent[s] an
the motion is appealable." objective good faith effort to comply" with
47. In re McAllen Med. Ctr., Inc., 275 S.W.3d 52. 253 S.W.3d 204, 207-208 (Tex.2008).
458, 461-462 (Tex.2008).
53. 274 S.W.3d 681,685 (Tex.2009).
48. TEX. CIY. PRAC. & REM.CODE § 51.014(a)(9);
Act of June 2, 2003, 78th Leg., R.S., ch. 204,
§ 1.03, 2003 Tex. Gen. Laws 847,849. 54. 279 S.W.3d 633, 634 (Tex.2009).
49. 262 S.W-3d at 321. 55. TEX CIY PRAC & REM.CODE § 74.35I(r)(6).
50. u. 56. Id. §§ 74.35l(r)(5). 74.401-.403.
51. u.
556 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES
the statutory definition." As we have ex- comings, it "implicated Dr. Ogletree's con-
plained: duct", so that the trial court was author-
In setting out the expert's opimons on ized to grant a thirty-day extension, and
each of those elements, the report must an appeal was prohibited'"
provide enough information to fulfill two [13,14] Ogletree's holding, though
purposes if it is to constitute a good- sound, can be extended only so far. To
faith effort. First, the report must in- stretch the meaning of deficient to include
form the defendant of the specific con- a sheet of paper with the two words, "ex-
duct the plaintiff has called into ques- pert report", written on it would mock the
tion. Second, and equally important, Act's requirements. The expert report in
the report must provide a basis for the Lewis was substantively no more than
trial court to conclude that the claims that-one physician's thank-you letter to
have merit." another for referring the patient," In de-
No particular words 59 or formality 60 are termining where to draw the line, we are
required, but bare conclusions will not suf- guided by two considerations. One is that
fice." The report must address all the the Act's principal purpose is to reduce the
elements," and omissions may not be sup- expense of health care liability claims.
plied by inference." The Legislature could reasonably have de-
[12] But as we have seen, the Act al- termined that that purpose is served by an
lows a claimant a thirty-day period to cure interlocutory appeal from the denial of a
deficiencies before the trial court finally motion to dismiss for want of an adequate
determines that the report is inadequate expert report, but as we observed in Ogle-
and the claim must be dismissed. In Ogle- tree, permitting two such appeals-one be-
tree, we rejected the argument that a defi- fore the thirty-day cure period and one
cient report is no report." There, the after-is simply wasteful. The other con-
claimant provided the opinion of a radiolo- sideration is the goal of the Act's expert
gist, without a curriculum vitae, on a urolo- report requirement: to deter frivolous
gist's standard of care." Dr. Ogletree ar- claims. An inadequate expert report does
gued that the report was really no report not indicate a frivolous claim if the report's
at all, but we held that despite its short- deficiencies are readily curable.
57. Id. § 74.351(1). 62. Id. ("Nor can a report meet these purposes
and thus constitute a good-faith effort if it
58. Am. Transitional Care Ctrs. of Tex., Inc. v. omits any of the statutory requirements.").
Palacios, 46 S,W.3d 873.879 (Tex.200t).
59. Bowie Mem'l Hosp. v, Wright, 79 S.W.3d 63. See Bowie Mem'l Hosp., 79 S.W.3d at 53
48, 53 (Tex.2002) (per curiam) ("[A) report's ("[T]he report must include the required in-
adequacy does not depend on whether the formation within its four corners.").
expert uses any particular 'magical words.' "),
64. Ogletree v. Matthews, 262 S.W.3d 316,
60. Palacios, 46 S.W.3d at 879 ("The report 320-321 (Tex.2007).
can be informal in that the information in the
report does not have to meet the same re- 65. Id.at318.
quirements as the evidence offered in a sum-
mary-judgment proceeding or at trial.").
66. [d. at 321.
61. Id. ("A report that merely states the ex-
pert's conclusions about the standard of care, 67. Lewis v. Funderburk, 191 S.W.3d 756,762-
breach, and causation does not fulfill these 763 (Tex.App.-Waco 2006) (Gray, Ci.L, dis-
two purposes."). senting). rev'd, 253 S.W.3d 204 (Tex.2008).
SCORESBY v, SANTILLAJ."l Tex. 557
Clte as 346 S.W.3d 546 (Tex. 2011)
[15.16] We conclude that a thirty-day press no view on the adequacy of Dr.
extension to cure deficiencies in an expert Marable's qualifications; the trial court did
report may be granted if the report is not specifically address the matter, and it
served by the statutory deadline, if it con- is premature for us to consider it. But the
tains the opinion of an individual with ex- dissent's arguments, we believe, show the
pertise that the claim has merit, and if the wisdom of our approach in determining
defendant's conduct is implicated. We what qualifies as an expert report.
recognize that this is a minimal standard,
The dissent acknowledges that, as in
but 'we think it is necessary if multiple
Ogletree, a radiologist is qualified to opine
interlocutory appeals are to be avoided,
on "whether the urologist should have in-
and appropriate to give a claimant the
volved radiology-related devices and tech-
opportunity provided by the Act's thirty-
niques (the specialty in which the expert
day extension to show that a claim has
was qualified) in treating the patient and
merit. All deficiencies, whether in the ex-
whether the failure to do so resulted in
pert's opinions or qualifications, are sub-
injury." 69 In that instance, the dissent
ject to being cured before an appeal may
contends, there is an "apparent closely-
be taken from the trial court's refusal to
related connection" between radiology and
dismiss the case.
neurology." The dissent sees no such con-
III nection between neurology and ENT sur-
[17-19] Dr. Marable's letter in this gery that damages the brain." But surely
case easily meets this standard. Claiming a neurologist's expertise is relevant in ex-
expertise as a neurologist, he described plaining the connection between the Physi-
the injury to Samuel's brain, ascribed it to cians' injury to blood vessels during sur-
the Physicians' breach of the standards of gery and the hemiparesis and weakness
care, and stated that their breach caused Simon suffered. What further relevance
Samuel's partial paralysis and other linger- that expertise has to Santillan's claim
ing debilities. As an expert report, Dr. should first be addressed by the trial
Marable's letter was deficient. For exam- court. In no event, however, do we think
ple, it did not state the standard of care a claimant's opportunity to cure and a
but only implied that it was inconsistent defendant's immediate right to appeal
with the Physicians' conduct. But there is should turn on such fine distinctions, ei-
no question that in his opinion, Santillan's ther in an expert's qualifications or in his
claim against the Physicians has merit. opinions.
[20] The dissent argues that Dr. Mara- This case also demonstrates the difficul-
ble was not qualified to give an opinion ty with any more stringent standard. The
about the Physicians' conduct because he trial court denied the Physicians' motions
is only a neurologist, not a surgeon, and to dismiss and ordered that Santillan have
therefore his letter is so deficient it does a thirty-day extension to cure deficiencies
not qualify as an expert report. The Act in Dr. Marable's report nearly three years
requires that Dr. Marable's knowledge, ago. Santillan had already served an
training or experience, and practice be amended report, in response to which the
"relevant" to Santillan's claim." We ex- Physicians had filed renewed objections
68. See TEX CIV. PRAC. & REM. CODE 70. ld.
§ § 74.3SI(r)(S), 74.40\(a), (c).
71. Id.
69. Post at - .
558 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES
and again moved to dismiss the case. ly it is squarely presented, and I am confi-
Now that we have dismissed this appeal dent today's decision will brighten the line
for want of jurisdiction, the trial court will between deficient-report cases (where an
rule on the objections to the. amended re- extension is discretionary) and no-report
port and the motions to dismiss. Whatev- cases (where dismissal is mandatory).
er the ruling, another appeal will undoubt- * * *
edly follow. Our holding today will all but
In a trio of concurrences in 2007,2 2008.;)
eliminate the first, wasteful appeal. Just
and 2009,4 I focused on this nagging ques-
as importantly, it will help assure that a
tion: Is there a legal difference between
claimant, after being apprised of a defen-
filing nothing and filing something that
dant's objections to an expert report, and
amounts to nothing? That is, can a filing
having had an opportunity to discuss those
be so utterly lacking in the required statu-
objections at a hearing before the trial
tory elements as to be no report at all,
court, will have a fair opportunity to cure
thus requiring dismissal? I join today's
any deficiencies and demonstrate that his
decision, which I read to confirm my con-
claim is not frivolous and should be deter-
mined on the merits. sistently stated view: If a document bears
zero resemblance to what the statute envi-
* * * sions-more to the point, if it never as-
Accordingly, the judgment of the court serts that anyone did anything wrong-it
of appeals dismissing this appeal for want cannot receive an extension.
of jurisdiction is
In Ogletree v. Matthews, I described
Affi:nned. what I naively hoped would be "a rare bird
in Texas legal practice" 5_a plaintiff pass-
Justice WILLETT filed a concurring
opinion. ing off as a bona fide report a document so
facially absurd that, "no matter how chari-
Justice JOHNSON filed a dissenting tably viewed, it simply cannot be deemed
opinion, in which Justice WAINWRIGHT an 'expert report' at all, even a deficient
joined. one." 6 The deficient-or-no-report issue
Justice WILLETT, concurring. was not present in Ogletree, but I noticed
Since 2006 we have circled an issue both it in another then-pending case, Lewis v.
recurring and elusive: whether any docu- Funderburk, filed one week before Ogle-
ment, even one that never accuses anyone tree.1
of committing malpractice, suffices to war- In Funderburk, the Court confronted
rant an unreviewable thirty-day extension "an actual sighting of this rare bird, a
under Section 74.351(c).1 Until today, the species that in my view merits extinction,
issue was procedurally (and frustratingly) not conservation." 8 The "report" in Fun-
unreachable and thus unresolvable. Final- derburk was a thank-you letter from one
I. See TEX. CIV. PRAC & REM.CODE § 74.35I(c). 5. 262 S.W.3d at 324 (Willett, J., concurring),
2. Ogletree v, Matthews, 262 S.W.3d 316, 323
6. [d. at 323.
(Tex.2007) (Willett, J., concurring).
3. Lewis v. Funderburk, 253 S.W.3d 204, 210 7. Funderburk, 253 S.W.3d at 2.09 (Willett, J.,
(Tex.200S) (Willett, J., concurring). concurring).
4. [11 re Watkins, 279 S.W.3d 633, 636 (Tex.
8. [d.
2009) (Willett, J.. concurring).
SCORESBY v. S~"lTILLAN Tex. 559
Cite as 346 S.W.3d 546 (Tex. 2011)
doctor to another-a letter that never once ry-dismissal provision u-or alternatively,
in any manner, way, shape, or form ac- this Court's express adoption of a grace-
cused anYQtL8 of malpractice." This period test that is indeed gracious, allow-
thpnks-for-your-referral letter was no ing extensions for most everything.
more a medical-expert report "than a doc- Under the Court's admittedly "lenient
tor-signed prescription or Christmas card standard," 15 the document must merely
would be," I wrote, adding, "If a report is "[contain] a statement of opinion by an
missed, not just amiss, courts are remiss if individual with expertise indicating that
they do not dismiss." 111 Alas, the defen- the claim asserted by the plaintiff against
dant did not ':"'aise the "no report" issue, the defendant has merit." 16 The line is
thus foreclosing a merits-based challenge." forgiving but bright: The "report" must
Finally came In re Watkins, where a actually allege someone committed mal-
plaintiff merely filed a narrative of treat- practice. The genesis of this elemental
ment, something that omitted every statu- requirement is found in Ogletree, where
torily required element and had no appar- the Court first indicated that the purport-
ent relationship to a medical-malpractice ed report must implicate a provider's con-
case." Like Funderburk, this case also duct. 17 It merits emphasis, however, that
had a procedural wrinkle that kept the today's standard, benevolent as it is, is not
marquee "no report" vs. "deficient report" satisfied by any medical-related piece of
issue out of reach. 13 But the rare-bird paper; the bar is low but not subterrane-
sightings, I noticed, were becoming more an. For example, the "report" in Funder-
commonplace. And they would proliferate burk would surely fail even today's lax
on our docket, I predicted, absent appel- test. The thank-you letter in that case
late enforcement of the statute's mandato- never mentioned malpractice by anyone,
9. The leiter is reproduced in its entirety in mus is unnecessary. If the report was merely
Chief Justice Gray's dissent in the court of deficient, then an interlocutory appeal was
appeals. See Lewis v. Funderburk, 191 prohibited, and granting mandamus to review
S.W.3d 756, 762-63 (Tex.App.-Waco 2006) it would subvert the Legislature's limit on
(Gray, c.r.. dissenting), rev'd, 253 S.W.3d 204 such review.") (citations omitted).
(Tex.2008 ).
14. My sense is that such sightings have in-
10. Funderburk, 253 S.W.3d at 210-11 (Willett, deed grown more prevalent, making Chapter
J., concurring). 74 defendants perhaps "identify with the sea-
side residents of Bodega Bay, besieged by
II. [d. at 208 (majority opinion) ("We do not avian attacks," In re Walkins, 279 S.W.3d at
reach the question addressed in the concur- 637 n. 13 (Willett, J., concurring) (citing THE
ring opinions here because it is not raised. BIRDS (Universal Pictures 1963»). or else
As stated in his reply brief. '(Dr.] Lewis has those Arkansans who witnessed the so-called
made it abundantly clear that he is not ap- Aflockalypse last New Year's Eve, when thou-
pealing the trial court's [initial] order (no sands of blackbirds and starlings fell mvsteri-
matter how vehemently he disagrees with it): ously from the skies.
but instead is only appealing the order deny-
ing his second motion to dismiss.").
15. 346 S.W.3d 546, 549.
12. 279 S.W.3d at 637 (Willett, J.. concurring).
16. [d. at 549.
13. [d. at 634 (majority opinion) ("The sepa-
rate writings join issue again today on the 17. 262 S.W.3d at 321 ("Because a report I!WI
question whether the item served was a defi- implicated Dr. Ogletree's conduct was served
cient report or no report at all. But here it and the trial court granted an extension. the
does not matter. If no report was served, court of appeals could not reach the merits of
interlocutory appeal was available, so ruanda- the motion to dismiss.") (emphasis added).
560 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES
even in the most implicit or glancing man- elements are absent as opposed to defi-
.nero Again, it is not merely that the letter cient:
omitted every required statutory element. (b) If, as to a defendant physician or
Rather, it never even hinted at having any health care provider, an expert report
relationship to a malpractice case at all- has not been served within the period
no mention of a claim or a defendant, much specified by Subsection (a), the court, on
less a claim that "an individual with exper- the motion of the affected physician or
tise" indicates "has merit." 18 health care provider, shall, subject to
* * * Subsection (c), enter an order that:
Based on my understanding of the (l) awards to the affected physician
Court's "minimal standard" 19_r equiring or health care provider reasonable at-
that someone with expertise express an torney's fees and costs of court in-
opinion that the plaintiff has a meritorious curred by the physician or health care
malpractice claim against the defendant-I provider; and
join the Court's decision.
(2) dismisses the claim with respect to
Justice JOHNSON, joined by Justice the physician or health care provider,
WAINWRIGHT, dissenting. with prejudice to the refiling of the
claim.
The Court says that a plaintiff who time-
ly files a defective expert report is eligible (c) If an expert report has not been
for an extension of time to cure the report served within the period specified by
if Subsection
[the report] contains a statement of (a) because elements of the report are
opinion by an individual with expertise found deficient, the court may grant one
indicating that the claim asserted by the 3o-day extension to the claimant in or-
plaintiff against the defendant has merit. der to cure the deficiency.
An individual's lack of relevant qualifica- TEX. Crv. PRAC. & REM.CODE § 74.35l(b),
tions and an opinion's inadequacies are (c); 1 see In re Watkins, 279 S.W.3d 633,
deficiencies the plaintiff should be given 634-35 (Tex.2009) (Johnson, J., concurring)
an opportunity to cure if it is possible to ("The definition [of expert report] requires
do so. that for a document to qualify as a statuto-
:346 S.W.3d 546, 549. In my view the ry expert report, it must demonstrate
Court's standard does not conform to re- three things: (1) someone with relevant
quirements the Legislature imposed in au- expertise (' "[ejxpert report" means a writ-
thorizing an extension to cure a deficient ten report by an expert'), (2) has an opin-
report. I respectfully dissent. ion ('that provides a fair summary of the
A trial court is statutorily authorized to expert's opinions'), and (3) that the defen-
grant an extension to cure elements of an dant was at fault for failing to meet appli-
expert report that are found deficient, not cable standards of care and thereby
to cure a report that substantively is not a harmed the plaintiff.... "), Absent an ex-
report, nor to cure a report from which pert with relevant expertise, I do not see
18. 346 S.W.3d at 549. The narrative in In re 19. Id. at 557.
Watkins might also fail today's test, as it
lacked every required statutory element. 1. Further references to the Civil Practice and
though unlike the referral letter in Fumier- Remedies Code will be by referring to section
burk, it at least mentions (twice) the defen-
numbers unless otherwise indicated.
dant physician's name.
SCORESBY v, SANTILLAN Tex. 561
CUe as 346 S.W.3d 546 (Tex. 2011)
how there can be an expert report under (Tex.2ooS)). The Court has recognized
the statute, because the foundation of an that not every doctor is qualified to render
expert report is the requirement that the an opinion about every aspect of medicine
report be by a qualified expert: "Expert" or medical science. In re McAllen Med.
for purposes of a report means: Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2ooS);
[Wlith respect to a person giving opinion Broden, v. Heise, 924 S.W.2d 14S, 152
testimony regarding whether a physi- (Tex.1996) ("[G]iven the increasingly spe-
cian departed from accepted standards cialized and technical nature of medicine,
of 'medical care, an expert qualified to there is no validity, if there ever was, to
testify under the requirements of Sec- the notion that every licensed medical doc-
tion 74.401. . . . . tor should be automatically qualified to
TEX. Crv. PRAC. & REM.CODE testify as an expert on every medical ques-
§ 74.35l(r)(5)(A). Section 74.401 provides tion.").
specific requirements for an expert to be The Court's new test apparently allows
qualified to provide the section 74.351 re- a report to qualify as a deficient report
port: even if the report demonstrates none of
(a) In a suit involving a health care lia- the three requirements of section
bility claim against a physician for injury 74.401(a). The test requires only that the
to or death of a patient, a person may person rendering the opinion have some
qualify as an expert witness on the issue
type of undefined level of expertise. It
of whether the physician departed from
abandons the requirements that the report
accepted standards of medical care only
show the expert (1) has knowledge of ac-
if the person is a physician who:
cepted standards of care for the diagnosis,
(1) is practicing medicine at the time
care, or treatment of the illness, injury, or
such testimony is given or was prac-
condition involved in the claim; and (2)
ticing medicine at the time the claim
qualifies on the basis of training or experi-
arose;
ence to offer an expert opinion regarding
(2) has knowledge of accepted stan-
those accepted standards of medical care.
dards of medical care for the diagno-
See TEX. CIV. PRAC. & REM.CODE
sis, care, or treatment of the illness,
§ 74.401(a)(2), (3). Nor does the test re-
injury, or condition involved in the
claim; and quire a showing that the expert is practic-
ing medicine or was doing so when the
(3) is qualified on the basis of training
claim arose. See id. § 74.401(a)(1).
or experience to offer an expert opin-
ion regarding those accepted stan- Dr. Marable's report says nothing about
dards of medical care. his surgical qualifications. The report
Id. § 74.401(a). The Court has said that does not give any facts or information
"[a] report by an unqualified expert will which would qualify him to opine on the
sometimes (though not always) reflect a standards of care for the type of surgery
good-faith effort sufficient to justify a 30- performed in this case, and he did not
day extension." In re Busier, 275 S.W.3d attach a CV to the report," The report
475, 477 (Tex.2ooS) (per curiam) (citing was written on a letterhead showing that
Leland v. Brandel; 257 S.W.3d 204, 208 he maintains board certification in neurolo-
2. An amended report by Dr. Marable with a it did not show that Dr. Marable had any
CV attached was filed on the day the defen- training or expertise in the type of surgery
dants' motions to dismiss were heard. The involved here.
CV was not considered bv the trial court, but
562 Tex. 346 SOUTH WESTERN REPORTER, 3d SERIES
gy and psychiatry. In his report he makes . expert report had been filed because the
it clear that he is basing his jipinion on his report was by a radiologist who was not
expertise in neurology, not surgery: "AR a qualified to express an opinion on the stan-
board certified neurologist, my opinion is dard of care for a urologist. 262 S.W.3d
that Dr. Ducic violated the standards" 'Of 316, 319 (Tex.2007). The urologist defen-
care, as well as Dr. Scoresby, and as' a dant had performed a urethral catheteriza-
result [Santillan's] damages are that of a tion during which the patient suffered
right-sided hemiparesis with possibility of bruising and bladder perforation. Id. at
seizure foci in the future." The neurologi- 317. We held that the radiologist's report
cal expertise on which Dr. Marable. relies was deficient, not absent. Id. at 320. But
does not involve surgery. See WILSON in Ogletree the radiologist was opining
STEGEMAN. MEDICAL TERMS SIMPLIFIED 106 about whether the urologist should have
(1976) (noting that neurologists do not per- performed the catheterization under flou-
form surgery); American Academy of roscopic guidance in order to avoid or
Neurology, Working unih. Your Doctor, more timely diagnose the perforation. Id.
https://patients.aan.comlgoiworkingwith at 318. In that instance, the radiologist
yourdoctor (last visited Apr. 18, 2011) was opining about whether the urologist
("Neurologists do not perform surgery."). should have involved radiology-related de-
Dr. Marable's report does not claim that vices and techniques (the specialty in
he now performs or has in the past per- which the expert was qualified) in treating
formed surgery, much less this particular
the patient and whether the failure to do
type of surgery. The report neither
so resulted in injury. The matter before
claims that he has knowledge of the stan-
us is different from Ogletree because there
dard of care for performing the surgery
is no apparent closely related connection
nor that he is qualified on the basis of
between the expertise involved in the spe-
training or experience to offer an expert
cialty of neurology and the expertise in-
opinion on those standards of care. See
volved in knowing how to perform, and
TEX. CIV. PRAC. & REM.CODE 74.40l(a)(2), (3).
performing, the surgery performed by
The report does not say that he has partic-
ipated in, observed, or even read about Drs. Scoresby and Ducic.
how to do "procedures of left mediomaxil- In McAllen Medical Center, 275 S.W.3d
lectomy, excision of neoplasm of the maxil- 458, we considered the validity of a doc-
la, calvarial bone growth and reconstruc- tor's expert reports in negligent creden-
tion of maxilla and excision of tumor of tialing suits against the medical center.
pterygopalatin structures," which were the McAllen challenged the adequacy of the
surgical procedures performed by Drs. reports on the basis that the doctor was
Scoresby and Ducic.' In short, nothing in not qualified to express opinions as to the
Dr. Marable's report raises an inference credentialing process. Id. at 462. We
that he is a qualified expert as to this type agreed with McAllen and held that the
of surgery, as prescribed by statute, and reports were inadequate:
the report is all that was before the trial On this record, the plaintiffs have not
court in regard to his qualifications. established Dr. Brown's qualifications.
In Ogletree v. Matthews, we considered "The standard of care for a hospital is
a defendant's contention that no statutory what an ordinarily prudent hospital
3. Santillan's attorney represented during oral Marable that he had seen surgery of this type
argument that he believed Dr. Marable's because he had treated patients after they had
amended report contained statements by Dr. the surgery.
SCORESBY v, SANTILLAN Tex. 563
Cite as 346 S.W.3d 546 (Tex. 2011)
would do under the same or similar cir- care and those negligent activities having
cumstances." Nothing in the record caused damages were sufficient to support
here shows how Dr. Brown is qualified an extension of time. But the report sets
to address this standard. Nor can we out his opinion as a neurologist, not a
infer that she may have some knowledge physician with surgical expertise. The
or expertise that is not included in the Legislature did not intend that an expert
record. report could be bya doctor with no dem-
Moreover. "a negligent credentialing onstrated or inferable experience and
claim involves a specialized standard of training in-a practice area who reads medi-
care" and "the health care industry has cal records and writes a report containing
developed various guidelines to govern a the simplistic indictments in the report
hospital's credentialing process." Dr. here: the defendants negligently lacerated
Brown's reports contain no reference to the brain and further surgery was re-
any of those guidelines, or any indication quired. See TEX. CIV PRAC. & REM.CODE
that she has special knowledge, training, § 74.40l(a).
or experience regarding this process.
Nor was Dr. Brown qualified merely The Court says that "'there are consti-
because she is a physician; "given the tutional limitations upon the power of
increasingly specialized and technical courts ... to dismiss an action without
nature of medicine, there is no validity, affording a party the opportunity for a
if there ever was, to the notion that hearing on the merits of his cause.''' 346
every licensed medical doctor should be SW.3d at 554 (quoting TransAmerican
automatically qualified to testify as an Natural Gos Corp. v. Powell, 811 S.W.2d
expert on every medical question." 913, 918 (Tex.l991). I agree. But the
Id. at 463 (citations omitted). statement does not fit here. First of all,
the constitutionality of the statute is not
The substance of the issue before us is
challenged. Second, even if it were, the
similar to the issue we decided in McAllen
Medical Center. Dr. Marable's report in-
statutory requirement of a timely report
dicates that the defendants violated stan- by a qualified expert did not spring upon
dards of care for the surgery and their Santillan without warning. The require-
negligent activity caused damages to San- ment was in place before the surgery took
tillan. But Dr. Marable's report does not place in January 2006, while suit was not
show he was qualified under the statute to filed against the defendant doctors and
give such an expert opinion, nor did his Tarrant County Hospital until January
opinion about the surgeons' decisions and 2008. Santillan had time to find a quali-
actions during surgery involve his special- fied expert to provide the report required
ty except to the extent a physician with his to show his claim had merit, if he could
specialty would have been involved in post- find such an expert.
surgical care and possibly a decision to I would hold that failure to timely serve
reoperate. a report by an expert qualified under the
If Dr. Marable's report had in some statute is not merely a deficiency in an
manner demonstrated that he was quali- element of the report, it is a deficiency
fied to render an opinion about the stan- going to the question of whether the re-
dard of care for the surgery involved, then port is competent and is entitled to be
I might agree that his conclusory state- given any weight. And I would hold that
ments about the defendants having negli- it is not an expert report and the tiling of
gently violated applicable standards of such a report supports inferences that a
564 Tex. ;~46 SOUTH WESTERN REPORTER, 3d SERIES
proper report by a qualified expert was :3. Habeas Corpus e::>463.1
~ not available, the claim lacks merit, and Defendant may challenge an indict-
the claim should be dismissed. ment .that, on its face, is barred by the
I would reverse the judgment of the statute of timitations by way of a pretrial
court of appeals and dismiss the case. See application for writ of habeas corpus.
Badiga v. Lopez, 274 S.W.3d 681. .684-85
4. Habeas Corpus e=>463.1 ",
(Tex.2009).
If an indictment alleges that the stat-
ute of limitations is tolled, the sufficiency
of that tolling allegation may not be chal-
lenged by a pretrial writ of habeas corpus.
5. Habeas Corpus e=>463.1, 474
Ex parte Tenika BROOKS. Facially barred indictments that can-
No. 12-06--00378-CR. not be repaired have a defect that is incur-
able, and the statute of limitations is an
Court of Appeals of Texas,
absolute bar to prosecution, but a repara-
Tyler.
ble indictment or tolling provision may be
June 20, 2007. amended and any defect repaired; thus,
Discretionary Review Granted the first is the proper subject of a pretrial
Oct. 10, 2007. application for habeas corpus, the second
Background: Defendant charged by in- is not.
dictment with aggregate theft applied for 6. Habeas Corpus e=>814
pretrial writ of habeas corpus. The 145th Appellate court lacked jurisdiction to
Judicial District Court, Nacogdoches address merits of theft defendant's inter-
County, Campbell Cox II, J., denied appli- locutory appeal from denial of her pretrial
cation, and defendant took interlocutory application for writ of habeas corpus,
appeal.
where defendant's complaint as to suffi-
Holding: The Court of Appeals, Brian ciency of state's anticipated argument as to
Hoyle, J., held that it lacked jurisdiction to tolling of statute of limitations was not
address merits of defendant's appeal. proper subject of pretrial application for
Appeal dismissed. writ of habeas corpus, and both imputed
tolling allegation and indictment itself
1. Criminal Law e=>147, 157 were reparable.
Prosecutions for theft as a felony 7. Habeas Corpus e=>275.1
must be initiated within five years of the Trial court's decision to dismiss first
theft; however, that period of limitations is indictment against defendant charged in
tolled for the time that an indictment is second indictment with aggregate theft
pending. Vernon's Ann.Texas C.C.P. arts. could not be raised by pretrial application
12.0l(4)(A), 12.05(b).
for writ of habeas corpus, where defendant
2. Criminal Law e=>157 had remedies at law and potential injury
Prior indictment tolls the statute of resulting from delaying consideration of
limitations when the subsequent indict- issue until after conviction and' appeal was
ment alleges the same conduct, same act, neither proximate nor serious; defendant
or same transaction. Vernon's Ann.Texas had adequate remedies on appeal, or could
C.C.P. art. 12.05(b). tile motion to dismiss or quash second