dissenting and concurring.
I respectfully dissent from the majority’s conclusion as to appellants’ first issue, but join in the majority’s conclusion on their second issue. Therefore, I would reverse the trial court’s dismissal of appellants’ medical malpractice claim but affirm its dismissal of their claims based on fraud and breach of a fiduciary duty.
What is an Expert’s Report Under Article 4590i?
As noted by the majority, section 13.01(d)(1) of article 4590i requires a claimant to provide opposing parties with an expert report within 180 days of filing a claim. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1) (Vernon Supp.2000). If a healthcare claimant fails to provide such a report, the trial court may dismiss the claimant’s suit. See id. § 13.01(e)(3). Whüe I agree with the majority that a trial court’s dismissal of a claim on this basis should be treated as a sanction and therefore should be reviewed under an abuse-of-discretion standard, I do not agree with the majority’s conclusion. See Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.— Fort Worth 1998, no pet.).
Here, appebees’ motion to strike appellants’ 13.01(d) expert report and to dismiss was based on its alleged inadequacy. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(e)(3), ffi, (r)(6).
Section 13.01(r)(6) of the medical babibty act defines an expert report as:
*879a written report by an expert that provides a fair summary of the expert’s opinion as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 13.01(r)(6). Additionally, section 13.01(j) provides:
Nothing in this section shall be construed to require the filing of an expert report regarding any issue other than an issue relating to liability or causation.
Id. § 13.01®.
And subsection (Z) sets forth the parameters under which opposing counsel might challenge the adequacy of an expert report.
A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.
Id. § 13.01(Z). The majority agrees with appellees’ challenge to the adequacy of the report because it “does not address a standard of care, deviation from that standard, or that a deviation from the standard caused injury or damages.” While there are several cases that deal with the failure to timely file an expert report, there are relatively few cases that deal with the adequacy of the report in light of subsection (Z)’s good faith attempt to comply.
I believe that this expert report shows a good faith effort to comply. First, the report is not being filed in a vacuum but against the backdrop of the pleadings that set forth the basic factual allegations to show a deviation from a standard of care that resulted in injuries. Appellants claim in their original petition:
The Defendants were negligent in their treatment of Plaintiff in the following respects:
1. In failing to take a proper medical history.
2. In negligently failing to treat Plaintiff for the symptoms [of] his arm and chest pain.
3. In failing to perform an EKG and laboratory tests, as would be indicated by his history and condition.
4. In failing to investigate all probable causes of Plaintiffs neck, arm, and chest pain, nausea and vomiting.
5. In failing to promptly diagnose and treat the myocardial infarction.
6. In releasing Plaintiff to return home without properly testing him for all symptoms.
7. In releasing Plaintiff to return home while he was in acute pain.
8. Defendants were in all probability negligent in other respects in addition to the above and foregoing and Plaintiffs reserve the right to amend their pleadings to conform to the evidence.
This information provides a backdrop against which the report may be viewed.
Second, the report reveals enough information to show that the patient was improperly diagnosed at Huguley and that the failure to diagnose departed from an appropriate standard of care. The report shows it was based on personal knowledge of the expert’s interview of the patient and family, laboratory tests run and evaluated, along with an EKG. While not explaining the specific standard of care, the expert clearly states that the standard was breached.
In Palacios v. American Transitional Care Ctrs., Inc., the Houston Court of Appeals was faced with reviewing an adequacy challenge to an expert’s report. 4 S.W.3d 857, 859-60 (Tex.App. — Houston [1st Dist.] 1999, pet. filed). In reversing the trial court’s dismissal of the plaintiffs’ claims, the appellate court, applying the *880summary judgment standard of review instead of abuse of discretion, noted that the section 13.01(r)(6) expert report was designed to weed out frivolous suits in the early stages of litigation. The controlling issue is not whether the report provided the requisite “fair summary” but whether the report showed a good faith effort at meeting section 13.01(r)(6)’s requirements. See id. at 862. The appellate court concluded that the statements on the report were a good faith effort to meet section 13.01(r)(6)’s requirements in that it was directed toward the hospital and stated that the hospital’s actions fell below the accepted standard of care. See id. at 861. The report noted that a hospital should have taken precautions for a patient who fell from his hospital bed and suffered yet a second brain injury when he fell due to his history of falling. See id. Because precautions to prevent his fall were not taken the standard of care had not been met. See id. at 863.
The San Antonio Court of Appeals has applied an abuse-of-discretion standard to appellate review of a dismissal of a healthcare liability claim due to an inadequate expert report. See Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727 (Tex. App. — San Antonio 1999, no pet.). In Schorp the plaintiffs healthcare claim was dismissed because the “anonymous” report failed to state the name and qualifications of the expert and failed to attach the required curriculum vitae. Thus, the court reasoned there was no way to determine whether the plaintiffs expert was qualified. See id. at 732.
In yet another case, the Houston 14 th Court of Appeals upheld a trial court’s decision to strike two “éxpert letters or reports” noting that the letters failed to even show who was drafting the letter but appeared to be a letter requesting an expert opinion by marking a “yes” or “no” to the question of whether the defendant was negligent in his care of the plaintiff. Tibbetts v. Gagliardi, 2 S.W.3d 659, 662 (Tex. App. — Houston [14 th Dist.] 1999, pet. denied). Plaintiffs counsel filed an affidavit in support of her client’s claim that these “yes” and “no” letters were a good faith effort to comply with the statute. Id. Her affidavit merely stated, however, that it was an oversight not to be aware of the definition of an expert report and that she was not consciously indifferent. See id. at 663. The court of appeals affirmed the dismissal and held that the expert letters were not a good faith attempt to comply with the statutory definition of an expert report. See id.
Here the expert report clearly identifies the expert; lists his medical training; lists his certifications; identifies the lab results and other tests that he administered to the patient and reviewed; identifies the hospital to which the complaint is directed; and, identifies the treating physician and that his care fell below the acceptable standard of care for a patient with an acute myocardial infarction. I believe this is enough to be a good faith effort to give a fair summary of the expert’s opinion. This report goes much further than the reports that were struck in Schorp or in Tibbetts and is more like the report in Palacios. In light of an abuse-of-discretion standard, I would hold that the report was a good faith attempt to give a fair summary and would therefore hold the trial court abused its discretion in striking the report and dismissing appellant’s healthcare claim. In all other respects, I agree with the majority opinion.