Rafael A. Avila, M.D. v. Eva Nelda Jimenez, Individually and as of the Estate of Mario M. Jimenez, M.D., Natalia Celeste Jimenez and Antonio Manuel Jimenez

NUMBER 13-12-00101-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAFAEL A. AVILA, M.D., Appellant,

v.

EVA NELDA JIMENEZ, INDIVIDUALLY AND
AS EXECUTRIX OF THE ESTATE OF MARIO
M. JIMENEZ, M.D., DECEASED, NATALIA
JIMENEZ AND ANTONIO MANUEL JIMENEZ, Appellees.

On appeal from the 332nd District Court
of Hidalgo County, Texas.

DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides, and Perkes
Dissenting Memorandum Opinion by Justice Perkes
I disagree with the majority’s holding for two reasons. First, I do not agree that the

expert report, filed on October 24, 2006, either implicated or was intended to implicate the

conduct of Dr. Avila. Second, I believe that the expert report, dated May 23, 2011, also
did not implicate the care given by Dr. Avila. And, even if it did implicate Dr. Avila, it was

“no report,” because it did not meet the requirements set forth by the Texas Supreme

Court in Scoresby v. Santillan. See 346 S.W.3d at 549 (stating that the “Act does not

suggest that a document utterly devoid of substantive content will qualify as an expert

report.”).

Appellees (“the plaintiffs”) brought suit against multiple health care providers

including Edinburg Surgery Center, L.P. d/b/a Surgical Center of South Texas; Edinburg

Ambulatory Surgical Center, Inc. (Edinburg Surgery Center, L.P.’s general partner);

Renaissance Surgical Centers - South Texas, L.L.P. d/b/a Renaissance Surgical Center

of South Texas; Renaissance Surgical Centers - South Texas, Inc. (Renaissance

Surgical Centers – South Texas L.L.P.’s general partner), Renaissance Surgical Center

South Texas L.L.P. d/b/a Renaissance Surgical Center of South Texas; Renaissance

Surgical Centers, Inc. (Renaissance Surgical Center South Texas, L.L.P.’s general

partner); Universal Health Services, Inc.; Renaissance Healthcare Systems, Inc.; Mary

Barrera, RN; Tammy Rivera, RN; John C. Rhinehart, CRNA; and Rafael A. Avila, M.D.

Appellees alleged that the defendants were negligent in performing an umbilical hernia

repair, liposuction, and abdominoplasty on Mario M. Jimenez.

Appellees subsequently entered into a Rule 11 agreement with Dr. Avila’s counsel

on October 23, 2006, one day before the October 24, 2006 expert report was filed. The

rule 11 agreement extended appellees’ deadline to file “any and all expert report(s)

required by Section 74.351” to the fourteenth day after counsel for appellees received the

transcript of Dr. Avila’s deposition. While the majority suggests the October 2006 report

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was served with respect “to all health care providers in this case, including Dr. Avila,” it

seems highly unlikely that the report was intended to include any claim against Dr. Avila,

particularly since the rule 11 agreement, dated one day prior to the October 2006 report

was filed, extended appellees’ deadline to file any and all reports implicating Dr. Avila.

On May 23, 2011, appellees filed the following expert report, which states, in its

entirety, as set forth below. No medical records or other affidavits were submitted.

EXPERT REPORT:
Attorney-Client Privileged Document

I. Jose Perez, M.D., F.C.C.P.

II. Board certified in Pulmonary Diseases and Critical Care Medicine; in
process of renewing board certification of Internal Medicine.

III. I have reviewed the medical records of Mario Jimenez, M.D. from
Renaissance Surgical Center of South Texas, Starr EMS, Starr
County Memorial Hospital, and McAllen Medical Heart Hospital.

IV. The standard of care requires assessment with complete History and
Physical Examination prior to surgery. This is especially crucial for a
diabetic patient; EKG, Stress Test, and Blood work are part of the
examination.

V. This patient would have been saved if the surgeries had performed
in a hospital setting with the facilities to have properly resuscitated
him. The main surgery the patient went in for was hernia repair,
which should have been done in a hospital.

CONCLUSION:

Based on my review of the medical records, it is my opinion, based
on reasonable medical probability, that the lack of appropriate care and
treatment was a direct and proximate cause of the death of Mario Jimenez,
M.D. It fell below the standard of care to perform the surgeries in an
ambulatory surgical center setting. Further, if such surgeries are performed
in an ambulatory care setting, the patient must be observed at least
overnight. But for the inappropriate discharge of Mario Jiminez, M.D. from
the ambulatory surgical center on April 13, 2004, Mario Jimenez, M.D.

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 would not have expired on April 14, 2004. Had Mario Jimenez, M.D. been
placed in a hospital setting with the ability to provide supportive therapy and
care to timely treat the development of fat emboli, it is my medical opinion
that more likely than not Mario Jimenez, M.D. would have survived the
episode that took his life on April 14, 2004.1

Notably this report was also written before Dr. Avila was deposed on July 8, 2011.

On August 24, 2011, Appellees’ counsel received the transcription of his deposition.

Thus, appellees had until September 7, 2011 to file a report that implicated Dr. Avila. No

further report or documentation was filed. On October 5, 2011, Dr. Avila filed a motion to

dismiss.

At a hearing held in November 2011, appellees’ counsel urged that the May 23,

2011 report implicated Dr. Avila’s conduct. The majority concludes, and I agree, that the

May 23, 2011 report mirrored the report of October 2006, except that the May 2011 report

further concludes: (1) “It fell below the standard of care to perform the surgeries in an

ambulatory surgical center setting”, and (2) “if such surgeries are performed in an

ambulatory care setting, the patient must be observed at least overnight.”

I disagree with the majority, however, that the May 2011 report applied to Dr.

Avila’s care. In addition to the fact that it was prepared well before the deadline set forth

in the parties’ rule 11 agreement, Dr. Avila is not named in the report, and no other

affidavits, medical records, or other documents are attached to or otherwise

accompanied the May 2011 report. In addition, the report does not state what, if

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The introductory language is identical in both reports. The October 24, 2006 report, however
states in its Conclusion: Based on my review of the medical records, it is my opinion, based on reasonable
medical probability, that the lack of appropriate care and treatment was a direct and proximate cause of the
death of Mario Jimenez, M.D. But for the inappropriate discharge of Mario Jimenez, M.D. from the
ambulatory surgical center on April 13, 2004, Mario Jimenez, M.D. would not have expired on April 14,
2004. Had Mario Jimenez, M.D. been placed in a hospital setting with the ability to provide supportive
therapy and care to timely treat the development of fat emboli, it is my medical opinion that more likely than
not Mario Jimenez, M.D. would have survived the episode that took his life on April 14, 2004.
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anything, that Dr. Avila personally did or did not do, and does not include any opinions

specifically critical of Dr. Avila’s care. I would hold that the report was “no report” as to

Dr. Avila.

In Scoresby, the supreme court concluded that a thirty-day extension to cure

deficiencies may be granted if: (1) the report is served by the statutory deadline; (2) it

contains an opinion of an individual with expertise that the claim has merit; and (3) the

defendant’s conduct is implicated. Id. at 557. To be a report as to a particular defendant,

there is no requirement that a document refer to the defendant by name, so long as it

implicates the defendant’s conduct. Ogletree v. Matthews, 262 S.W.3d 316, 323-22

(Tex. 2007). A report served in a medical liability lawsuit, however, does not implicate a

particular health care provider’s conduct merely because the provider is a defendant in

the lawsuit. Id.

In Scorseby, the supreme court attempted to distinguish between a report that is

so insubstantial that it does not constitute a report under section 74.351, and one that is

merely deficient, but may be amended. Scoresby, 346 S.W.3d at 555. Here, even if we

assume that the report meets the first two requirements set forth in Scorseby, it clearly

does not meet the third. The report wholly fails to name any of the medical defendants,

and certainly does not name or otherwise implicate Dr. Avila. See e.g., Sinha v.

Thurston, 373 S.W.3d 795, 800-01 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(expert report that did not name appellant physician or implicate his conduct constituted

no report as to physician); Haskell v. Seven Acres Jewish Senior Care Services, Inc., 363

SW3d 754, 760-61 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (report that did not

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name nurse defendant, apply any standard of care or identify any negligent conduct on

her part deemed "no report"); Laredo Texas Hosp.Co. v. Gonzalez, 363 S.W.3d 255,

258-59 (Tex. App.—San Antonio 2012, no pet.)(conclusory report offering no mention of

any health care defendant or any applicable standard of care); Bogar v. Esparza, 257

S.W.3d 354, 364 (Tex. App.—Austin 2008, no pet.) (“W]here a defendant is not identified

at least in some manner within the 'four corners' of the report, the report is, for that reason

alone, deficient as to that defendant because it would require the reader to infer or make

an educated guess as to whose actions the expert is complaining."); Rivenes v. Holden,

257 S.W.3d 332, 338-39 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding

report discussing conduct of co-defendant physician, hospital, and unidentified

"emergency room staff" was no report as to appellant physician); Apodaca v. Russo, 228

S.W.3d 252, 257 (Tex. App.—Austin 2007, no pet.) (holding report which referred to other

health care providers but did not mention sole defendant or discuss how the defendant

breached the standard of care or caused injury or damages was no report as to

defendant); Garcia v. Marichalar, 198 S.W.3d 250, 252 (Tex. App.—San Antonio 2006,

no pet.) (holding reports insufficient that did not mention appellant physician or discuss

how the care rendered by him failed to meet the applicable standard of care, or how his

failure caused the defendant to suffer injury, harm or damages).

The May 2011 report suggests that the standard of care requires an assessment

with complete history and physical examination prior to the surgery and concludes that

the patient would have been saved if the facility had properly resuscitated him. The

report also concludes that the surgery should have been done in a hospital. The

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reporting physician’s conclusions on causation do not flow from what he opines was the

standard of care. Most important, however, is that nothing in the report sets forth a

standard of care for Dr. Avila or a breach of a standard of care. It is simply no report with

respect to the care given by Dr. Avila. See. Id.

I would conclude the trial court abused its discretion in denying Dr. Avila’s motion

to dismiss, and reverse the trial court’s judgment.

GREGORY T. PERKES
Justice

Delivered and filed the
11th day of April, 2013.

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