OPINION
In this original proceeding, relators Gary L. Brown, M.D., P.A., and Gary L. Brown, M.D. (collectively, “Brown”), defendants in a health care liability claim, 1 seek writ of mandamus directing the trial court to vacate an order granting a 30-day grace period to file an expert report. We conditionally grant the petition.
BACKGROUND
Real party in interest Adam Fraley filed a health care liability claim against Brown, a urologist, alleging failure to timely diagnose Fraley’s testicular cancer. Pursuant to his obligation to file an expert report, Fraley filed a report from Badrinath Ko-nety, M.D. Brown filed a motion to dismiss, asserting that Konety’s report was insufficient. In response, Fraley asserted that the report was sufficient, but also filed a motion for a grace period under section 13.01(g) in which he claimed that, if Konety’s report was insufficient, then he was entitled to a 30-day grace period because he mistakenly believed that the re *6 port satisfied the requirements of section 13.01(r)(6). After hearing, the trial court found Konety’s expert report insufficient, granted Fraley’s motion for grace period and denied Brown’s motion to dismiss.
Referencing
Walker v. Gutierrez,
Fraley first urges that mandamus is not appropriate to correct an improper grant of a grace period because an adequate remedy is available by appeal. He also maintains that if Konety’s report was not sufficient, the insufficiency was not intentional or the result of conscious indifference, but was due to an accident or mistake, and the trial court did not abuse its discretion in granting a grace period.
We will address the issues in the order presented by the parties.
AVAILABILITY OF MANDAMUS
Writ of mandamus is an extraordinary remedy that will issue only (1) to correct a clear abuse of discretion or the violation of a duty imposed by law, when (2) there is no adequate remedy by law.
See Canadian Helicopters Ltd. v. Wittig,
This court has determined that an erroneous grant of a grace period denies a party an adequate remedy by law.
See In re Rodriguez,
DID THE EXPERT REPORT OMIT REQUIRED ELEMENTS
The trial court found that Konety’s report did not adequately address the elements of standard of care and causation. Fraley recognizes that when a health care claim expert report is inadequate because it omits one or more of the elements required by section 13.01(r)(6), then the assertion that the claimant believed the report to be adequate and that the inadequacy was due to a mistake or accident does not negate a finding of intentional conduct or conscious indifference.
See Walker,
In his report, Konety asserts that he is familiar with the standard of care required of a urologist in evaluation, diagnosis, and treatment of the type of tumor involved in Fraley’s case. Konety notes that a sonogram ordered by Brown and taken in April 2002, showed that Fraley had an extrates-ticular mass with vascularity, Brown’s working diagnosis was a benign cholesterol *7 pearl, and Brown decided to observe the mass. At a follow-up interval of one year, the mass had enlarged, was diagnosed as malignant, and was surgically excised. Konety’s report then outlines the remainder of Fraley’s course of treatment and gives a prognosis.
Konety opines in his report that at the time of the sonogram in April 2002, presence of vascularity within the mass “should have raised reasonable concerns” regarding a possible malignancy. The report also sets out that it would have been “more in keeping with the standard of care” for Brown to have considered either reevaluation after a shorter follow-up period to closely monitor the mass, or to have advised surgical intervention. Konety does not, however, express an opinion in the report that a reasonably prudent urologist would have diagnosed Fraley’s testicular mass as a malignancy following the April 2002 consultation, or that certain specific actions or courses of action would have been taken by a reasonably prudent urologist to diagnose Fraley’s mass.
It is the substance of the opinions in question, not the technical words used, that determines whether a report complies with statutory mandates.
See Bowie Mem’l Hosp. v. Wright,
Because Koenty’s report omitted an element required by the statute, a belief on behalf of Fraley and his attorney that the report complied with the statute is not sufficient to support a finding of accident or mistake.
See Walker,
Our determination that Konety’s report omitted the standard of care obviates the need for us to address whether his report addresses the causation element, as required by § 13.01(r)(6). See Tex.R.App. P. 47.1.
CONCLUSION
Brown is entitled to the relief sought. We conditionally grant the petition for writ of mandamus. We are confident the trial court will grant the relief to which Brown is entitled pursuant to § 13.01(e) and this opinion. We will direct the clerk to issue the writ only in the event the trial court does not do so.
Notes
. See Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003). Article 4590i was repealed effective September 1, 2003. Health-care liability claims are now governed by Tex. Civ. Prac. & Rem.Code Ann. ch. 74 (Vernon Pamph. Supp.2004). References in this opinion will be to the former statute and its provisions. References to subsections of article 4590i will be by reference to “section-" or " § -