Kevin D. Wheeler, M.D. v. Charles F. Luberger
14-14-00992-CV
| Tex. App. | Feb 6, 2015Background
- Plaintiff Luberger alleged that during a June 14, 2012 laparoscopic cholecystectomy Dr. Kevin Wheeler transected the common bile duct, requiring conversion to open surgery and later procedures; suit filed Feb. 16, 2014.
- Plaintiff served a three-paragraph expert letter from Atif Iqbal, M.D. (June 13, 2014) that criticized the repair and stated an intraoperative consult "should have been called"; defendant Wheeler objected and moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351.
- At the hearing the trial court acknowledged the Iqbal letter lacked explicit standard-of-care, breach, and causation specifics but granted a 30-day extension to cure rather than dismissing.
- Plaintiff then served a replacement/"curative" report from Oluwole Fajolu, M.D. (Oct. 8, 2014); Wheeler renewed his Chapter 74 objections and moved to dismiss; the trial court again denied dismissal.
- Appellant Wheeler appeals interlocutorily under § 51.014(a)(9), arguing the Iqbal report was so deficient as to be a "no report" (not curable) and that the curative report likewise failed to comply with Chapter 74, so dismissal with prejudice and fees are mandatory.
Issues
| Issue | Plaintiff's Argument (Luberger) | Defendant's Argument (Wheeler) | Held (trial court action under review) |
|---|---|---|---|
| Whether Iqbal letter was a "report" capable of cure under § 74.351(c) | Letter is an expert report sufficient to permit a 30-day cure | Letter fails to set out standard of care, breach, causation, and expert qualifications — it is a "no report" and not curable | Trial court granted a 30-day extension (denying immediate dismissal) |
| Whether the curative Fajolu report satisfied § 74.351 requirements | Report supplies standard, breach, and causation linking Wheeler’s acts to injury | Report remains conclusory and fails to explain how specific acts breached the standard or probably caused damages | Trial court overruled Wheeler’s second motion to dismiss (denied dismissal) |
| Whether trial court abused discretion by denying dismissal after finding deficiencies | Plaintiff had opportunity and cured within extension | Court lacked discretion once report is a "no report"; denial was arbitrary/unreasonable | Trial court denied dismissal twice; appeal challenges those denials |
| Whether appellant is entitled to attorneys’ fees and dismissal with prejudice under § 74.351(b) | Fees and dismissal not warranted because cure provided | Statute mandates fees and dismissal where no adequate expert report is served | Trial court denied dismissal; appellant seeks reversal and fee award on appeal |
Key Cases Cited
- American Transitional Care Centers, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (sets out the "good-faith effort" standard for expert reports and requires discussion of standard, breach, and causation)
- Bowie Memorial Hospital v. Wright, 79 S.W.3d 48 (Tex. 2002) (limits review to the four corners of the report and requires linkage of opinions to factual bases)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (discusses trial court discretion to grant a single 30-day extension and policy favoring cure when reports meet minimal requirements)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (articulates minimum criteria for a paper to qualify as a report: timely, from a qualified expert, and implicating defendant’s conduct)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (distinguishes absent reports from merely deficient ones)
- Rivenes v. Holden, 252 S.W.3d 332 (Tex. App. — Houston [14th Dist.] 2008) (holds that a report that fails to implicate defendant is a "no report" and not curable)
- In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832 (Tex. App. — Houston [14th Dist.] 2003) (discusses comprehensive nature of Chapter 74 and standard of review)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (articulates abuse-of-discretion standard for appellate review)