*1 appeals’ judgment reverse the court We for BIC. judgment
and render participate
Justice GREEN did
the decision. SCORESBY, Petitioner,
Tyler M.D., Individually SANTILLAN,
Catarino Santillan,
As Next Friend of Samuel Minor, Respondent.
A
No. 09-0497. of Texas.
Supreme Court
Argued Nov. July
Decided
Rehearing Sept. Denied *3 Smith, Art Reyes,
Eric Rene Jason C.N. Worth, Brender, for Santil- Fort Catarino lan. Yanof, Philipa Remington, ruling9
Michael Alan the court’s concomitant Dallas, Tyler Scoresby, M.D. refusal dismiss the claim before the thirty-day period expired.10 II, Hall,
Randy J.
David Leon Pratt
Worth,
Ducic,
Fort
for Yadranko
M.D.
contemplates
While
Act thus
that a document can be considered an ex
Justice HECHT delivered the
deficiencies,
pert report despite its
the Act
Court,
in which Chief Justice
does not suggest that a document utterly
JEFFERSON,
MEDINA,
Justice
Justice
devoid of substantive content will qualify
GREEN,
WILLETT,
Justice
Justice
expert report.
Based on the Act’s
*4
GUZMAN, and Justice LEHRMANN
purposes,
text and stated
we hold that a
joined.
qualifies
document
if
it
Liability
The Medical
Act1 enti
contains a statement of
by an indi
tles
defendant to dismissal of a health vidual
expertise indicating
with
if,
liability
care
claim within
days
120
of
by
plaintiff
claim asserted
against the
filed,
the date suit was
he is not served
defendant has merit. An individual’s lack
expert report
with an
showing that
of
qualifications
relevant
and an opinion’s
against
claim
him has merit.2 The trial
inadequacies are
plaintiff
deficiencies the
immediately
court’s refusal
to dismiss is
given
should be
an opportunity to cure if it
appealable.3
specific
The Act sets
require
possible
to do so. This lenient standard
ments for an adequate report4 and man
expense
avoids the
delay multiple
and
of
objective good
dates that “an
effort
faith
interlocutory appeals and assures a claim
them,5
comply”
with
[be made]
but it
opportunity
ant a fair
to demonstrate that
give
also authorizes
trial court to
a his claim not
frivolous. The
re
plaintiff
test,
who
the 120-day
port
meets
deadline
before us meets this
and there
thirty days
an additional
which to cure a
fore the trial
allowing thirty
court’s order
“deficiency”
days
in the elements of the report.6
denying
to cure deficiencies and
The trial court should err on the
of
side
defendants’ motions to dismiss were not
granting the
time7
appealable. Accordingly,
additional
and must
we affirm the
grant
it
the deficiencies are curable.8 court of appeals’ judgment dismissing the
jurisdiction.11
The defendant cannot seek review of this
want
"
(Guzman,
(quoting
§§
1. Tex. Civ.
&
74.001-.507.
their claims.’
id. at' 416
Prac.
Rem.Code
J.,
Lehrmann, J.,
provi-
joined by
concurring
All references to the Act are to these
in the
judgment))).
sions.
74.351(b).
§
2.
Id.
J.,
Medina,
(plurality
joined
op.
Id. at 411
C.J.,
Jefferson,
Hecht, J.);
by
and
id. at 416
51.014(a)(9); Badiga
3. Id.
§
Lopez,
v.
274
J.,
Lehrmann, J.,
(Guzman,
joined by
concur-
(Tex.2009).
S.W.3d
685
ring
judgment).
in the
74.35l(r)(6).
§
4. Tex. Civ. Prac. & Rem.Code
(no
51.014(a)(9)
§
9. Tex. Civ. Prac. & Rem.Code
Watkins,
interlocutory appeal);
In re
74.351(Z).
§
5. Id.
(Tex.2009) (orig.proceeding)
(no
mandamus).
by
review
74.351(c).
Matthews,
Wooten,
7. Samlowski v.
Medina, J.,
(Tex.2011) (plurality op.
joined
Jefferson, C.J.,
Hecht, J.) ("
by
‘[T]rial
11.
Smith on
in
appears
hospital
It
he was
the
until
1/17/06
maxillary
neoplasm
2/11/06,
nosis of
sinus
under
that time
and at
was transferred
Ducic, M.D.,
the care of Dr. Yadro
Hospital,
to HealthSouth Rehabilitation
physician,
surgeon,
ENT
and another
2/11/06,
Cityview, admitted on
date of
[sic],
Tyler Scorsby
Dr.
procedures
with
discharge
discharged
He was
2/21/06.
[sic],
mediomaxillectomy
of left
excision
diagnosis
parietal
with the
of left
hemor-
maxilla,
the
calvarial
neoplasm
resection,
rhage, maxillary sinus tumor
growth
bone
and reconstruction of max-
right hemiparesis, persistent pain, apra-
pterygopa-
illa and excision of tumor of
xia,
prophylaxis, peptic
seizure
ulcer
During
proce-
latin
structures.
[sic]
prophylaxis
right hemisensory
and
defi-
dure,
right
an incision was made in the
During
stay
cit.
his
at HealthSouth
in a
parietal region
coronal fashion and
Hospital he
in
areas
progressed
all
pericranium.
carried
As a
down
mobilization and self-care. He was am-
this,
result of
there was cortical lacera-
400',
bulating greater than
but still had
bleeding
tion with active
from several
extremity
significant right upper
weak-
in
medium size vessels
the area.
spasticity.
It was then
ness and
deemed
note,
Scorsby’s
necessary
outpa-
Dr.
to transfer him to an
According to
[sic]
injury program
awoke in the
room
tient brain
and work on
patient
operating
strength, cognition
his
and overall mobi-
complications
without
and was taken to
However,
....
post
anesthesia care unit.
lization
deadline,
He still has
After
120-day
He was seen on
Santillan
8/3/07.
Physicians
served the
with
right
leg.
arm and
Marable’s cur-
weakness
his
riculum
report,
vitae and his amended
problem....
be a
Walking seems to still
which he
applicable
added that “the
stan-
having
He is still
headaches
the occi-
dard of care would have been to perform
pital region.
the procedure of a calvaria bone transplant
Marable’s letter concluded:
without
or
nicking
lacerating
parietal
neurologist, my
As a Board-Certified
get
cortex
the appropriate
[and]
sur-
is that Dr. Ducic violated the
geon, such as a neurosurgeon, instead of
Scorsby
standards of
as well as Dr.
an ENT physician to do a calvaria bone
[sic],
and as a result his
are
grafting procedure”, and that “Dr. Ducic
right-sided hemiparesis
that of a
and Dr.
...
Scorsby
perform
failed to
[sic]
possibility of seizure foci
the future.
a- careful
well-planned surgery,
and
caus-
seizures,
Although
he has not had
ing a laceration of the cortical hemisphere,
certainly
he
does meet the criteria for a
causing
bleeding”.
substantial
At
seizure
Had it not been for
disorder.
hearing
Physicians’
objections
Scorsby’s
Dr.
negli-
Ducic
[sic]
motions, the trial court refused to consider
gent activity
causing
cortical lacera-
Marable’s post-deadline
report.
amended
lobe,
patient’s
parietal
tion of this
left
he
Physicians complained
that Marable’s
hospital-
would not have needed further
original letter did not show that he had
ization at John
Smith or the
Peter
ICU
qualifications
sufficient
experience
Rehab,
therapy,
going
to HealthSouth
*6
opinion regarding
surgery,
render an
the
right hemiparesis
and is now left with a
care,
and did not define the
standard
young age.
at a
breached,
state how it was
or explain how
Physicians
timely objected
The
each
in
injuries.
breach resulted
Samuel’s
inadequate
that the letter was
as an expert The Physicians acknowledged that Samuel
(i)
report, asserting
neurologist
that:
artery
argued
suffered a lacerated
but
qualified
testify regarding
not
to
the stan-
things
surgery,
such
are inevitable in
no
surgeon
dard of care for an ENT
in per-
carefully
performed,
matter how
it is
and
forming
procedures
Physicians
necessarily
the
the
do
indicate a breach of the
(ii)
Samuel;
The
standard of care.
trial court denied
performed
opin-
Marable’s
granted
the motions to dismiss and
Santil-
regarding
Physicians’
ions
the
standard of
thirty-day
lan a
extension to cure deficien-
breach,
relationship
and causal
to
report.
cies in the
injuries
conclusory
Samuel’s
were
and di-
Scoresby
collectively
rected to
and Ducic
Physicians appealed, persisting
The
(iii)
individually;
rather
than
and
Mara-
their contention that Marable’s letter was
included,
ble’s curriculum vitae was not
as
re
inadequate
qualify
too
to
as an
Physicians argued
requires.12
the Act
therefore,
met the
port;
Santillan had not
deficient,
woefully
Marable’s letter was so
deadline;
120-day
consequently,
the
qualify
expert report
it did not even
permit
thirty
Act did not
an additional
120-day
the Act meet
under
dead-
days to
the deficiencies but instead
cure
They
line.
moved the court to dismiss the
required that the case be dismissed.13 The
prejudice
analysis
case with
and award them their
court
construed our
attorney
to mean that defi
reasonable
fees and costs.
v. Matthews14
74.351(a).
12. Tex. Civ. Prac. &
14.
ciencies in a document
tendered as
stated, was to
pressly
from
preclude
will not
it
The court concluded
qualifying
severity
as such.15
frequency and
reduce excessive
interlocutory
elaims[,]
in these cir
appeal
liability
that an
... de-
of health care
elaims[,] ...
permitted.16
cumstances was not
do
crease the cost
those
unduly
in a manner that will not
so
granted
Physicians’ petitions
for
We
rights any
claimant’s
more
restrict a
review.17
crisis[,
necessary to deal with the
than
pending,
this
has been
While
... make affordable medi-
thereby]
Physicians
lodged essentially
have
cal and health care more accessible
objections to Santillan’s amended re-
same
to the
of Texas....
available
citizens
they
original report.
made to the
port as
the MLI-
Legislature replaced
dismissal,
They
again
have also moved
Act,
Liability
repeat-
IA
the Medical
fees,
The trial court
attorney
and costs.
ing
findings
and statements of
its
objections
has not ruled on those
and mo-
purpose.23
tions.
Fundamentally,
goal
Act
Liability
MLIIA and the Medical
II
been to make health care in Texas more
Li-
Legislature
enacted Medical
expensive by reducing
available and less
Improvement Act
ability and Insurance
liability claims. To
the cost of health care
(“MLIIA”)
response
in 197718 in
to “a
end,
sought
have
both statutes
in the
malpractice
medical
insurance crisis
by requiring
lawsuits
deter
frivolous
having
of Texas” that
“a materi-
State
early
litigation
produce
claimant
delivery
al adverse effect on the
of medical
of a suitable
that his claim
Texas,
including signifi-
and health care
“[E]liciting
expert’s opin
has merit.
availability
cant reductions of
of medical
early
litigation
ions
in the
obvious
[is]
people
and health care services to the
*7
attempting
in
to
friv
place to start
reduce
of further
Texas and
likelihood
reduc-
thereby
and
reduce the
olous lawsuits”24
Legislature
in the future”.19 The
tions
costs of claims.
by
found that the crisis had been created
expert
Legislature
increase in the volume
first added an
“inordinate[ ]”
1993,
expense
liability report requirement
and
of health care
to the MLIIA
it over the next
ten
strengthened
claims.20 Concerned that “the direct cost
then
patient
years,
finally allowing interlocutory ap-
care to the
and
of
public
medical
increased”,21
uniform enforcement.
materially
peals
Texas
the
to ensure
We
ha[d]
Act,
1.02(a)(5)-(6).
§
15.
A faith comply32 effort” to could result The 1993 amendment to the MLIIA re- prejudice liability dismissal with for quired plaintiff, ninety days within attorney fees as well as costs.33 But if the suit, filing comp either to file an affidavit that he failure —even missing the deadline expert’s opinion had obtained a suitable letely34 “not intentional or the re —was $2,000 that claim merit or to post his had sult of conscious indifference but was the or cash The trial deposit.25 bond court mistake,” result of an accident or the trial for up ninety could extend deadline to required grant court was grace peri “a “for A days good plaintiff cause shown”.26 od of days permit the claimant to comply who failed to risked dismissal with- comply”.35 costs, prejudice liability again, out for Act, Liability Medical adopted ... except “good cause shown”.27 effect, and now eliminates the Legislature required alternative, bond/deposit shortens itself be filed and raised expert deadline for the report and curricu- deposit the amount of the bond or posted (unless lum days vitae to 120 extended $5,000.28 in lieu of a The amend- agreement), requires service rather ment retained the initial ninety-day dead- filing.36 than The Act retains the defini- line but added even a bond or expert tion of an report37 but is more deposit posted, expert were report and specific expert’s qualifications.38 about an curriculum vitae must be filed within 180 distinguishes The Act now between days of initiating suit.29 The amendment missing altogether a deadline and serving specified the qualifications 74.351(b) an inadequate report. Section required to have30 and defined the report provides that “providing] summary as one a fair [i]f, ..., ... as to a defendant expert’s opinions regarding applicable [by standards of the manner in which the has not been served the dead- line], court, care rendered or health motion of the 25, 1993, R.S., Act, 4590i, 13.01(7). May Leg., § 25. Act of 73rd ch. 32. 1995 former art. 2347, 2347, 1993 Tex. Gen. Laws *8 4590i, formerly Tex.Rev.Civ. Stat. Ann. art. Act, 4590i, 13.01(e). § 33. 1995 former art. (a) (b) Act], § 13.01 1993 [hereinafter — 610, Offenbach, 34. Stockton v. Act, 4590i, 13.01(d). § 26. 1993 former art. (Tex.2011) ("Under 4590i, plain- 616 article extension, tiff could an obtain even when no Act, 4590i, 13.01(c). § 27. 1993 former art. deadline, provided by the if the p p¿ n -UI plaintiff could show an ‘accident or mistake’ 4s* t-<a> (rq cn m \£>vo C/D OJ3 OO § Ln H a> X ' o r < w failing timely report.”). » to furnish a OOsO ON - 4590i, 28 formerly Tex.Rev.Civ. Stat. Ann. art. 13.01(a) Act], § Act, 4590i, 1995 [hereinafter 13.01(g). § 35. art. 1995 former Act, 4590i, 13.01(d). § 29. 1995 former art. 74.351(a). § 36. Tex. Civ. Prac. & Rem.Code Act, 4590i, 13.01(r)(5) §§ 30. 1995 former art. l(r)(6). § 37. Id. 74.35 & 14.01. Act, 4590i, (r)(6). 74.35l(r)(5), § §§
31. 1995 former art. 13.01 38. Id. 74.401-.403.
554
[defendant], shall, subject purpose report requirement expert to Subsection of the claims,43 (c), that: not to dispose enter an order is to deter frivolous of claims of their merits. (1) regardless “The reasonable defendant] awards [the ...; Legislature failing determined that costs has attorney’s fees and of court timely report, or expert filing file an and good-faith evidence a that does not (2) the claim respect with dismisses effort to with the definition of an comply prejudice to the the [defendant] that report, means claim is the claim.39 refiling of frivolous, either or at best has been 74.351(0, the same conse- Under section brought prematurely.”44 But the Legisla- quences serving inadequate an re- attend recognized ture has an likewise when objective port represent that “does not an thirty days, can be cured in good comply faith effort” to with the Act’s It the claim is not frivolous. must be But before those conse- requirements.40 “ are ‘[t]here remembered that constitu- quences imposed, provides are Act tional upon power limitations courts deficiencies opportunity for to be cured. ... to dismiss an action without 74.351(a) affording requires any objec- Section party for a opportunity hearing sufficiency of a lodged tion to the be ”,45 and limi- merits of his cause’ those service,41 twenty-one days of within no 74.351(c) Legislature tations constrain the less in provides: section requiring dismissal. expert report If not been served [by the because elements of deadline] reasons, For these we have held that deficient, are found the court trial in granting courts be lenient should may grant 30-day one extension to the thirty-day extensions and must do so if cure claimant order to the deficien- in an deficiencies can be cy.” thirty-day period. cured within the This “minimal delay report’s before a sufficien-
The Act’s thirty-day extension
may
cy
challenged
be
again
the case
replaces
to cure deficiencies
the 1995 law’s
dismissed, if warranted”46 does not impair
thirty-day “grace period” for
“accident
mistake”,
purpose
Act.
the focus
shifting
from the claim
report’s
ant’s conduct to the
contents. But
B
appropriate
importance
delay
MLIIA, there was no
finally dismissing a claim for
of an
Under the
inter-
want
adequate report
locutory
is undiminished. The
from the denial of a
motion
209-210,
1087,
74.351(b).
§
Id.
78 S.Ct.
L.Ed.2d 1255
(1958), citing
Packing Co.
Hammond
v. Arkan
74.351(1)
§
Id.
sas,
350-351,
212 U.S.
29 S.Ct.
Elliott,
(1909),
Hovey
L.Ed.
74.351(a).
(1897);
U.S.
17 S.Ct.
51. Id. con- statutory comings, “implicated Ogletree’s definition.57 As we have ex- it duct”, so that the trial court was author-
plained:
extension,
grant
thirty-day
ized
setting
expert’s opinions
out the
prohibited.66
was
elements,
report
each of those
must
information to fulfill two
provide enough
Ogletree’s holding,
though
good-
if it
purposes
constitute
sound,
only so far. To
can be extended
First,
faith effort.
in-
report must
meaning
stretch the
of deficient
include
specific
form the defendant of the
con-
words, “ex
paper
a sheet of
with the two
plaintiff
ques-
duct the
has called into
written on it would mock the
pert report”,
Second,
equally important,
tion.
Act’s
requirements.
report
provide
must
a basis for the
substantively
was
no more than
Lewis
trial
to.
the claims
court
conclude
thank-you letter to
physician’s
that —one
have merit.58
referring
patient.67
another for
In de
particular
formality60
No
words59 or
are
line,
termining where to draw the
we are
required, but bare conclusions will not suf- guided by
One is that
two considerations.
report
fice.61 The
must address all the
principal purpose
the Act’s
is to reduce the
elements,62
may
sup-
and omissions
be
expense
liability
of health care
claims.
plied
inference.63
Legislature
reasonably
could
have de
purpose
termined that that
is served
seen,
But we have
as
Act al
interlocutory appeal from the denial of a
thirty-day period
lows a claimant a
to cure
motion to dismiss for want of an adequate
finally
before the trial court
deficiencies
expert report,
Ogle-
but as we observed
report
inadequate
determines that the
tree,
such
permitting
two
be
Ogle-
and the claim must be dismissed. In
—one
tree,
thirty-day
rejected
argument
period
we
that a
fore the
cure
and one
defi
There,
report.64
simply
cient
is no
after —is
wasteful. The other con
provided the
goal
claimant
radiolo
sideration is the
of the Act’s
vitae,
gist,
requirement:
without a curriculum
on a urolo
to deter
frivolous
gist’s
Dr. Ogletree
inadequate expert report
standard of care.65
ar
claims. An
does
gued
really
report’s
that the
no
not indicate a
claim if the
frivolous
all,
despite
readily
at
but we held that
its short-
deficiencies are
curable.
74.351(1).
(“Nor
purposes
57. Id.
62.
Id.
can a
meet these
good-faith
it
and thus constitute a
effort if
Tex.,
58.
Transitional Care
Am.
Ctrs.
Inc. v.
statutory requirements.”).
omits
Palacios,
(Tex.2001).
46 S.W.3d
Hosp.,
63. See Bowie Mem’l
ble was not Physicians’ trial court denied the motions Physicians’ about the conduct because he that Santillan have to dismiss and ordered only surgeon, not a neurologist, thirty-day extension to cure deficiencies therefore his letter is so deficient it does report nearly years in Dr. Marable’s three qualify expert report. The Act already ago. Santillan had served an knowledge, that Dr. requires Marable’s report, response to which the amended training experience, practice be objections Physicians “relevant” to Santillan’s claim.68 We ex- had filed renewed 68. See Id. Tex. Civ. Prac. & Rem.Code 74.35l(r)(5), 74.401(a), (c). § § at-. Post
558 and I am confi- ly squarely presented, the case. it is moved to dismiss again brighten will the line appeal today’s have dismissed this dent decision Now that we (where trial court will cases an deficient-report between jurisdiction, for want of to the amended re- objections discretionary) no-report rule extension is (where to dismiss. Whatev- mandatory). and the motions port cases dismissal undoubt- appeal another will ruling, er the today all but holding Our will edly follow. 2007,22008,3 In a trio of concurrences first, appeal. Just eliminate the wasteful 2009,4 ques- nagging I focused on this that a help it will importantly, as .assure between legal tion: Is there a difference claimant, being apprised of a defen- after filing something that filing nothing and expert report, and objections to an dant’s is, filing can a nothing? amounts to That those opportunity to discuss having had lacking required in the statu- utterly be so the trial hearing at a before objections all, at as to be no tory elements court, to cure opportunity have a fair will join today’s I requiring thus dismissal? that his and demonstrate deficiencies decision, my con- which I read to confirm deter- not frivolous and should be claim is document bears sistently stated view: If a the merits.
mined on
envi-
zero resemblance to what the statute
it
as-
point,
to the
never
sions—more
of the court
Accordingly,
judgment
anything wrong
did
anyone
serts that
—it
for want
dismissing
this
cannot receive
extension.
jurisdiction
Matthews,
In
I described
Affirmed.
naively hoped
I
would be “a rare bird
what
plaintiff pass
legal practice”5
Texas
—a
concurring
Justice WILLETT filed
ing
off as a bona fide
document so
opinion.
that,
chari
facially absurd
“no matter how
dissenting
filed a
Justice JOHNSON
viewed,
tably
simply
it
cannot be deemed
in which Justice WAINWRIGHT
opinion,
all,
report’ at
even a deficient
‘expert
joined.
deficient-or-no-report
issue
one.”6
I
present
Ogletree,
but
noticed
WILLETT, concurring.
Justice
case, Lewis v.
then-pending
it in another
2006
have circled an issue both
Since
we
Funderburk,
Ogletr
filed one week before
any docu-
recurring and elusive: whether
ee.7
ment,
anyone
even one that never accuses
Funderburk,
confronted
the Court
to war-
committing malpractice, suffices
bird,
of this rare
sighting
“an actual
thirty-day extension
rant an unreviewable
extinction,
74.351(c).1
species
my
that in
view merits
today, the
under Section
Until
(and
“report”
Fun-
not conservation.”8
frustratingly)
procedurally
issue was
thank-you letter from one
Final-
derburk was a
unreachable and thus unresolvable.
(Willett, J.,
concurring).
74.351(c).
5.
3. Lewis v.
J.,
concurring).
(Tex.2008) (Willett,
concurring).
Watkins,
(Tex.
In re
J.,
2009) (Willett,
concurring).
*13
ry-dismissal provision14
letter that never once
alternatively,
doctor to another —a
—or
manner, way, shape,
express adoption
or form ac-
this Court’s
of a
any
graee-
period
This
test that is indeed
anyone
malpractice.9
gracious,
cused
allow-
ing
thanks-for-your-referral
everything.
letter was no
extensions for most
medical-expert report “than a doc-
more a
admittedly
Under the Court’s
“lenient
or
card
tor-signed prescription
Christmas
standard,”15 the document must merely
be,” wrote,
“If
adding,
report
would
I
a
is
a statement
opinion by
“[contain]
missed,
amiss,
are
just
not
courts
remiss
expertise
individual with
indicating that
10 Alas,
they do not dismiss.”
the defen-
the claim asserted
the plaintiff against
issue,
report”
the “no
dant did
raise
the defendant has merit.”16 The line is
foreclosing
challenge.11
thus
a merits-based
forgiving
bright:
“report”
but
must
Watkins,
Finally
actually
came In re
where a
allege someone committed mal-
narrative
plaintiff merely
practice.
genesis
filed a
of treat-
of this elemental
ment, something
every
requirement
that omitted
statu-
found in Ogletree,
where
torily required
appar-
element and had no
first
purport-
Court
indicated that the
relationship
medical-malpractice
report
implicate provider’s
ent
to a
ed
must
con-
Funderburk,
however,
Like
this
also duct.17 It
emphasis,
case.12
case
merits
standard,
is,
procedural
kept
today’s
had a
wrinkle that
benevolent as it
is not
marquee
report”
report”
by any
piece
“no
vs. “deficient
satisfied
medical-related
paper;
out of reach.13 But the rare-bird
the bar
low
issue
but not subterrane-
noticed,
I
an. For
sightings,
becoming
example,
“report”
were
more
Funder-
commonplace.
they
proliferate
surely
today’s
And
would
burk would
fail even
lax
docket,
predicted,
appel-
thank-you
on our
I
absent
test. The
letter in that case
malpractice by anyone,
late enforcement of the statute’s mandato-
never mentioned
reproduced
entirety
unnecessary.
report
merely
9. The letter is
in its
mus is
If the
was
deficient,
Gray’s
interlocutory appeal
in the court of
then an
was
Chief Justice
dissent
Funderburk,
prohibited,
granting
appeals.
See Lewis v.
to review
mandamus
2006)
Legislature's
(Tex.App.-Waco
it would
limit on
S.W.3d
762-63
subvert
C.J.,
rev’d,
review.”) (citations omitted).
(Gray,
dissenting),
relationship malpractice to a period not been served within the defendant, much *14 mention of a claim or no court, (a), by specified Subsection with, exper- “an less a claim that individual physician the motion of the affected 18 merit.” indicates “has tise” shall, subject to provider, health care (c), enter an order that:
Subsection understanding of the my Based on (1) physician the affected awards to requiring “minimal Court’s standard”19 — provider reasonable at- or health care express an expertise with someone torney’s of court in- fees and costs has a meritorious plaintiff that the opinion by or health care physician curred against claim defendant —I malpractice provider; and join the decision. Court’s (2) to respect dismisses the claim with provider, or health care JOHNSON, by joined Justice Justice refiling to the of the prejudice WAINWRIGHT, dissenting. claim. who time- says plaintiff that a Court (c) expert report If an has not been report eligible is ly files a defective period specified by within the served report time to cure the for an extension of Subsection if (a) are because elements of the report] contains a statement [the deficient, may grant the court one found opinion by expertise an individual with 30-day extension to the claimant or- claim asserted indicating that the deficiency. der to cure the has merit. plaintiff against the defendant qualifica- An individual’s lack of relevant 74.351(b), Tex. Prac. & Civ. Rem.Code are opinion’s inadequacies tions and an Watkins, (c);1 see In re S.W.3d given should be plaintiff deficiencies the (Tex.2009) (Johnson, J., concurring) 634-35 to opportunity possible an to cure it is (“The expert report] requires definition [of do so. qualify as a statuto- that for document my In view the ry expert report, it must demonstrate conform to re- (1) standard does not Court’s with relevant things: three someone quirements Legislature imposed (‘ au- expertise “[e]xpert report” means a writ- an extension to cure a deficient thorizing (2) an report by expert’), opin- ten report. respectfully I dissent. (‘that summary provides ion fair (3) opinions'), and that the defen- expert’s statutorily court authorized to
A trial
failing
appli-
was at fault for
to meet
of an dant
grant an extension to cure elements
thereby
deficient,
cable standards of care
not
expert report that are found
Absent an ex-
substantively
plaintiff....”).
not a harmed the
to cure a
I
pert
expertise,
which
with relevant
do
see
report,
nor to cure a
from
re
19. Id. at 557.
18.
ion those stan- surgical qualifications. his The dards of medical care. give any does not facts or information 74.401(a). Id. The Court has said that qualify which him opine would on the report by an unqualified “[a] will type surgery standards of care for the of (though always) sometimes not reflect a case, performed this and he did not good-faith justify effort sufficient to a 30- Buster, report.2 attach a CV to the The day extension.” In re (Tex.2008) curiam) showing was written on a letterhead (per (citing Brandal, Leland v. 208 he maintains board certification neurolo- report by 2. An amended Dr. Marable with a it did not show that Dr. Marable had day CV attached was filed on the the defen- training expertise type surgery in the of dants’ motions to dismiss were heard. The involved here. court, CV was not considered the trial but filed because the expert report had been In his he makes gy psychiatry. not basing opinion radiologist his on his who was that he is was it clear surgery: “As a neurology, not on the stan- expertise qualified express neurologist, my opinion board certified urologist. for a dard care violated the standards that Dr. Ducic urologist defen- Scoresby, and as a as well as a urethral catheteriza- performed dant had are that of a [Santillan’s] result patient suffered during tion which possibility right-sided hemiparesis Id. at bruising perforation. and bladder neurologi- foci in the future.” seizure radiologist’s report that the 317. We held on which Dr. Marable relies expertise cal deficient, Id. at 320. But was not absent. surgery. involve See Wilson does not radiologist opining was Simplified Stegeman, TeRms Medioal have urologist whether the should about (1976) neurologists per- do not (noting under flou- performed the catheterization Academy American surgery); form in order to avoid or roscopic guidance Doctor, Neurology, Working with Your timely diagnose perforation. more https://patients.aan.com/go/workingwith instance, radiologist In that at 318. 2011) (last yourdoctor Apr. visited urologist opining about whether perform surgery.”). (“Neurologists do *16 radiology-related de- should have involved claim that report Dr. Marable’s does not (the in techniques specialty vices past per- in the performs he now or has treating in expert qualified) which the particular much less this surgery, formed and whether the failure to do patient the neither type surgery. report of The The matter before injury. so resulted in knowledge that he has of the stan- claims Ogletree from because there us is different performing surgery the dard of care connection apparent closely is no related the of qualified nor that he is on basis spe- in expertise the involved the between experience expert to offer an training or in- cialty neurology expertise and the of of care. See opinion on those standards knowing perform, how to volved (3). 74.401(a)(2), & Tex. Civ. PRAC. Rem.Code by performing, surgery performed the say partic- not that he has report does Scoresby Drs. and Ducic. in, observed, ipated or even read about Center, In Medical McAllen of left mediomaxil- “procedures how to do validity of a doc- we considered the lectomy, neoplasm excision of of the maxil- negligent creden- expert reports tor’s la, growth calvarial bone and reconstruc- medical center. tialing against suits the of of tion of maxilla and excision tumor challenged adequacy McAllen the structures,” the pterygopalatin which were the that the doctor was reports on basis by surgical procedures performed Drs. short, opinions as to the nothing qualified express In in not Scoresby and Ducic.3 an inference Id. at 462. credentialing process. Dr. Marable’s raises We expert type as to this qualified that he is a McAllen and held that the agreed with statute, surgery, prescribed by as reports inadequate: were the is all that was before the trial record, not plaintiffs On have this regard qualifications. to his court qualifications. Dr. Brown’s established Matthews, hospital of care for a “The standard v. we considered hospital statutory ordinarily prudent no what an a defendant’s contention that type surgery of this attorney represented during Marable that he had seen 3. Santillan’s oral they patients after had because he had treated argument that he believed Dr. Marable's surgery. Dr. amended contained statements or cir- care negligent having would do under the same similar and those activities Nothing in the record cumstances.” caused support were sufficient to qualified how Dr. Brown is here shows an extension of time. But the report sets can to address this standard. Nor we neurologist, out his as a not a have may knowledge infer that she some surgical expertise. in the expertise or that is included Legislature did not intend that an record. could be a doctor with no dem-
Moreover, negligent credentialing “a onstrated or inferable experience and specialized claim involves a standard training practice in a area who reads medi- industry care” and “the health care cal report containing records and writes a developed guidelines govern various simplistic indictments credentialing process.” Dr. hospital’s negligently here: the defendants lacerated contain no reference to reports Brown’s surgery brain and further was re- any or indication guidelines, those quired. See Tex. Civ. Prac. & Rem.Code training, special knowledge, that she has 74.401(a). experience regarding process. this “ says The Court ‘there are consti qualified merely Nor was Brown upon power tutional limitations physician; “given because she is a ... courts to dismiss an action without increasingly specialized and technical affording party opportunity for a medicine, validity, there no nature of ” hearing on the merits of his cause.’ was, if there ever to the notion that S.W.3d at 554 (quoting TransAmerican every licensed medical doctor should be Powell, Natural Corp. Gas automatically qualified testify (Tex.1991)). I agree. But the every question,” medical *17 all, statement does not fit here. First of (citations omitted). Id. at 463 the constitutionality of the statute is not before, The substance of the issue us is Second, were, challenged. if it even similar to the issue we decided in McAllen statutory requirement timely of a Medical Marable’s in- Center. Dr. qualified expert spring upon a did not dicates that the defendants stan- violated warning. require Santillan without surgery of care for the and their dards in place surgery ment was before the took negligent activity caused to San- place January while suit was not tillan. But Dr. Marable’s does not against filed the defendant doctors and qualified show he was under statute to County January Tarrant until Hospital give expert opinion, such an nor did his had time find a quali 2008. Santillan opinion surgeons’ about the decisions and provide report required fied during surgery special- actions involve his merit, to show claim if he could his had ty except to the extent a with his expert. find such an specialty post- would have been involved surgical possibly care a decision to timely I would hold that failure to serve reoperate. a expert qualified under the merely deficiency statute is not ih an
If Dr. Marable’s had in some deficiency it report, element of quali- manner demonstrated that he was question to the the re- going whether fied to render an about the stan- competent entitled to be involved, port and is surgery dard of care for the then given any weight. And I would hold that might conclusory I agree that his state- filing it is not an having negli- ments about the defendants gently applicable report supports violated standards of such a inferences that a expert was report by qualified
proper merit, available, the claim lacks be dismissed.
the claim should judgment
I would reverse the case. See
court of and dismiss 684-85
Badiga Lopez, parte
Ex Tenika BROOKS.
No. 12-06-00378-CR. Texas, Appeals
Court of
Tyler.
June
Discretionary Review Granted
Oct.