Gerald Harrington, M.D. v. Sandra Schroeder and Duane J. Ramos, Individually and as All Heirs to the Estate of Sylvia Ramos
04-15-00136-CV
| Tex. App. | Apr 20, 2015Background
- Plaintiffs (Schroeder and Ramos, heirs of Sylvia Ramos) sued multiple health‑care defendants, alleging medical negligence that contributed to resident assaults and Ramos’s death; Harrington was added in an amended petition.
- Plaintiffs served a §74.351 expert report from Dr. Loren Lipson and her CV within the statutory deadline; Harrington objected that the report was deficient and moved to dismiss under Tex. Civ. Prac. & Rem. Code §74.351.
- Trial court held a hearing and denied Harrington’s motion to dismiss and did not award attorney’s fees; Harrington appealed that denial.
- Appellant argues Lipson’s report fails two requirements: (1) it does not show she is a qualified expert under §74.351/§74.401 for liability and causation opinions, and (2) it fails to explain how Harrington’s alleged breaches proximately caused Ramos’s injuries/death (causation).
- Appellant further argues the trial court had a ministerial duty to dismiss with prejudice and award attorney’s fees under §74.351(b) when an adequate expert report is not served.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s §74.351 expert report represented an objective good‑faith effort to comply (adequacy) | Lipson’s report and CV satisfy §74.351 elements and were timely served | Report is conclusory on causation and lacks the factual link required by Palacios/Bowie; thus not a good‑faith report | Trial court denied dismissal (order below); appellant contends denial was an abuse of discretion |
| Whether Lipson is qualified under §74.351/§74.401 to opine on standard of care | Lipson’s experience and CV show relevant training and background to opine on nursing‑home care standards | Lipson’s CV and report do not affirmatively show current board certification or active practice in areas relevant to Harrington at the time of claim | Trial court nonetheless denied motion; appellant argues qualifications were insufficient |
| Whether Lipson is a qualified “physician” to opine on medical causation (licensing/locality) | Plaintiffs contend Lipson is competent to give causation opinions despite being licensed in California | Appellant argues §74.351(r)(5)(C) requires a physician qualified under Texas Rules of Evidence and, per §74.001(a)(23), a ‘‘physician’’ is licensed in Texas; Lipson is not licensed in Texas and gave only conclusory causation statements | Trial court denied dismissal; appellant argues Tenet and other authority support requiring more than conclusory causation and, per appellant, Texas licensing for causation experts |
| Whether the trial court must award attorney’s fees if dismissal under §74.351(b) is warranted | Plaintiffs did not address fee entitlement in detail at hearing | If dismissal is required under §74.351(b), the statute mandates awarding reasonable attorney’s fees and costs to the prevailing defendant | Trial court denied dismissal and did not award fees; appellant contends denial of fees was an abuse of discretion and requests remand for fee award if dismissal ordered on appeal |
Key Cases Cited
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (standard of review for §74.351 challenges and appellate review principles)
- Palacios v. American Transitional Care Centers, 46 S.W.3d 873 (Tex. 2001) (expert report must provide fair summary of standards, breaches, and causation; four‑corners rule)
- Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (report must explain causal link; conclusory assertions insufficient)
- Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) (abuse of discretion standard and definition of abuse)
- Tenet Hospitals Ltd. v. Boada, 304 S.W.3d 528 (Tex. App.—El Paso 2009) (addresses whether physician must be Texas‑licensed to opine on causation)
- Fulp v. Miller, 286 S.W.3d 501 (Tex. App.—Corpus Christi 2009) (expert report deficient where causation is merely conclusory)
- Hutchinson v. Montemayor, 144 S.W.3d 614 (Tex. App.—San Antonio 2004) (speculation/conjecture cannot establish medical malpractice liability)