Barbara Marino, M.D. v. Wendy Wilkins
393 S.W.3d 318
Tex. App.2012Background
- Wendy Wilkins, plaintiff, sued Barbara Marino, M.D., a gynecologist, for negligent and grossly negligent liposuction with alleged severe disfigurement and deficient postoperative care.
- Wilkins served expert reports by Dr. Leo Lapuerta under Tex. Civ. Prac. & Rem. Code § 74.351; the original report was served January 10, 2011.
- Marino objected to the original report and the trial court denied dismissal, ruling Marino’s failure to object to two theories precluded dismissal on those theories.
- Lapuerta’s original report stated standards of care, breaches, and causation, including that liposuction should be performed by qualified surgeons, conservatively, with postoperative use of bandages/girdles; breaches included unqualified surgeon, over-resection, and poor postoperative care.
- Wilkins filed an amended report after a 30-day extension, expanding the ‘conservative approach’ standard to emphasize multiple procedures when needed and avoiding over-resection.
- The trial court treated the matter as a waiver issue and denied Marino’s motion to dismiss; Marino appealed alleging error in waiving objections and in substance to the amended report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amended report is adequate on the conservative-approach standard | Potts allows proceeding if at least one theory is supported | Amended report still lacks objective standard specifics for conservative approach | Denied; court upheld proceeding past report stage |
| Whether at least one theory of liability remained unobjected to under Potts | If any theory is unobjected, entire action may proceed | Marino timely objected to other theories; waivers apply for objected theories | Marino’s objections to unobjected theory sufficient to deny dismissal were proper; Potts applied |
| Whether Marino waived objections to Wilkins’s postoperative-care theory | Waiver does not apply to all objections | New objections to amended report regarding postoperative care are untimely | Objections to the postoperative-care theory were waived; no dismissal on that theory |
| Whether Marino waived objections to Lapuerta’s qualifications theory | Objections to qualifications should be timely; linkage to other theories does not preclude | Objections to qualifications were not renewed in amended report; waived | Waived; no dismissal on qualification theory |
Key Cases Cited
- Certified EMS v. Potts, 355 S.W.3d 683 (Tex. App.—Houston [1st Dist.] 2011) (if at least one liability theory is addressed, entire action may proceed to discovery)
- Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d 873 (Tex. 2001) (standard framework for health care liability report standards)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (defendant must object timely to deficient reports; waiver framework)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (trial court should grant extension if deficiencies are curable)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (health care liability claim includes potential unfiled theories under same facts)