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COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
NUMBER 13-05-765-CV
MARY LOUISE WATKINS, M.D., Appellant,
v.
GARY JONES, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
NUMBER 13-06-080-CV
IN RE: MARY LOUISE WATKINS, M.D.
On Petition for Writ of Mandamus
DISSENTING OPINION
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Dissenting Opinion by Justice Castillo
In this case, the trial court granted an oral request on behalf of real-party-in-interest Gary Jones for an extension of time to file an expert report. Relator Mary Louise Watkins asserts that the trial court's order granting the request violates section 74.351(c) of the Texas civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. _74.351(c) (Vernon Supp. 2005). Because the majority and I diverge as to what constitutes an "expert report," I respectfully dissent.
I. Procedural History[1]
By his live pleading filed on February 10, 2005, Jones alleged a health care liability claim. On April 18, 2005, he proffered an "expert report" from his treating physician, without a curriculum vitae, summarizing the evaluation, diagnosis, and treatment. On April 12, 2005, Watkins filed objections asserting that it did not comply with statutory requirements because it did not contain the applicable standard of care, a breach of any standard of care, and a causal link between an alleged breach and the complained-of injuries. On June 23, 2005, Watkins filed a motion to dismiss based on the same grounds urged in her objections. Watkins asserted that Jones had not filed an "expert report" and more than 120 days had passed. The trial court convened a hearing on Watkins's motion on September 21, 2005 and, after viewing the document, stated "it does not meet the standard." Jones argued that the report submitted was adequate but stated he was willing to amend it. The trial court granted Jones thirty days to file a compliant report. The trial court ruled:
I'm going to give you 30 days. If you don't have that report, I am going to grant his dismissal. It needs to be in compliance with the statute because I agree with [Watkins' counsel] that all that is [sic] saying is reciting when she went to the doctor, what the doctor did, then she got laser treatment, and then her vision improved, but, you know, it wasn't back to where it was. It's just a narrative. It's not an expert's report as to the standard of care as required by the statute at all, not even close.
On November 29, 2005, the trial court entered an order denying Watkins' motion to dismiss. This combined original proceeding and appeal ensued.
II. The Law
A. Requirements of an Expert Report
Jones's medical malpractice suit fell squarely within the purview of the Medical Liability and Insurance Improvement Act of Texas, which applies to all healthcare liability claims brought in Texas. Tex. Rev. Civ. Stat. Ann. __74.001- 74.507 (Vernon 2005). The statute has specific procedural requirements, including one requiring the parties to timely serve an expert report with the expert's curriculum vitae to the opposing party. See id. _74.351(a). "Expert report" means:
a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding 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).[2] An "expert" is a person, among others, giving opinion testimony in any health care liability claim regarding whether a physician departed from accepted standards of medical care or about the causal relationship between the injury, harm, or damages claimed and the alleged departure from that standard. See Tex. Rev. Civ. Stat. Ann. _74.351(r)(5)(A), (C). The expert report must represent a good faith effort to provide a fair summary of the expert's opinions. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). The report must include each of the statutory elements including standard of care, breach of that standard, and causation. Id._74.351(r)(6). A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in subsection. Tex. Rev. Civ. Stat. Ann. _74.351 (l). A report does not constitute a good faith effort to comply with the statutory requirements if it omits any of the statutory elements. Palacios, 46 S.W.3d at 879. The deadline for serving the report is not later than the 120th day after the date the original petition was filed. Id. _74.351(a).
B. Extension of Time for Filing the Expert Report
The statute also contains a specific provision regarding a thirty-day extension. The section provides in part that, if an expert report has not been served within the period specified by subsection (a) 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. See id. _74.351(c). Subject to subsection c, the trial court on proper motion shall dismiss the claim if an expert report has not been served within the statutory period. Id. _74.351(b).
III. Discussion
Respectfully, I disagree that the trial court implicitly determined that the report was a good faith effort to comply with statutory requirements.[3] The trial court expressly found that the report was a narrative. That express finding is correct because Jones served a narrative and not an expert report as that term is statutorily defined, id._74.351(r)(6). The narrative did not contain any of the statutory elements and, thus, does not constitute a good faith effort to comply with the statutory requirements. See Palacios, 46 S.W.3d at 879. Thus, the trial court correctly found that the document Jones served was a narrative and not an expert report. See Tex. Rev. Civ. Stat. Ann. _74.351(r)(6).
Because the narrative omitted the statutory elements and was not a good faith effort to comply, the next inquiry is whether the trial court had discretion to grant an extension. Section 74.351(l) states that the trial court shall grant a motion challenging a report that does not represent an objective good faith effort to comply with the statutory definition of an expert report. Rev. Civ. Stat. Ann. _74.351(l). Respectfully, I conclude that in this case, the medical narrative was not an objective good faith effort to comply with the statute. Thus, on proper motion to dismiss, the trial court had no discretion but to dismiss. See id. _74.351(l); Downer v. Aquamarine, 701 S.W.2d 238, 241‑42 (Tex. 1985) (holding that, in reviewing a trial court decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles). I further conclude that the trial court abused its discretion by granting an extension under section 74.351(c).
By its plain terms, section 74.351(c) authorizes an extension (1) where elements of the report are found deficient, and (2) to cure the deficiency. See Tex.Civ. Prac. & Rem. Code Ann. _74.351(c). Jones filed a medical narrative rather than an expert report with a curriculum vitae. Absent an expert report, there is no deficiency to cure. Respectfully, I conclude that the trial court abused its discretion in granting an extension to cure a deficiency in a expert report that did not exist. See id. _74.351(b), (c); Downer, 701 S.W.2d at 241‑42.
IV. Conclusion
Because I conclude that the statute does not authorize curing a deficiency in a medical narrative, which is not an expert report, I conclude that the trial court abused its discretion in denying Watkins's motion to dismiss. Thus, I respectfully dissent.
ERRLINDA CASTILLO
Justice
Dissenting Opinion delivered and filed
this the 4th day of May, 2006.
[1]In a civil case, we accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f).
[2]The Texas Legislature has stated that words and phrases used in a statute should be read in context and construed according to the rules of grammar and common usage. Tex. Gov't Code Ann. '311.011(a) (Vernon Supp. 2005).
[3]The result of the majority's holding is that a medical narrative without a curriculum vitae satisfies the statutory definition of an expert report. See Tex. Rev. Civ. Stat. Ann. '74.351(r)(6).
Respectfully, I disagree.