IN THE
TENTH COURT OF APPEALS
No. 10-09-00155-CV
ANA MARIA GONZALEZ SALAIS,
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
RUBEN GONZALEZ, DECEASED,
Appellant
v.
TEXAS DEPARTMENT OF AGING &
DISABILITY SERVICES,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 28901A
DISSENTING OPINION
Ana Maria Gonzalez Salais appeals the trial court’s judgment dismissing her
health care liability claim against the Texas Department of Aging and Disability
Services. Because the trial court did not abuse its discretion in granting TDADS’s
motion to dismiss or in denying Salais’s request for a 30-day extension, we should
affirm the trial court’s judgment. Because the Court does not, I respectfully dissent.
BACKGROUND
Salais’s son, Ruben Gonzalez, was a patient at a TDADS facility, the Mexia State
School. After an altercation with the State School staff, Gonzalez was placed on a
restraint board. He then died. Salais sued both TDADS and the Mexia State School.
The trial court granted TDADS’s motion to dismiss.
In two issues on appeal, Salais argues that the trial court erred in granting
TDADS’s motion to dismiss pursuant to section 74.351 of the Texas Civil Practice and
Remedies Code and erred in denying Salais’s request for a 30-day extension pursuant to
section 74.351(c) of the Texas Civil Practice and Remedies Code.
DISMISSAL
Section 74.351 of the Civil Practices and Remedies Code provides that within 120
days of filing, a claimant must serve a curriculum vitae and one or more expert reports
regarding every defendant against whom a health care claim is asserted. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp. 2009). “Section 74.351 has
numerous subparts, including:
. subpart (b) requiring trial courts to dismiss a claim with prejudice and award
fees if "an expert report has not been served" by the statutory deadline;
. subpart (c) allowing a 30-day extension of the deadline if a report is found
inadequate; and
. subpart (l) providing that a motion challenging a report's adequacy should be
granted only if the report does not represent a good-faith effort to comply with the
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 2
statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (footnotes omitted); TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(b), (c), (l) (Vernon Supp. 2009).
When considering a motion to dismiss under section 74.351, 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. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.
2001). An "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 the 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2009). To constitute a
"good-faith effort," the report must discuss the standard of care, breach, and causation
with sufficient specificity to fulfill two purposes: (1) to inform the defendant of the
specific conduct the plaintiff has called into question; and (2) to provide a basis for the
trial court to conclude that the claims have merit. Bowie, 79 S.W.3d at 52; Palacios, 46
S.W.3d at 879.
The report must include the expert's opinion on each of the three elements that
the statute identifies: standard of care, breach, and causal relationship. Bowie, 79
S.W.3d at 52; Palacios, 46 S.W.3d at 878. A report cannot merely state the expert's
conclusions about these elements. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.
"Rather, the expert must explain the basis of his statements to link his conclusions to the
facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999).
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 3
We review a trial court's order dismissing a claim for failure to comply with the
expert report requirements under an abuse-of-discretion standard. Bowie, 79 S.W.3d at
52; Palacios, 46 S.W.3d at 878. Expert reports that omit at least one of the three
specifically enumerated requirements of an expert report cannot constitute a good faith
effort to meet the statutory requirements. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex.
2006); Palacios, 46 S.W.3d at 879.
Salais provided two reports to serve as her expert report. One report was
prepared by James Wohlers, a paramedic from Nebraska, which Salais alleged
addressed the expert report elements of the standard of care and the breach of that
standard. The other report was prepared by Donald Winston, a physician from
Houston. Salais alleged Dr. Winston’s report addressed the causation element. TDADS
complains, and I agree, that Dr. Winston’s report wholly fails to address the causation
element.
Assuming without deciding that Dr. Winston is otherwise qualified to render an
opinion on causation, he does not. Dr. Winston states in his report that he reviewed the
autopsy report of Ruben Gonzalez and the death certificate. Then, he simply states that,
although he disagrees with the nine pathologists on whether Gonzalez was in part
responsible for his own death, he agrees with them in their conclusion that it was
homicide caused by restraint and mechanical asphyxiation “imposed on him by the
three Mexia State School employees.”
What Dr. Winston fails to do is draw the connection or explain the causal link
between the negligent actions of a specific health care provider (the elements of
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 4
standard of care and breach as described by Wohlers, the other purported expert) and
the damages/injury (Gonzalez’s death). In other words, his report on causation must
make the connection that the death by mechanical asphyxiation was caused by the
conduct described by Wohlers, assuming that was adequately presented in the other
expert report. See Bowie, 79 S.W.3d at 53. Because Dr. Winston did not indicate he had
reviewed the other purported expert’s report, this required connection is simply
missing. Further, it is impermissible to infer that the conduct referenced in one report is
the basis for the conclusions in the other report. See Austin Heart, P.A. v. Webb, 228
S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).
Dr. Winston’s report is similar to an expert report discussed in Shaw v. B.M.W.
Healthcare, Inc., 100 S.W.3d 8 (Tex. App.—Tyler 2002, pet. denied). In Shaw, the Shaws
filed two expert reports to address the three elements, one from a physician and one
from a registered nurse. The Shaws agreed that the physician’s report did not set out
the applicable standards of care or address how the defendants breached any standards.
They argued, however, that those omissions were irrelevant because the physician only
rendered an opinion on the cause of death. Citing to Palacios, the Tyler Court of
Appeals held that because there was no discussion in the report as to the applicable
standard of care and any breaches of that standard, an opinion solely addressing the
cause of death did not satisfy the statutory requirements of an expert report. Shaw, 100
S.W.3d at 13 (citing Palacios, 46 S.W.3d at 879). Like the report in Shaw, Dr. Winston’s
report only addressed Gonzalez’s cause of death without a link between the alleged
breach and the injury. Accordingly, I would hold that Dr. Winston’s report does not
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 5
meet the requirement of an expert report because there is nothing in the report that
addresses the causal connection between the breach by the Mexia State School
employees of the standard of care as allegedly contained in Wohlers’s report and the
injury, the death of Gonzalez, claimed. The causation element has been omitted from
the report.
Because Salais’s expert reports omit at least one of the three specifically
enumerated requirements of subsection (r)(6), they cannot constitute a good faith effort
to meet those requirements. I need not decide TDADS’s objections to Wohlers’s report.
Accordingly, because the trial court did not abuse its discretion in granting TDADS’s
motion to dismiss Salais’s suit against TDADS, Salais’s first issue should be overruled.
CONTINUANCE
Salais further argues that should we determine the reports were deficient, we
should remand the matter back to the trial court for a 30-day extension. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(c) (Vernon Supp. 2009). The parties agree and the
trial court’s docket sheet indicates that a request for a 30-day extension was denied.
Section 74.351(c) provides in part that the trial court may grant one 30-day extension to
the claimant to cure a deficiency in an expert report. Id. The term "may" as used in
subsection (c) vests the trial court with discretion to grant a 30-day extension. Bosch v.
Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex. App.—Amarillo 2006, pet denied); Hardy
v. Marsh, 170 S.W.3d 865, 870-71 (Tex. App.—Texarkana 2005, no pet.).
I assume without deciding that once the trial court determines that the report
furnished did not constitute a good faith effort to meet the requirements of an expert
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 6
report, the trial court can, nevertheless, grant a 30-day extension to cure the deficiency.
To grant such an extension, the trial court would have to consider the totality of the
circumstances surrounding the preparation of the report, such as the difficulty, if any,
encountered by the plaintiff in obtaining the necessary experts or in getting the medical
records necessary for the expert to review, the diligence of the plaintiff in securing an
expert on the specific type of healthcare liability claim, whether a 30-day extension
would have allowed the plaintiff to cure the defect, and the extent of the deficiency in
the proffered report. This list of considerations is by no means exhaustive.
But in this case, we have not been provided any record from which we could
review the trial court’s determination. Because we have no record to review, Salais is
unable to support the complaint that the trial court abused its discretion in failing to
grant a 30-day extension. See In the Interest of D.W., 249 S.W.3d 625, 648 (Tex. App.—
Fort Worth 2008, no pet.) (because no record of hearing on motion to extend dismissal
deadline, court presumes evidence supported trial court’s ruling and no abuse of
discretion shown).
Salais’s second issue should be overruled.
CONCLUSION
Having overruled each issue, I would affirm the interlocutory order of dismissal
of the trial court. Because the Court does not, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed August 4, 2010
Salais v. Tex. Dep’t of Aging & Disability Servs. Page 7
Ana Maria Gonzalez Salais, Individually and as Representative of the Estate of Ruben Gonzalez v. Texas Department of Aging & Disability Services
Combined Opinion