Thе issue in this medical malpractice case is whether the plaintiffs expert reports meet the specificity requirements of section 13.01 of the Medical Liability and Insurance Improvement Act (the “MLI-IA”). Former TEX. REV. CIV. STAT. art. 4590i, § 13.01. 1
In September 1998, Marie Langley brought suit alleging that the death of her 46-year-old husband, John Langley, resulted from the negligenсe of Providence Hospital in Waco and several physicians, including Dr. Floyd Jernigan. The trial court dismissed Langley’s suit against Dr. Jernigan for failure to provide an exрert report that satisfied the requirements of section 13.01 of the MLIIA. The court of appeals reversed the trial court’s dismissal. We reverse the judgment of the cоurt of appeals and dismiss with prejudice Langley’s claims against Dr. Jernigan.
On the morning of October 6,1996, John Langley went to Providence Hospital complaining of stomach pain. An abdominal x-ray was performed, and John was diagnosed with fecal impaction. He was given a gallon of GoLYTELY to drink at home and was instructed to return thаt evening. He returned a few hours later in acute pain and was admitted to the hospital. John’s condition worsened, and he underwent emergency surgery that evening. He fared poorly overnight and was operated on again the following day. John died the next morning, October 8,1996.
Marie Langley filed this suit in September 1998, and filed two timely expert reports thereafter. In June 2000, Dr. Jernigan filed a motion to dismiss with prejudice under section 13.01(e) of the MLIIA based on alleged deficiencies in Langley’s expert reports. At the hearing on the motion to dismiss, Langley argued that Dr. Jernigan had waived his statutory right to seek dismissal because he had waited more than 600 days to challenge thе reports. Langley also moved for an extension of time to allow the late filing of a third expert report. The trial court denied Langley’s motion for an extеnsion of time, and then severed and dismissed Langley’s claims against Dr. Jernigan. The court of appeals reversed, holding that Dr. Jernigan had impliedly waived his rights under section 13.01.
On remand, the court of appeals initially аffirmed the trial court’s dismissal, No. 10-
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00-00373-CV,
Under section 13.01(d)(1) оf the MLIIA, a plaintiff bringing a health care liability claim must furnish an expert report within 180 days of filing suit. Former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)(1). The expert report need not marshal every bit of the plaintiffs evidence, but it must provide “a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failurе and the injury, harm or damages claimed.” Id. § 13.01(r)(6). If a claimant fails to file an adequate expert report timely, the trial court must dismiss a claimant’s suit with prejudice upon mоtion by the defendant. Id. § 13.01(e). The trial court must grant a motion challenging the adequacy of an expert report only if the report does not represent a gоod faith effort to comply with section 13.01(r)(6)’s definition of an expert report. Id. § 13.01(1). Finally, upon timely motion, the trial court must grant the claimant a 30-day grace period to comply with the statute if the trial court finds that the claimant’s failure to comply was “not intentional or the result of conscious indifference but was the result of аn accident or mistake.” Id. § 13.01(g).
A trial court’s decision to dismiss under section 13.01(e) is reviewed for abuse of discretion.
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
We held in
Palacios
that in order to constitute a good-faith effort under section 13.01(1), an expert report must “discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.”
Limiting our section 13.01(1) adequacy analysis to the four corners of Langley’s two timely-filed expert reports, id. at 878, it is nоtable that one report does not mention Dr. Jernigan at all, and the other report only mentions him in this single sentence: “At 4:30 p.m. [John Langley’s] case was discussed with Dr. Jernigаn and at 4:50 p.m. a lactulose enema was ordered.”
Dr. Jernigan appears in only one fine of one report. This passing reference does not identify with specificity any action or inaction by Dr. Jernigan that breached the applicable standard of care. This perfunctory mention alleges no misconduct whatsoever, much less discusses the required elements with “sufficient specificity” to inform Dr. Jernigan of “the conduct the plaintiff has called into question.” Id. at 875.
As to the standard оf care applicable to Dr. Jernigan, the court of appeals found that the following stand-alone statement in one of the reports capturеd the standard
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of care for each defendant-physician: “surgical consultation should have been obtained once the x-rays demonstrated obstruction.”
Moreover, according to the reports, the x-rays were taken on John Langley’s first visit to Providence Hospital at 6:40 a.m. on October 6, 1996, whereas Dr. Jernigan did not become involved in John’s treatment until the case was “discussed” with him at 4:30 p.m., nearly ten hours later. The expert rеports state that the surgeons were called at 6:40 p.m., but do not assert that Dr. Jernigan personally failed to order a surgical consult prior to that time or that thе roughly two-hour gap between when the surgeons were called and when they arrived at 8:30 p.m. was attributable to Dr. Jernigan.
We agree with the dissent below that Langley’s expert reports faded to comply with section 13.01 because “[e]ven if we assume that the reports address the standard of care with respect to eaсh doctor, ... neither report addresses how
Dr. Jer-nigan
breached the standard or how his unstated breach of duty caused John’s death with sufficient specificity for the trial cоurt, and Jernigan, to determine that the allegations against Jernigan had any merit.”
Because Langley’s expert reports omit at least one of the three specifically enumerated requirements of section 13.01(r)(6), they cannot constitute a good faith effort to meet the statutory requirements.
Palacios,
The trial court did not abuse its discretion in dismissing Langley’s claims against Dr. Jernigan. Accordingly, without hearing oral аrgument, we reverse the court of appeals’ judgment and dismiss with prejudice Langley’s claims against Dr. Jernigan. TEX. R. APP. P. 59.1.
Notes
. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87 (adding expert report requirement, at former TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)), repealed and recodified as amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 884, 898-99 ("House Bill 4”) (adopting chapter 74 of the Texas Civil Practice and Remedies Code, applicable only to actions filed on or after September 1, 2003, and continuing prior law in effect for actions filed before that date) (current version at TEX. CIV. PRAC. & REM CODE § 74.351).