IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 3, 2001
______________________________RICHARD PELFREY,
Appellant
V.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 12,585-C; HON. PATRICK PIRTLE, PRESIDING _______________________________
ABATE AND REMAND _______________________________
Before BOYD, C.J., QUINN and REAVIS, JJ.
Richard Pelfrey (appellant) appeals from a judgment convicting him of indecency with a child. After appellant's notice of appeal and the appellate record were timely filed, appellant's counsel filed a Motion to Abate and Remand. Through this motion, appellant represents that even though the judgment shows that he was convicted of indecency with a child, he was actually convicted of the lesser included offense of attempted indecency with a child. The State has not filed a response.
We abate the appeal and remand the cause to the 251st Judicial District Court (district court) and order the district court to immediately notice and conduct a hearing to determine whether the judgment incorrectly reflects the offense for which appellant was actually convicted and, if so, whether the mistake is a clerical error subject to correction via a nunc pro tunc judgment. If it is determined that the judgment is incorrect and that the mistake is a clerical error, then the trial court shall execute all orders or decrees needed to correct the error and enter a nunc pro tunc judgment reflecting the offense for which appellant was actually convicted.
Furthermore, the district court shall also cause to be developed 1) findings of fact and conclusions of law addressing whether the judgment incorrectly reflects the offense for which appellant was actually convicted and whether the mistake was clerical, 2) a supplemental clerk's record containing the findings of fact and conclusions of law and all orders and any nunc pro tunc judgment of the district court issued as a result of its hearing on this matter, and 3) a reporter's record transcribing the evidence and argument presented at the hearing on this matter. Additionally, the district court shall cause the supplemental clerk and reporter's records to be filed with the clerk of this court on or before May 3, 2001. Should additional time be needed to perform these tasks, the district court may request same on or before May 3, 2001. Finally, the deadline by which appellant must file its appellant's brief is extended to June 4, 2001.
It is so ordered.
Per Curiam
Do not publish.
left cerebral system and he was admitted to Wilbarger General Hospital. Two days later he was transferred to a hospital in Wichita Falls and on December 17, 1998, he died.
By their lawsuit, the heirs contended the failure of Dr. Collums to diagnose and treat Sutton's stroke proximately caused his death. In his expert report in support of the heirs' case, Dr. Paul Carl Friedman agreed that cleaning Sutton's ears was one possible treatment for the symptoms initially presented. However, he also states that failure to diagnose and treat Sutton's stroke resulted in his death.
Doctor Collums filed a motion to reconsider his motion to dismiss the cause alleging the expert report did not satisfy the requirements of article 4590i of the Act. He challenged the report as inadequate for failing to address the appropriate standard of care for a general practitioner in treating a patient like Sutton. He also questioned the failure to include any tests or procedures that should have been performed by an ordinarily prudent general practitioner as well as the failure to indicate what diagnoses a general practitioner should have made based on tests and procedures. Based on Dr. Collums's motion, the trial court dismissed the suit.
By their sole issue, the heirs contend the trial court erred when it granted Dr. Collums's motion to dismiss pursuant to article 4590i, section 13.01. We disagree. A trial court's decision to dismiss a case pursuant to article 4590i, section 13.01 is reviewed under an abuse of discretion standard. American Transitional Care v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003), citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The issue for the trial court is whether the report represents a good faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 878. The report must contain a fair summary of the expert's opinion about the (1) applicable standard of care; (2) manner in which the care failed to meet that standard; and (3) causal relationship between that failure and the claimed injury. Article 4590i, § 1301(r)(6); Palacios, 46 S.W.3d at 878. The report must provide sufficient information to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 879.
The trial court should look no further than within the four corners of the report to determine whether it represents a good faith effort to comply with the definition of an expert report. Id. at 878. A plaintiff is not required to marshal all his proof, but must include the expert's opinion on each of the three elements required by the Act. Id. An expert report that merely states conclusions or omits any of the statutory requirements does not fulfill the purposes of an expert report. Id. at 879.
The heirs argue the trial court's dismissal was based on Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002), for failing to adequately allege causation and failing to connect the breach of the standard of care to the injury. They distinguish the reports in Bowie and in Palacios and assert that Dr. Friedman expressed his opinion on causation in his report by stating that Dr. Collums's failure to diagnose a stroke and treat it with blood thinner medications resulted in Sutton's death.
In his report, Dr. Friedman provides in relevant part:
It was a serious error and negligent to fail to ask the question 'why did not the treatment restore his hearing and balance?', then analyze the answer and act thereon. Had that been done, the appropriate diagnosis of "brain attack" or "stroke" would have been made, and appropriate treatment, i.e. administration of a blood thinner would have been initiated, limiting the effect of the stroke. . . . Mr. Sutton's decline and death was a result of that failure to diagnose and treat.
The standard of care breached is: That which an ordinarily prudent health care provider (in this case, a general practitioner) would do under the same or similar circumstances. Such a physician would, under the circumstances, have made a proper diagnosis after further examination following the failure of the initial treatment (ear cleaning).
As required by Palacios, we must focus our analysis only on the information contained in the four corners of the report. Although it discusses what a general practitioner would do under the same or similar circumstances, it does not address the causal relationship between the alleged "serious error" in not questioning why Sutton's hearing and balance were not restored after his ears were cleaned and his death. Also, the report does not discuss any tests or procedures that should have been performed by an ordinarily prudent general practitioner on a patient with Sutton's symptoms. No connection is provided between Dr. Collums's failure to diagnose and treat stroke symptoms and Dr. Friedman's conclusory statement that the alleged failure resulted in Sutton's death. Based on the information provided in the report, we cannot conclude the trial court abused its discretion in dismissing the heirs' cause of action. The heirs' sole issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. Repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex.
Sess. Law Serv., current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.001 - 74.507
(Vernon Pamph. Supp. 2004). All citations to the Act herein are to article 4590i of the
Texas Revised Civil Practice and Remedies Code that was in effect at the time of the
underlying suit.