Mary McCoy v. Anthony Serna
13-15-00541-CV
| Tex. App. | Oct 6, 2016Background
- Plaintiff Anthony Serna treated for a broken hand; nurse practitioner Mary McCoy allegedly advised postponing x‑rays and told Serna an x‑ray wasn’t needed after cast application, delaying appropriate imaging and follow‑up.
- Subsequent care at another clinic revealed nonunion; Serna underwent corrective surgery and sued Dr. Luis Gonzalez and McCoy for health‑care liability.
- Serna served an expert report by orthopedic surgeon Dr. Mark W. Scioli originally directed to Gonzalez; after amendment adding McCoy, Serna served the same Scioli reports on McCoy.
- McCoy moved to dismiss under Tex. Civ. Prac. & Rem. Code § 74.351, arguing Scioli’s reports failed to: establish his qualifications to opine on nurse‑practitioner care, state the applicable standard of care for McCoy, and explain causation; she also argued the reports were conclusory.
- The trial court denied the motion to dismiss; McCoy appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scioli’s expert reports show he is qualified to opine on a nurse practitioner’s standard of care | Scioli’s CV and experience as an orthopedic surgeon who trains/works with nurses shows familiarity sufficient under §74.402 | Scioli’s reports do not state familiarity with nurse practitioner standards; lectures listed do not relate to treating a broken hand | Court: Scioli did not establish qualifications to testify about nurse practitioner standard of care; dismissal required |
Key Cases Cited
- Larson v. Downing, 197 S.W.3d 303 (Tex. 2006) (abuse‑of‑discretion review for expert report rulings)
- Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) (standards for appellate review of expert qualification rulings)
- Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (expert report must show standard of care, breach, and causation)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (good‑faith effort means no material deficiency in report)
- TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41 (Tex. 2013) (articulates elements required in an expert report)
- Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (expert must link conclusions to facts, not merely state conclusions)
- Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) (supporting precedent on expert report substance)
- Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (expert must be qualified on the specific issue addressed)
- Simonson v. Keppard, 225 S.W.3d 868 (Tex. App.—Dallas 2007) (expert inadequate where no claim of familiarity with nurse practitioner standards)
- San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806 (Tex. App.—Houston [14th Dist.] 2008) (expert adequate where report expressly stated familiarity with nurse and physician standards)
Decision: Reversed trial court; remanded with instructions to dismiss Serna's suit with prejudice and determine McCoy's reasonable attorney's fees and costs.