Neason v. Buckner
352 S.W.3d 254
| Tex. App. | 2011Background
- Buckners sued Neason for sixteen acts of alleged medical negligence; only three alleged acts are at issue on appeal.
- Preoperative evaluation warned Buckner about bleeding risks; Buckner was instructed to resume meds only after orthopedic approval.
- Buckner died of bilateral pulmonary emboli shortly after hospital discharge following February 2009 surgery.
- Original expert report (October 9, 2009) and a duplicate served February 11, 2010 opined Neason could have prevented Buckner's death with proper care.
- Neason moved to dismiss the three targeted allegations August 5, 2010; trial court denied and Buckners cured with a supplemental report.
- Neason filed a second motion to dismiss September 14, 2010; the trial court denied it; Neason appealed asserting lack of timely expert-support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Neason waive objections to the expert report by delaying? | Buckner: objections must be timely within 21 days; Neason waived all objections. | Neason: objections to sufficiency may be raised later for specific acts; supplemental report valid. | Waived; failure to timely object to original report bars later objections. |
| Can an expert report address some acts while not others and still serve as a report? | Buckner: Scoresby permits a report to support merit even if not addressing every act. | Neason: three acts lack arising support; those should be dismissed. | Yes; the report can be sufficient if it contains expert opinion linking conduct to death. |
| Does the timely failure to object render subsequent objections under §74.351(a) moot? | Buckner: timely objection required; failure means waiver and processing of cure orders is moot. | Neason: could still challenge deficiencies via second motion to dismiss. | Objections waived; subsequent challenges not permitted. |
| Is there appellate jurisdiction to review an interlocutory order denying a dismissal under §74.351(b)? | Buckner: §51.014(a)(9) allows appeal of denial of dismissal by health care provider. | Neason: correct statutory basis for interlocutory review. | Jurisdiction exists; interlocutory appeal proper. |
Key Cases Cited
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (document qualifies as expert report if it contains opinion by expert indicating merit; deficiencies cureable)
- Ogletree v. Matthews, 262 S.W.3d 316 (Tex. 2007) (waiver of objections to expert report when not timely raised)
- Maris v. Hendricks, 262 S.W.3d 379 (Tex. App.-Fort Worth 2008) (untimely objection to expert report; cure of deficiencies)
- Benson v. Vernon, 303 S.W.3d 755 (Tex. App.-Waco 2009) (distinguishes between 'no report' and deficient report; not controlling here)
- Arboretum Nursing & Rehab. Ctr. of Winnie, Inc. v. Isaacks, No. 14-07-00895-CV (Tex. App.-Houston [14th Dist.] 2008) (sufficiency of expert report addressing subset of allegations)
- Pokluda v. Baylor Coll. of Med., 283 S.W.3d 110 (Tex. App.-Houston [14th Dist.] 2009) (treatment of claims under expert report; addressing pre- and post-operative negligence)