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JANELLE THOMPSON, CRNA, No. 08-20-00059-CV
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Appellant, Appeal from the
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v. 41st District Court
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GENESIS FONG, of El Paso County, Texas
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Appellee. (TC#2019DCV1550)
OPINION
Janelle Thompson, Appellant, brings an interlocutory appeal of the trial court’s denial of
her motion to dismiss the health care liability claim of Genesis Fong, Appellee. Appellant’s sole
issue is her allegation that Appellee’s expert reports were so deficient as to not qualify as expert
reports, meaning that Appellee failed to serve Appellant with an expert report within 120 days,
therefore, the trial court erred by failing to dismiss Appellee’s claims. TEX.CIV.PRAC.& REM.CODE
ANN. § 74.351. We find Appellant’s argument on appeal does not comport with her objections
raised with the trial court. Accordingly, Appellant has waived her sole issue on appeal.
TEX.R.APP.P. 33.1. We affirm the trial court’s decision.
BACKGROUND
Appellee gave birth at the Hospitals of Providence - East Campus on October 20, 2017.
Appellee alleges that during her labor Appellant, a certified registered nurse anesthetist (CRNA)
and another CRNA, Jose Robledo, placed an epidural catheter to alleviate her pain. Postpartum,
Appellee claimed neither Appellant nor Robledo were able to remove the catheter. A CT scan
showed the distal end of the catheter lodged in her spine and surgery was required to remove the
catheter. Two partial laminectomies were performed to remove the portion of the catheter lodged
in Appellee’s spine. The surgery was unsuccessful and a portion of the catheter remained. Appellee
sued Appellant and Robledo alleging they negligently failed to properly place and remove the
epidural catheter.
The Texas Medical Liability Act requires an individual alleging a health care liability claim
to timely present an expert report to the healthcare provider against whom the claim is asserted.
TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). Appellee timely served an expert report together
with an attached curriculum vitae from Dr. Cecil-Arredondo, a board-certified orthopedic surgeon,
with experience performing laminectomies and epidural analgesia for pain management. Appellee
later served a second report and curriculum vitae from Dr. Sabri Malek, a board-certified
anesthesiologist, with substantial experience in labor epidural catheter placement. Both reports
were substantively the same. In their respective reports, both physicians stated that not properly
placing or removing the catheter was a breach of the standard of care, the improper placement or
removal of the catheter caused Appellee to need laminectomy surgery, and she is at risk for future
health complications as a result of the portion of catheter remaining in her spine. Both physicians
stated without additional information, neither would be able to determine whether the catheter was
placed or removed correctly.
In response, Appellant filed objections and motions to dismiss for each report claiming
they were deficient for failing to establish the standard of care, how Appellant breached the
standard of care, and how that breach led to Appellee’s injuries. Following a hearing in which
Appellant reurged her objections, the trial court issued an order granting Appellant’s objections to
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Appellee’s experts’ reports. Specifically, the trial court found Dr. Arredondo’s report failed to: (1)
establish his qualifications to opine on the standard of care applicable to a CRNA placing and
removing an epidural catheter; (2) adequately identify the standard of care for each defendant; and
(3) differentiate between the two defendants regarding breach and causation. The trial court further
found Dr. Malek’s report failed to: (1) adequately identify the standard of care for each defendant;
and (2) differentiate between the two defendants regarding breach and causation. Accordingly, the
trial court granted Appellee thirty days to cure the deficiencies in her experts’ reports and file new
or amended reports. Appellant now brings an interlocutory appeal of the trial court’s order alleging
the expert reports provided by Appellee were so deficient as to not qualify as expert reports,
meaning Appellee failed to serve Appellant with an expert report and therefore the trial court erred
by failing to dismiss Appellee’s claims.
DISCUSSION
Appellant argues the trial court abused its discretion by failing to dismiss Appellee’s
lawsuit and award attorney’s fees and court costs, because the reports provided by Drs. Arredondo
and Malek were so substantially deficient as to not qualify as expert reports. Appellant asserts Drs.
Arredondo and Malek’s reports are substantially deficient in two ways. First, the reports do not
contain opinions that there is a meritorious claim against Appellant. Second, the reports do not
implicate Appellant’s conduct.
Standard of Review and Applicable Law
We review the trial court’s ruling on a motion to dismiss for an inadequate expert report
under an abuse of discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873, 875 (Tex. 2001); Gonzalez v. Padilla, 485 S.W.3d 236, 242 (Tex.App.—El Paso
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2016, no pet.). We defer to the factual determinations of the trial court and review the trial court’s
legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009).
The Texas Medical Liability Act requires an individual alleging a health care liability claim
to present one or more expert reports to the healthcare provider against whom the claim is asserted
within 120 days of filing the original petition. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a). A
valid expert report will provide a summary of the expert’s opinions regarding: (1) the applicable
standards of care; (2) the manner in which the care rendered by the health care provider failed to
meet the standards; and (3) the causal relationship between that failure and the injury, harm, or
damages claimed. Palacios, 46 S.W.3d at 877-78; TEX.CIV.PRAC.&REM.CODE ANN.
§ 74.351(r)(6). The Texas Supreme Court has determined, at a minimum, an expert report must
contain the opinion of an individual with expertise that the claim has merit, and if the defendant’s
conduct is implicated. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012)(citing Scoresby v.
Santillan, 346 S.W.3d 546, 557 (Tex. 2011)). If a report does not meet this standard, then the trial
court must dismiss the claim if the defendant has moved for dismissal. Loaisiga, 379 S.W.3d at
260; TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(b).
Analysis
As a preliminary matter, we must address whether Appellant has preserved her error for
review. Appellant contends the trial court erred when it failed to dismiss Appellee’s claim.
Appellant argues the reports filed by Appellee are so substantially deficient they are not expert
reports because the reports do not opine whether there is a meritorious claim against Appellant and
do not implicate Appellant’s conduct.
In the underlying proceedings, Appellant filed separate objections and motions to dismiss
in response to Drs. Arredondo and Malek’s reports. In each objection, Appellant argued the report
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failed to identify Appellant by name, failed to establish the standard of care, how Appellant
breached the standard of care, and how that breach led to Appellee’s injury. Each objection
concluded with a motion to dismiss. During the dismissal hearing, Appellant’s counsel reiterated
the same objections, stating “I don’t feel like it’s being done in good faith because if I go through
both reports . . . . They don’t even address the standard of care at all. There’s not a mention of
what Ms. Thompson, certified nurse anesthetist, should have done.” At no point during the
underlying proceedings, either by motion or in the hearing did Appellant raise the issue of whether
the reports fail to constitute expert reports.
“To preserve a complaint for appellate review, a party must make a timely request,
objection, or motion with sufficient specificity to apprise the trial court of the complaint and obtain
an adverse ruling thereon.” In re N.T., 335 S.W.3d 660, 669 (Tex.App.—El Paso 2011, no pet.)
(citing TEX.R.APP.P. 33.1(a)). Further, a “complaint on appeal that does not comport with the
party’s objection at trial is not preserved for review.” Martinez Jardon v. Pfister, 593 S.W.3d 810,
831 (Tex.App.—El Paso 2019, no pet.).
Our review of the record reveals Appellant fails to raise the issue of whether the reports
provided by Drs. Arredondo and Malek were so substantially deficient as to not qualify as expert
reports. Appellant did contend the reports were inadequate but did not apprise the trial court the
proffered reports were legally equivalent to no report. Appellant’s only objections were that the
reports were deficient for failing to identify Appellant by name, state the standard of care,
Appellant’s breach of that standard, and the causal relationship between the breach and Appellee’s
harm. Appellant did not raise an objection that the expert reports failed to opine whether Appellee’s
case has merit or implicated Appellant’s conduct. Appellant’s argument that the trial court erred
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in failing to dismiss the case because the report did not implicate Appellant or directly opine on
the merits is not preserved.
Given Appellant failed to raise the issue the expert reports did not constitute “expert
reports” in the trial court, her sole issue on appeal does not comport with the objections she made
in the trial court. As a result, the trial court was not aware of or afforded an opportunity to rule on
Appellant’s argument. Appellant has failed to preserve her issue for our review. TEX.R.APP.P.
33.1. Consequently, we hold Appellant has waived her sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
September 29, 2021
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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