COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00400-CV
SOUTHWEST SURGICAL APPELLANT
HOSPITAL
V.
LARRY G. BOWEN APPELLEE
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 17-263139-13
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DISSENTING MEMORANDUM OPINION 1
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I respectfully dissent to the majority’s holding that the expert report
adequately addresses causation as to Southwest Surgical Hospital. For that
reason, I would reverse the trial court’s order and remand this case for the trial
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See Tex. R. App. P. 47.4.
court to consider whether to grant Bowen a thirty-day extension to cure the
deficiency.
Section 74.351 requires that an expert report provide a fair summary of the
expert’s opinions regarding the causal relationship between the defendant’s
failure to meet the standard of care and the injury, harm, or damages claimed.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (West Supp. 2014); Concentra
Health Servs., Inc. v. Everly, No. 02-08-00455-CV, 2010 WL 1267775, at *10 &
n.44 (Tex. App.—Fort Worth Apr. 1, 2010, no pet.) (mem. op.). To do this, the
report must not be conclusory in its explanation of causation. Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The expert report need not present
evidence as if the plaintiff was actually litigating the merits. See id. at 52–53;
Am. Transitional Care Ctrs. Of Tex., Inc v. Palacios, 46 S.W.3d 873, 879 (Tex.
2001). And no magic words such as “reasonable medical probability” are
required for compliance. Bowie Mem’l Hosp., 79 S.W.3d at 53. Nevertheless,
the report must provide enough information within the document to both inform
the defendant of the specific conduct at issue and to allow the trial court to
conclude that the suit has merit. Id. at 52.
Dr. Van Wyk opines in his report that if the Hospital had followed up with
Bowen, it would have learned of his post-operative complaints and notified Dr.
Ray more quickly of Bowen’s serious complications. But as Dr. Van Wyk also
recognizes in the report, Bowen followed up with Dr. Ray only a few days after
the surgery; according to Dr. Van Wyk, Dr. Ray either failed to recognize, or
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covered up, the import of Bowen’s complaints. Dr. Van Wyk does not say what
else the Hospital should have done to ensure that Bowen would have received
immediate surgical repair of the problem if it had known that he was having these
complaints. Likewise, Dr. Van Wyk does not state what, if anything, the Hospital
should have done regarding the lack of documentation of Dr. Ray’s qualifications
to perform the specific surgery. For example, he does not say that Dr. Ray was
unqualified to perform this particular type of surgery, that the Hospital should
have required him to provide documentation of his qualifications to perform the
surgery, and that it should have prohibited him from performing the surgery
without such documented qualifications. Although a generous reading of the
report indicates that Dr. Van Wyk faults the Hospital for not ensuring that Dr. Ray
had the necessary qualifications to perform the surgery in the first place, Dr. Van
Wyk does not explain how the Hospital’s breach of this standard of care caused
Bowen’s injuries. I would therefore conclude and hold that the trial court abused
its discretion by determining that the report constituted a good faith effort to
articulate how the Hospital’s breach of the standard of care caused Bowen’s
injuries. See Foster v. Richardson, 303 S.W.3d 833, 842 (Tex. App.—Fort Worth
2009, no pet.).
Accordingly, I would sustain the Hospital’s third issue and remand the case
to the trial court to consider a thirty-day extension. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008);
Tex. Health Harris Methodist Hosp. Fort Worth v. Biggers, Nos. 02-12-00486-CV,
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02-13-00040-CV, 2013 WL 5517887, at *8 (Tex. App.––Fort Worth Oct. 3, 2013,
no pet.) (mem. op.).
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
DELIVERED: September 4, 2014
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