NO. 07-08-0059-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 14, 2008
______________________________
SMITH INTERNATIONAL, INC. AND/OR SMITH SERVICES
AND HARLEY TYLER,
                                                                                                                      Appellants
V.
ISRAEL BUSTAMANTE,
                                                                                                                      Appellee
_________________________________
FROM THE 286th DISTRICT COURT OF COCHRAN COUNTY;
NO. 06-04-3964; HON. HAROLD PHELAN, PRESIDING
_______________________________
ON MOTION TO DISMISS
                                       _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Appellants, by and through their attorney, represent to the court that they no longer wish to pursue this appeal and ask the Court to dismiss it. Appellee agrees to this motion. Without passing on the merits of the case, we grant the motion pursuant to Texas Rule of Appellate Procedure 42.1(a)(2), vacate the trial courtâs judgment, and dismiss the case. Tex R. App. P. 43.2(e) (stating that an appellate court may vacate a trial courtâs judgment and dismiss the case). Our having done so at the request of all the litigants, no motion for rehearing will be entertained, and our mandate will issue forthwith.
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                                                                           Brian Quinn
                                                                          Chief Justice
mere statement that a purported breach of an applicable standard of care caused a particular outcome. Rather, information explaining the link between the standard of care, its breach, and the ensuing injury must be contained within its four corners. So, when addressing the topic of causation, an expert is required to provide some factual information describing how and why the breach resulted in the injury. And, while this explanation need not equate a marshaling of evidence, Rittmer v. Garza, 65 S.W.3d 718, 723 (Tex. App.-Houston [1st Dist.] 2001, no pet.), it must be more than conclusions.
Application of the Law
The expert report at bar was provided by Dr. Howard I. Kurz. In it, he stated the standards of care applicable in circumstances confronting Wells. So too did the expert specify the manner in which Wells allegedly breached those standards. Yet, when it came to connecting the purported defaults to the death of Lawrence, he opined:
Mr. Ashmore would within a reasonable degree of medical certainty survivedhad the above mentioned measures been performed upon arrival. However, it is still possible he would have survived had Dr. Wells responded and taken appropriate measures when first paged by nursing staff.
* * *
It is my opinion that Dr. Wells breached the applicable standard of care in his treatment of Mr. Ashmore . . . and these acts of or omissions proximately caused Mr. Ashmore's death . . . .
Missing from these opinions is information explaining the link between the alleged defaults committed by Wells and Mr. Ashmore's death. Simply put, how or why they resulted in his death went unmentioned. Similarly unmentioned by Kurz is the condition of which Lawrence ultimately died. This is of import because elsewhere in his report the expert uttered that 1) increased doses of levophed and dopamine were administered to Mr. Ashmore "which lead to peripheral vasoconstriction and hypoperfusion as manifested my [sic] mental confusion and kidney shutdown" and 2) administering "large doses of pressors caus[ed] tissue hypoperfusion with kidney shutdown." Had the expert related that death resulted from vasoconstriction, hypoperfusion, mental confusion, or kidney shutdown, then it may be arguable that the report illustrated the requisite nexus between the purported conduct of Wells and the death of his patient. But, without specifying whether Ashmore died of heart failure, kidney failure, mental confusion, a combination of one or more of those conditions or of something else, Kurz provided us with no factual data tying the administration of those drugs to Lawrence's death. Simply put, without knowing what Lawrence ultimately died of we are left to only guess at the relationship between supposed bad acts on the part of the doctor and the death.
In sum, the allegations made by Kurz regarding causation were mere conclusions because they did not explain how the purported defaults caused Lawrence's death; the expert merely concluded that they did. See Nelson v. Ryburn, No. 07-05-0166-CV, 2006 Tex. App. Lexis 3081 at *7 (Tex. App.-Amarillo April 18, 2006, no pet.). So, the report fell short of constituting a good faith effort to provide a fair summary between the alleged misconduct of Wells and its relationship to Mr. Ashmore's death, and the trial court had no discretion but to sustain Wells' objections.
Accordingly, we reverse the order of the trial court denying Wells' objections to the report and remand the cause for further proceedings. (1)
Brian Quinn
Chief Justice
1. Statute provides that if "an expert report has not been served within the period specified . . . 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." Tex. Civ. Prac. & Rem. Code Ann.§74.351(c) (Vernon Supp. 2006). Omitted from this
language is that found in its predecessor and requiring the claimant to have acted without intent or conscious
indifference before leave to amend could be granted. See Tex. Rev. Civ. Stat. Ann. 4590i, §13.01(g)
(repealed effective September 1, 2003) (stating that leave to amend could be granted if the default was not
intentional or the result of conscious indifference but rather the result of accident or mistake). Furthermore,
Ashmore solicited, here and below, leave to cure any deficiency found in the report tendered. Given the
request, we deem it appropriate to remand the cause so the trial court may decide whether to exercise the
discretion vested in it by §74.351(c).