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).

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 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.

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 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

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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

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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

12
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.

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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).

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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

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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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