Baylor College of Medicine v. Cindi C. Davies and John Davies

Reversed and Remanded and Opinion and Dissenting Opinion filed March 31,
2020.

In The

Fourteenth Court of Appeals

NO. 14-18-01014-CV

BAYLOR COLLEGE OF MEDICINE, Appellant

V.

CINDI C. DAVIES AND JOHN DAVIES, Appellees

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2018-05395

DISSENTING OPINION

Dr. Levin’s report did not need to marshal Mrs. Davies’s proof—what is
needed to satisfy an objective good faith effort to comply with the expert report
requirement is to discuss the standard of care, breach, and causation with sufficient
specificity to (1) inform the defendant of the specific conduct called into question
and (2) provide a basis for the trial court to conclude that the claims have
merit. Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018); Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010). The purpose of the expert report requirement is to
deter frivolous claims, not to dispose of claims regardless of their merit. Scoresby
v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011). The Texas Supreme Court “has
encouraged trial courts to liberally construe expert reports in favor of plaintiffs.”
Henry v. Kelly, 375 S.W.3d 531, 535 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied); see also Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J.,
concurring and dissenting) (“An expert report, as we have interpreted it, is a low
threshold a person claiming against a health care provider must cross merely to
show that his claim is not frivolous.”). When reviewing decisions, such as this one,
that fall within the trial court’s discretion, “[c]lose calls must go to the trial court.”
Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam). The
sufficiency of this report is a close call—however, the law specifies that in close
calls, we defer to the trial court’s ruling. Because the majority fails to do so, I
respectfully dissent.

/s/ Frances Bourliot
Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot
(Christopher, J., majority).

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