366 S.W.3d 326
Tex. App.2012Background
- Brewer filed a health care liability claim against Standefer for failure to obtain informed consent to a cosmetic face-lift and a DTPA claim against Scientific Image alleging misrepresentation of risks and benefits.
- Within 120 days Brewer served an expert report from Adams; objections were raised and motions to dismiss were denied.
- Brewer later served a supplemental report; interlocutory appeals were filed challenging the reports’ sufficiency as to Standefer and Scientific Image.
- This Court previously held Adams's report deficient as to Standefer and remanded for a 30-day extension to correct.
- On remand Havard’s supplemental report was considered; the trial court dismissed; this Court held Scientific Image is a health care provider and Brewer’s DTPA claims are health care liability claims, remanding for fee determination.
- This appeal challenges the trial court’s award of attorney’s fees to Scientific Image and the dismissal of Brewer’s claims against Standefer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Attorneys’ fees award proper? | Brewer argues fee award unconstitutional | Scientific Image contends award was proper given prior rulings | Affirmed award of attorney's fees and costs to Scientific Image. |
| Are Adams and Havard reports sufficient causation under Chap. 74? | Reports together satisfy causation under §74.351 | Standard requires a reasonable person would have refused; reports fail | Affirmed dismissal; reports together do not meet causation requirements. |
Key Cases Cited
- American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (expert report standards and good faith effort guidance under §74.351)
- Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex.App.-Dallas 2010) (abuse of discretion standard for dismissal under §74.351)
- Garcia v. Gomez, 286 S.W.3d 445 (Tex.App.-Corpus Christi 2008) (treatment of expert report sufficiency on appeal)
- McKinley v. Stripling, 763 S.W.2d 407 (Tex.1989) (informed consent causation requires reasonable person standard)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex.2010) (Palacios framework; necessity to link breach to injury)
- Wright v. Wright (Wright), 79 S.W.3d 48 (Tex.2002) (link between breach and harm essential in expert report)
- Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909 (Tex.App.-Dallas 2007) (requirement to connect standard of care, breach, causation)