Jason Maris, P.A.-C v. Tadd Hendricks, as Independent of the Estate of Melissa Hendricks, and Tadd Hendricks, Individually and as Next Friend of Joshua and Daniel Hendricks, Minors, and Charlie Morello
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-300-CV
JASON MARIS, P.A.-C APPELLANT
V.
TADD HENDRICKS, AS APPELLEES
INDEPENDENT EXECUTOR OF THE
ESTATE OF MELISSA HENDRICKS,
DECEASED, AND TADD HENDRICKS,
INDIVIDUALLY AND AS NEXT
FRIEND OF JOSHUA AND DANIEL
HENDRICKS, MINORS, AND
CHARLIE MORELLO
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FROM PROBATE COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
In this accelerated, interlocutory appeal, Appellant Jason Maris, P.A.-C
appeals the trial court’s order denying his motion to dismiss the health care
liability claims of Appellees Tadd Hendricks, as independent executor of the
estate of Melissa Hendricks, deceased, and Tadd Hendricks, individually and as
next friend of Joshua and Daniel Hendricks, minors, and Charlie Morello. See
T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(9) (Vernon Supp. 2007). In a single
issue, Maris argues that the trial court erred by not dismissing Appellees’ claims
because Appellees failed to serve him with an expert report complying with the
requirements of section 74.351 of the civil practice and remedies code. See
id. § 74.351(a), (b), (r)(6) (Vernon Supp. 2007). We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Appellees filed their original petition on October 12, 2004, alleging a
health care liability claim against Maris, a physician’s assistant who worked for
Highland Family Medical Center.1 Appellees averred that Maris had removed a
lesion from Melissa Hendricks’s scalp in October 2002 but failed to send it off
for appropriate pathological analysis, “thereby eliminating any opportunity for
[Melissa] to be properly diagnosed and treated for a malignant condition.”
Melissa sought treatment for a similar mass that developed on her scalp about
a year later, which was removed by a different physician, sent to a pathology
lab, and determined to be “malignant and significantly progressed.” Melissa
1
… Appellees also asserted claims against Stephen A. Glaser, D.O. and
Highland Family Medical Center, who are not part of this appeal.
2
subsequently underwent “extensive radical treatment,” but she died in
December 2004.
The parties filed multiple expert reports and motions to dismiss.
Appellees first attached the expert report of Rhett K. Fredric, M.D. to their
original petition. The report did not mention Maris by name, but it set forth in
part a chronology of events as evidenced by Melissa’s medical records, the
standard of care applicable to the procedure, how the standard of care had
been breached, and a statement of causation.
On November 21, 2005, Maris filed his first motion to dismiss challenging
the adequacy of Dr. Fredric’s expert report. See id. § 74.351(l). Maris
contended that the report did not name him and that Dr. Fredric testified in his
deposition on November 15, 2005, “that he is not qualified to offer any
opinions about physician assistants as he never worked with one and does not
know the law.” On January 13, 2006, Maris filed a supplemental motion to
dismiss with attached excerpts of Dr. Fredric’s deposition. Appellees responded
that Maris had waived any objections to Dr. Fredric’s report for failing to object
“not later than the 21 st day after the date it was served” and, alternatively,
requested a thirty-day extension pursuant to section 74.351(c) to cure any
deficiency. See id. § 74.351(c).
3
The trial court conducted a hearing on Maris’s first motion to dismiss on
January 18, 2006, and found that Dr. Fredric’s report was “insufficient as to”
Maris but granted Appellees a thirty-day extension to cure the deficiency. On
February 16, 2006, Appellees filed another expert report signed by Dr. Fredric
that named Maris. Maris conceded during argument in an August 13, 2007
hearing that “Dr. Fredric’s affidavit was corrected and fixed by then naming my
client as - - by name. . . . He was named in that correcting affidavit . . . .”
Included with Appellees’ second supplemental response to a request for
disclosure and designation of experts, which was filed on January 17, 2006,
was an expert report from Sunti Srivathanakul, M.D. Dr. Srivathanakul reached
the same conclusions as Dr. Fredric regarding the applicable standard of care,
the manner in which the care provided by Maris failed to meet that standard,
and the causal relationship between that failure and Melissa’s death. However,
Dr. Srivathanakul “imploded” during his deposition on October 30, 2006,
resulting in Appellees’ de-designating him as a testifying expert shortly
thereafter.
At some point between December 1, 2006 and August 13, 2007, the
trial court “ruled that Dr. Fredric could not testify against Maris due to his lack
4
of qualifications.” 2 Thereafter, on March 23, 2007, the trial court signed an
order granting Appellees’ motion for leave to designate new experts. Appellees
filed the expert reports of Terrence Lee Moore, M.D. and Dennis Delasi, P.A.
On May 29, 2007, Maris filed his second section 74.351 motion to dismiss,
arguing in part that the new expert reports of Dr. Moore and physician’s
assistant Delasi were untimely and should be dismissed because they were filed
after the expiration of the section 74.351(a) 120-day deadline, which section
74.351(a) prohibits. See id. § 74.351(a); see also Danos v. Rittger, No. 01-06-
00350-CV, 2007 WL 625816, at *3–4 (Tex. App.—Houston [1st Dist.] Mar.
1, 2007), rev’d, 2008 WL 1172183 (Tex. 2008).
On August 13, 2007, at the hearing on Maris’s second motion to dismiss,
Maris argued that Appellees’ claims against him should be dismissed because
(1) “now that Dr. Fredric has been stricken from this matter, his report
obviously does not meet the standard under 74.351,” (2) Appellees de-
designated Dr. Srivathanakul as an expert witness, “[s]o therefore, the
standard-of-care requirements as an opinion regarding [Maris] have not been
2
… The record does not contain an order striking Dr. Fredric as an expert
witness. Maris did, however, file a motion to strike Dr. Fredric on December
1, 2006, and Maris’s counsel stated at an August 13, 2007 hearing that the
trial court had struck Dr. Fredric as an expert, prohibiting him from “testifying
as to standard of care or breach of duty of care as to [Maris].”
5
met timely by the plaintiffs,” and (3) the new expert reports were untimely
under Danos.3 The trial court denied Maris’s motion to dismiss. It is from this
interlocutory order that Maris appeals.
III. S ECTION 74.351 E XPERT R EPORTS
Like his arguments at the August 13, 2007 hearing, Maris contends that
the trial court erred by not granting his motion to dismiss because (1)
“Appellees served only one report inside the 120-day deadline that failed to
mention Maris and that was from an expert who was unqualified to testify
about the standard of care for a physician’s assistant,” (2) Appellees “filed a
second report outside the [120-day] deadline by an expert who also was
unqualified to offer the opinions regarding the standard of care applicable to”
Maris, and (3) “Appellees’ attempt to escape dismissal by serving the reports
of two new experts more than two years past the deadline is not authorized
. . . .” Maris thus argues that Appellees failed to serve an expert report
because the only reports served were not “expert reports” as defined by section
74.351(r)(6). Appellees respond in part that Maris waived any objections to the
sufficiency of the report by failing to timely assert an objection. We agree with
Appellees.
3
… See Danos, 2007 WL 625816, at *3–4.
6
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss under section
74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001). A trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner or without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
B. Section 74.351 Requirements and Standards 4
Civil practice and remedies code section 74.351 provides that, within 120
days of filing suit, a plaintiff must serve expert reports for each physician or
4
… The legislature amended section 74.351 in 2005, and the 2005
changes apply as follows:
only to a cause of action that accrues on or after the effective date
of this Act [September 1, 2005]. An action that accrued before
the effective date of this Act is governed by the law applicable to
the action immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 2, 2005 Tex. Gen. Laws
1590, 1590 (codified at T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351 (Vernon
2005)). Because Appellees’ cause of action accrued before the effective date
of the current version of section 74.351, the former version of section 74.351
that was effective for claims filed on or after September 1, 2003 applies, and
all references to section 74.351 herein are to that version of section 74.351.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen.
Laws 847, 875 (amended 2005) (current version at T EX. C IV. P RAC. & R EM. C ODE
A NN. § 74.351 (Vernon Supp. 2007)).
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health care provider against whom a liability claim is asserted. T EX. C IV. P RAC.
& R EM. C ODE A NN. § 74.351(a). An “expert report” is a written report by an
expert that provides a fair summary of the expert’s opinions regarding the
“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 failure and the injury, harm, or damages claimed.”
Id. § 74.351(r)(6). “Each defendant physician or health care provider whose
conduct is implicated in a report must file and serve any objection to the
sufficiency of the report not later than the 21st day after the date it was
served, failing which all objections are waived.” Id. § 74.351(a) (emphasis
added). “If an expert report has not been served within [120 days] because
elements of the report are found deficient, the court may grant one 30-day
extension to the claimant in order to cure the deficiency.” Id. § 74.351(c)
(emphasis added). If, on the other hand, a plaintiff does not serve a timely
expert report, the trial court, on the motion of the affected physician or health
care provider, shall, subject to section 74.351(c), enter an order dismissing the
case with prejudice. Id. § 74.351(b).
As stressed by the italicized portions of the statute above, there is a
distinction between an absent report and a report that is timely but deficient,
which consequently affects the applicability of the twenty-one day waiver
8
provision in section 74.351(a). See Ogletree v. Matthews, No. 06-0502, 2007
WL 4216606, at *3 (Tex. Nov. 30, 2007) (“[A] deficient report differs from an
absent report.”). When a report is not served within 120 days after suit is filed,
the defendant may file a motion to dismiss the case, and the trial court has no
discretion but to dismiss the case. See T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 74.351(b); Nexion Health at Oak Manor, Inc. v. Brewer, 243 S.W.3d 848,
851 (Tex. App.—Tyler 2008, no pet.). Section 74.351(b) does not contain a
deadline by which a defendant physician or health care provider must complain
about the absent report. Poland v. Grigore, 01-07-00197-CV, 2008 WL
340447, at *9 (Tex. App.—Houston [1st Dist.] Feb. 1, 2008, no pet.).
Consequently, section 74.351(a)’s twenty-one day objection deadline does not
apply to an objection to an expert report based on belated service. See id.
Conversely, if a report has been timely served but does not meet the
statutory definition of an “expert report” because the report has one or more
deficiencies in its contents, the trial court may grant one thirty-day extension
to cure the deficiencies; thus, unlike section 74.351(b), dismissal following a
defendant’s motion complaining of a deficient, but timely, report is not
mandatory. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(c), (r)(6); Poland,
2008 WL 340447, at *8; Thoyakulathu v. Brennan, 192 S.W.3d 849, 853
(Tex. App.—Texarkana 2006, no pet.) (“Section 74.351(c) applies only when
9
‘an expert report has not been served within’ the 120-day period ‘because
elements of the report have been found deficient.’ This clearly requires a
timely-served report that is deficient.”) (emphasis in original). By its plain
language, section 74.351(a)’s requirement that a defendant whose conduct is
implicated in a report must file and serve “any objection to the sufficiency of
the report not later than the 21st day after the date it was served” applies to
an objection based on the sufficiency (or deficiency) of a timely-served report.
T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(a) (emphasis added); Poland, 2008
W L 340447, at *8 (“[T]he ‘objection to the sufficiency of the report’ in . . .
section 74.351(a) means an objection to the report’s substance, not to the
timeliness of its service.”). Consequently, a defendant physician or health care
provider who’s conduct is implicated in a timely-served report must file and
serve any objection to the sufficiency of the report not later than twenty-one
days after the report was served, “failing which all objections are waived.” See
T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(a); see also Ogletree, 2007 WL
4216606, at *4–5; Pena v. Methodist Healthcare Sys. of San Antonio, Ltd.,
220 S.W .3d 52, 54 (Tex. App.—San Antonio 2006, no pet.) (holding that
twenty-one-day period for defendant health care provider to object to
sufficiency of report not triggered until claimant has filed both the report and
a curriculum vitae of each expert listed in report).
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C. Any Objections to Report’s Sufficiency Waived
Here, Appellees served Dr. Fredric’s report on Maris when they filed and
served their original petition on October 12, 2004. Because Appellees served
Maris with an expert report within 120 days of filing suit, the report was not
an absent report necessitating the mandatory dismissal of Appellees’ claims.
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 74.351(b). Maris’s argument that the
report is no expert report because it did not specifically name him is an
objection and argument directed to the report’s sufficiency. The question then
is whether Dr. Fredric’s alleged deficient report implicated Maris, triggering the
twenty-one day sufficiency objection deadline of section 74.351(a). See id.
§ 74.351(a).
The report sets forth a chronology of events as evidenced by Melissa’s
medical records. It stated in part,
There are two different hands describing this visit and the
subsequent surgery on October 21, performed at Highland Family
Medical Clinic at which time a 1 cm mass lesion was removed from
Ms. Hendricks’ scalp. There is no indication in the records that the
material removed from her scalp was ever sent for appropriate
pathological analysis.
Dr. Fredric opined that the “standard of care in this case requires submission
of all tissue removed from patients who present with a soft tissue mass for
appropriate pathological analysis.” He also opined that the applicable standard
11
of medical care had been breached for “[f]ailing to submit the tissue removed
from Ms. Hendricks for appropriate pathological analysis” and for “[f]ailing to
diagnose and treat the malignancy present in Ms. Hendricks’[s] body.” Dr.
Fredric further reasoned that “Highland Family Medical Clinic, by and through
the acts and omissions of its staff, failed to meet the applicable standard of
medical care or breached the acceptable standard of medical care.” He
concluded that the “failure to conform to acceptable standards of medical care
proximately caused the subsequent disability experienced by Ms. Hendricks,
and ultimately will be a proximate cause of her death from metastatic soft
tissue sarcoma.” Maris is the individual who removed the initial cyst from
Melissa’s scalp.
We determine that Dr. Fredric’s report sufficiently implicated Maris’s
conduct. See Palacios, 46 S.W.3d at 876–80 (discussing purpose of requiring
expert testimony and report in medical malpractice cases and stating that report
must fulfill statute’s purpose of informing defendant of specific conduct called
into question by plaintiff and providing a basis for trial court to conclude the
claims have merit). Maris thus had twenty-one days from the date he was
served with the report—or until November 2, 2004—to assert his objections to
the report, but he did not file his first motion to dismiss complaining of the
report until November 21, 2005, and his second motion to dismiss until May
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29, 2007, many days beyond the twenty-one-day deadline. Maris’s sufficiency
objection to the report could have been urged within the statutory twenty-one-
day period. Because Maris did not assert his sufficiency objections within the
twenty-one-day period, he waived his objections. See T EX. C IV. P RAC. & R EM.
C ODE A NN. § 74.351(a). see also Ogletree, 2007 WL 4216606, at *4–5.5
In light of Maris’s waiver of his sufficiency objections, the trial court’s
subsequent determination that Dr. Fredric’s report was “insufficient as to”
5
… The cases that Maris relies on to support his argument that Dr.
Fredric’s report was no expert report are all distinguishable or inapposite, partly
because each of the defendants in those cases filed timely objections to the
reports, unlike Maris. See Davis v. W ebb, No. 14-07-00331-CV, 2008 WL
190054, at *1–4 (Tex. App.—Houston [14th Dist.] Jan. 22, 2008, no pet. h.)
(holding that expert report of optometrist was no expert report because only a
“physician,” which does not include an optometrist, may qualify as an expert
on the issue of whether a physician departed from accepted standards of
medical care); Cuellar v. Warm Springs Rehab. Found., No. 04-06-00698-CV,
2007 WL 3355611, at *1–3 (Tex. App.—San Antonio Nov. 14, 2007, no pet.)
(holding that trial court properly dismissed suit because expert reports of nurse
and Mexican-licensed doctor, neither of whom were “physicians,” were no
reports); see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 278 (Tex.
App.—Austin 2007, no pet.) (defendant objected to report); Simonson v.
Keppard, 225 S.W.3d 868, 870 (Tex. App.—Dallas 2007, no pet.) (defendant
objected to report).
We are also mindful of Justice Willett’s concurring opinion in Ogletree
observing that, in addition to absent and deficient reports, there might be a
third category of expert reports that merits dismissal just like an absent report:
“a document so utterly lacking that, no matter how charitably viewed, it simply
cannot be deemed an ‘expert report’ at all, even a deficient one.” See Ogletree,
2007 WL 4216606, at *6 (Willet, J., concurring). Dr. Fredric’s report does not
fall within this classification.
13
Maris and its grant to Appellees of a thirty-day extension to cure the alleged
deficiency was superfluous and procedurally inconsequential, which Appellees
had argued to the trial court. Moreover, the filing of Dr. Srivathanakul’s report
after the expiration of the 120-day deadline likewise was of no effect because
Appellees timely served Dr. Fredric’s report implicating Maris and Maris waived
his sufficiency objections to the report. Maris’s arguments relying on Danos,
which the supreme court has reversed, and complaining of the untimely filed
new expert reports of Dr. Moore and physician’s assistant Delasi are inapposite
for the same reasons.
Maris further contends that Appellees failed to serve a timely report
complying with the requirements of section 74.351(r)(6) because, having
determined that Dr. Fredric “could not testify against Maris due to his lack of
qualifications,” the trial court subsequently struck Dr. Fredric from testifying as
an expert on behalf of Appellees.6 Maris confuses a Daubert 7 motion
challenging a testifying expert with a section 74.351-based motion to dismiss
6
… Maris argued at the August 13, 2007 hearing on his motion to dismiss
that “now that Dr. Fred[]ric has been stricken from this matter, his report
obviously does not meet the standard under 74.351.” And Maris argues,
“Because the trial court struck Dr. Fredric’s report as to Maris[,] . . . Appellees
never served an ‘expert report’ as defined by the statute.”
7
… See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct.
2786 (1993).
14
a health care liability claim. Nothing in section 74.351 provides that an expert
report meeting the statute’s requirements is invalidated if the expert who signed
off on the report is subsequently struck pursuant to a Daubert challenge, nor
has Maris directed us to any such authority. Moreover, the supreme court has
stated that the trial court’s inquiry when determining whether the report
represents a good faith effort to comply with the definition of an expert report
in section 74.351(r)(6) is limited to the four corners of the report. Palacios, 46
S.W.3d at 878. Maris cannot rely on excerpts from deposition testimony taken
long after the filing of an adequate expert report and allegedly establishing that
a designated expert is not qualified to provide expert testimony because such
excerpts are not included within the four corners of the report. Finally,
accepting Maris’s argument would be inconsistent and incongruous with the
goals of section 74.351 because, as Maris states in his brief, “the purposes
behind the amendments [to the Medical Liability Act] were, among other things,
to remove unwarranted delay and expense, to accelerate the disposition of non-
meritorious cases, and to give hard-and-fast deadlines for the serving of expert
reports.” Maris’s attempt to dispose with an initial determination that an expert
report satisfies the requirements of section 74.351 after a trial court’s ruling
months or years later that the same expert who sponsored the report is not
15
qualified to testify as an expert is wholly inconsistent with the “purpose” of the
statute.
We hold that the trial court did not abuse its discretion by denying Maris’s
motion to dismiss Appellees’ health care liability claims. Accordingly, we
overrule Maris’s sole issue.
IV. Conclusion
Having overruled Maris’s sole issue, we affirm the trial court’s
interlocutory order denying Maris’s motion to dismiss Appellees’ health care
liability claims.
DIXON W. HOLMAN
JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
DELIVERED: May 1, 2008
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