Tyler Scoresby, M.D. v. Catarino Santillan, Individually and as Next Friend of Samuel Santillan, a Minor

IN THE SUPREME COURT OF TEXAS

════════════

No. 09-0497

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Tyler Scoresby, M.D.,

Petitioner,

v .

Catarino Santillan , individually and as next friend of Samuel Santillan , a minor, Respondent

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Second District of

Texas

════════════════════════════════════════════════════

Argued November 9,

2010

Justice Hecht delivered the

opinion of the Court, in which Chief

Justice Jefferson , Justice

Medina , Justice Green , Justice Willett , Justice Guzman , and Justice Lehrmann joined.

Justice Willett filed a concurring opinion.

Justice Johnson filed a

dissenting opinion, in which Justice

Wainwright joined.

The Medical Liability Act 1 entitles a defendant to dismissal of a

health care liability claim if, within 120 days of the date suit was filed, he

is not served with an expert report showing that the claim against him has

merit. 2 The trial court’s refusal to

dismiss is immediately appealable. 3 The Act sets specific requirements

for an adequate report 4 and mandates that “an objective good

faith effort [be made] to comply” with them, 5 but it also authorizes the trial court to

give a plaintiff who meets the 120-day deadline an additional thirty days in

which to cure a “deficiency” in the elements of the report. 6 The trial court should err on the

side of granting the additional time 7 and must grant it if the deficiencies are

curable. 8 The defendant cannot seek review of

this ruling 9 or appeal the court’s concomitant refusal

to dismiss the claim before the thirty-day period has expired. 1 0

While the Act thus contemplates that a document can be considered an expert

report despite its deficiencies, the Act does not suggest that a document

utterly devoid of substantive content will qualify as an expert report.

Based on the Act’s text and stated purposes, we hold that a document qualifies

as an expert report if it contains a statement of opinion by an individual with

expertise indicating that the claim asserted by the plaintiff against the

defendant has merit. An individual’s lack of relevant qualifications and

an opinion’s inadequacies are deficiencies the plaintiff should be given an

opportunity to cure if it is possible to do so. This lenient standard

avoids the expense and delay of multiple interlocutory appeals and assures a

claimant a fair opportunity to demonstrate that his claim is not

frivolous. The expert report before us meets this test, and therefore the

trial court’s order allowing thirty days to cure

deficiencies and denying the defendants’ motions to dismiss were not

appealable. Accordingly, we affirm the court of appeals’ judgment

dismissing the appeal for want of jurisdiction. 1 1

I

On behalf of Samuel Santillan , a minor, Catarino Santillan sued Dr. Tyler

Scoresby and Dr. Yadranko Ducic , two otolaryngology (ENT) surgeons (collectively, “the

Physicians”), alleging that they negligently performed a medial maxillectomy to remove growths from Samuel’s sinus

cavity. Santillan asserts that an incision made

too far into Samuel’s brain lacerated a blood vessel and required surgery to

stop the bleeding, resulting in brain damage and partial paralysis.

To satisfy the Act’s expert report requirement, Santillan timely served the Physicians with a letter from

Dr. Charles D. Marable to Santillan’s attorney. The letter did not attach Marable’s curriculum vitae or describe his credentials or

experience other than to state that he is “a Board-Certified neurologist”.

From having examined Samuel and reviewed his medical records, Marable explained his condition as follows:

The patient was initially seen on 8/3/07. He is now a

17-year-old Latin-American male who was taken to John Peter Smith on 1/17/06 for

a preoperative diagnosis of maxillary sinus neoplasm under the care of Dr. Yadro Ducic , M.D., an ENT

physician, and another surgeon, Dr. Tyler Scorsby

[sic], with procedures of left mediomaxillectomy

[sic], excision of neoplasm of the maxilla, calvarial

bone growth and reconstruction of maxilla and excision of tumor of pterygopalatin [sic] structures. During the procedure,

an incision was made in the right parietal region in a coronal fashion and

carried down the pericranium . As a result of

this, there was cortical laceration with active bleeding from several medium

size vessels in the area.

According to Dr. Scorsby’s [sic]

note, the patient awoke in the operating room without complications and was

taken to the post anesthesia care unit. However, on awakening he did not

have a normal neurologic exam, in fact, had a right-sided hemiparesis , and due to the progression of his neurological

deficit, increasing intercerebral hemorrhage was noted

by CT scanning.

He was taken back to the operating suite on 1/18/06 by Dr.

Gregory Smith, D.O., a neurosurgeon. Dr. Smith’s

preoperative diagnosis was that of expanding inter­cerebral hematoma, status post split thickness

skull harvesting, with postoperative diagnosis of expanding intercerebral hematoma and intercerebral hematoma skull perforation. Procedure

performed was that of a left parietal craniotomy with evacuation of intercerebral hematoma, repair and hemostasis . Dr. Smith’s operative report states there

was cortical laceration with active bleeding from several medium-sized vessels

in the left parietal area, which were then cauterized with bipolar cautery for hemostatis . An

underlying intercerebral hematoma was entered and

eventually evacuated successfully with suction.

*

* *

It appears he was in the hospital until 2/11/06, and at that

time was transferred to HealthSouth Rehabilitation Hospital, Cityview , admitted on 2/11/06, date of discharge

2/21/06. He was discharged with the diagnosis of left parietal hemorrhage,

maxillary sinus tumor resection, right hemiparesis ,

persistent pain, apraxia , seizure prophylaxis, peptic

ulcer prophylaxis and right hemisensory deficit.

During his stay at HealthSouth Hospital he progressed in all areas of

mobilization and self-care. He was ambulating greater than 400', but still

had significant right upper extremity weakness and spasticity. It was then

deemed necessary to transfer him to an outpatient brain injury program and work

on his strength, cognition and overall mobilization. . . .

He was seen on 8/3/07. He still has weakness of his

right arm and leg. Walking seems to still be a

problem. . . . He is still having headaches in the

occipital region.

Marable’s letter concluded:

As a Board-Certified neurologist, my opinion is that Dr. Ducic violated the standards of care, as well as Dr. Scorsby [sic], and as a result his damages are that of a

right-sided hemiparesis with possibility of seizure

foci in the future. Although he has not had any seizures, he certainly

does meet the criteria for a seizure disorder. Had it not been for Dr.

Ducic and Dr. Scorsby’s

[sic] negligent activity in causing cortical laceration of this patient’s left

parietal lobe, he would not have needed further hospitalization at John Peter

Smith or the ICU therapy, or going to HealthSouth Rehab, and is now left with a

right hemiparesis at a young

age.

The Physicians each timely objected that the letter was inadequate as an expert

report, asserting that: ( i ) a neurologist is not

qualified to testify regarding the standard of care for an ENT surgeon in

performing the procedures the Physicians performed on Samuel; (ii) Marable’s opinions regarding the Physicians’ standard of

care, breach, and causal relationship to Samuel’s injuries were conclusory and directed to Scoresby and Ducic collectively rather than individually; and (iii) Marable’s curriculum vitae was not included, as the Act

requires. 1 2 The Physicians argued Marable’s letter was so woefully deficient, it did not even

qualify as an expert report under the Act to meet the 120-day deadline.

They moved the court to dismiss the case with prejudice and award them their

reasonable attorney fees and costs.

After the 120-day deadline, Santillan served the

Physicians with Marable’s curriculum vitae and his

amended report, in which he added that “the applicable standard of care would

have been to perform the procedure of a calvaria bone

transplant without nicking or lacerating the parietal cortex [and] to get the

appropriate surgeon, such as a neurosurgeon, instead of an ENT physician to do a

calvaria bone grafting procedure”, and that “Dr. Ducic and Dr. Scorsby

[sic] . . . failed to perform a careful and well-planned surgery,

causing a laceration of the cortical hemisphere, causing substantial

bleeding”. At the hearing on the Physicians’ objections and motions, the

trial court refused to consider Marable’s

post-deadline amended report. The Physicians complained that Marable’s original letter did not show that he had

sufficient qualifications and experience to render an opinion regarding the

surgery, and did not define the standard of care, state how it was breached, or

explain how a breach resulted in Samuel’s injuries. The Physicians

acknowledged that Samuel suffered a lacerated artery but argued that such things

are inevitable in surgery, no matter how carefully it is performed, and do not

necessarily indicate a breach of the standard of care. The trial court

denied the motions to dismiss and granted Santillan a

thirty-day extension to cure deficiencies in the report.

The Physicians appealed, persisting in their contention that Marable’s letter was too inadequate to qualify as an expert

report; therefore, Santillan had not met the 120-day

deadline; and consequently, the Act did not permit an additional thirty days to

cure the deficiencies but instead required that the case be dismissed. 1 3 The court of appeals construed our

analysis in Ogletree v. Matthews 1 4 to mean that deficiencies in a document

tendered as an expert report will not preclude it from qualifying as

such. 1 5 The court concluded that an

interlocutory appeal in these circumstances was not permitted. 1 6

We granted the Physicians’ petitions for review. 1 7

While this appeal has been pending, the Physicians have lodged essentially the

same objections to Santillan’s amended report as they

made to the original report. They have also moved again for dismissal,

attorney fees, and costs. The trial court has not ruled on those

objections and motions.

II

The Legislature enacted the Medical Liability and Insurance Improvement Act

(“MLIIA”) in 1977 1 8 in response to “a medical malpractice

insurance crisis in the State of Texas” that was having “a material adverse

effect on the delivery of medical and health care in Texas, including

significant reductions of availability of medical and health care services to

the people of Texas and a likelihood of further reductions in the

future”. 1 9 The Legislature found that the

crisis had been created by an “inordinate[]” increase in the volume and expense

of health care liability claims. 2 0 Concerned that “the direct cost of

medical care to the patient and public of Texas ha[d] materially

increased”, 2 1 the Legislature’s purpose in the MLIIA,

expressly stated, was to

reduce excessive frequency and severity of health care

liability claims[,] . . . decrease the cost of those claims[,]

. . . do so in a manner that will not unduly restrict a claimant’s

rights any more than necessary to deal with the crisis[, and thereby]

. . . make affordable medical and health care more accessible and

available to the citizens of Texas . . . . 2 2

In 2003, the

Legislature replaced the MLIIA with the Medical Liability Act, repeating its

1977 findings and statements of purpose. 2 3

Fundamentally, the goal of the MLIIA and the Medical Liability Act has been to

make health care in Texas more available and less expensive by reducing the cost

of health care liability claims. To that end, both statutes have sought to

deter frivolous lawsuits by requiring a claimant early in litigation to produce

the opinion of a suitable expert that his claim has merit. “[E] liciting an expert’s opinions early in the litigation [is]

an obvious place to start in attempting to reduce frivolous lawsuits” 2 4 and thereby reduce the costs of

claims.

The Legislature first added an expert report requirement to the MLIIA in 1993,

then strengthened it over the next ten years, finally

allowing interlocutory appeals to ensure uniform enforcement. We look

first at the requirement, then the appeal, and finally at their proper operation

together.

A

The 1993 amendment to the MLIIA required a plaintiff, within ninety days of

filing suit, either to file an affidavit that he had obtained a suitable

expert’s opinion that his claim had merit or to post a $2,000 bond or cash

deposit. 2 5 The trial court could extend the

deadline for up to ninety days “for good cause shown”. 2 6 A plaintiff who failed to comply

risked dismissal without prejudice and liability for costs, again, except for

“good cause . . . shown”. 2 7

In 1995, the Legislature required that the expert report itself be filed and

raised the amount of the bond or deposit posted in lieu of a report to

$5,000. 2 8 The amendment retained the

ninety-day initial deadline but added that even if a bond or deposit were

posted, an expert report and curriculum vitae must be filed within 180 days of

initiating suit. 2 9 The amendment specified the

qualifications the expert was required to have 3 0 and defined the report as one “ provid [ ing ] a fair summary of the

expert’s opinions . . . regarding 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.” 3 1 The failure to make “a good faith

effort” to comply 3 2 could result in dismissal with prejudice

and liability for attorney fees as well as costs. 3 3 But if the failure — even missing

the deadline completely 3 4 — was “not intentional or the result of

conscious indifference but was the result of an accident or mistake,” the trial

court was required to grant “a grace period of 30 days to permit the claimant to

comply”. 3 5

The Medical Liability Act, adopted in 2003 and now in effect, eliminates the

bond/deposit alternative, shortens the deadline for the expert report and

curriculum vitae to 120 days (unless extended by agreement), and requires

service rather than filing. 3 6 The Act retains the definition of

an expert report 3 7 but is more specific about an expert’s

qualifications. 3 8

The Act now distinguishes between missing a deadline altogether and serving an

inadequate report. Section 74.351(b) provides that

[ i ]f, as to a defendant . . . , an expert report has not

been served [by the deadline], the court, on the motion of the [defendant],

shall, subject to Subsection (c), enter an order that:

(1) awards [the defendant] reasonable attorney’s fees and costs

of court . . . ; and

(2) dismisses the claim with respect to the [defendant] with

prejudice to the refiling of the claim. 3 9

Under section

74.351( l ), the same consequences attend serving an inadequate report that

“does not represent an objective good faith effort” to comply with the Act’s

requirements. 4 0 But before those consequences are

imposed, the Act provides an opportunity for

deficiencies to be cured. Section 74.351(a) requires that any objection to

the sufficiency of a report be lodged within twenty-one days of service , 4 1 and section 74.351(c) provides:

If an expert report has not been served

[by the deadline] because elements of the report are found deficient, the court

may grant one 30-day extension to the claimant in order to cure the

deficiency.” 4 2

The Act’s thirty-day extension to cure deficiencies replaces the 1995 law’s

thirty-day “grace period” for “accident or mistake”, shifting the focus from the

claimant’s conduct to the report’s contents. But the importance of an

appropriate delay in finally dismissing a claim for want of an adequate report

is undiminished. The purpose of the expert report requirement is to deter

frivolous claims , 4 3 not to dispose of claims regardless of

their merits. “The Legislature has determined that failing to timely file an

expert report, or filing a report that does not evidence a good-faith effort to

comply with the definition of an expert report, means that the claim is either

frivolous, or at best has been brought prematurely.” 4 4 But the Legislature has likewise

recognized that when an expert report can be cured in thirty days, the claim is

not frivolous. It must be remembered that “‘[t]here are constitutional

limitations upon the power of courts . . . to

dismiss an action without affording a party the opportunity for a hearing on the

merits of his cause’”, 4 5 and those limitations constrain the

Legislature no less in requiring dismissal.

For these reasons, we have held that trial courts should be lenient in granting

thirty-day extensions and must do so if deficiencies in an expert report can be

cured within the thirty-day period. This “minimal delay before a report’s

sufficiency may again be challenged and the case dismissed, if

warranted” 4 6 does not impair the purpose of the

Act.

B

Under the MLIIA, there was no interlocutory appeal from the denial of a motion

to dismiss a health care liability claim for failure to comply with the expert

report requirement, and we did not make clear until 2008 that review by mandamus

was available. 4 7 In adopting the Medical Liability

Act in 2003, the Legislature permitted an interlocutory appeal from an order

denying “all or part of the relief sought by a motion under Section 74.351(b),

except that an appeal may not be taken from an order granting an extension under

Section 74.351”. 4 8 In a series of cases, we have

explained the limits of this review mechanism.

If an expert report is timely served, even without a curriculum vitae, we held

in Ogletree v. Matthews that the trial

court’s denial of a motion to dismiss, asserting the report’s inadequacy, cannot

be appealed if the court also grants a thirty-day extension to cure

deficiencies. 4 9 “This prohibition,” we said, “is

both logical and practical.” 5 0 Otherwise,

the

court of appeals would address the report’s sufficiency while its deficiencies

were presumably being cured at the trial court level, an illogical and wasteful

result. Moreover, because the Legislature authorized a single, thirty day

extension for deficient reports, health care providers face only a minimal delay

before a report’s sufficiency may again be challenged and the case dismissed, if

warranted. 5 1

If after an

extension has been granted, the defendant again moves to dismiss, we held in

Lewis v. Funderburk that a denial of the motion

is appealable. 5 2

If no expert report is timely served, we held in Badiga v. Lopez that the denial of a motion to

dismiss is appealable, even if the court grants an extension. 5 3 The Medical Liability Act, unlike

the MLIIA, does not authorize an extension if no report is timely served.

Granting an extension not authorized by section 74.351 does not preclude

appeal. But because an appeal is available, we held in In re Watkins that review by mandamus is not

available. 5 4

The present case requires us to determine whether a document served on a

defendant can be so lacking in substance that it does not qualify as an expert

report, and therefore an immediate appeal from the denial of a motion to dismiss

is available under Badiga .

C

The Act defines an expert report to be

a written report by an expert that provides a fair summary of

the expert’s opinions as of the date of the report regarding 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. 5 5

The

qualifications and experience necessary for an expert are prescribed in great

detail. 5 6 The adequacy of a report is

determined by whether it “represent[s] an objective good faith effort to comply”

with the statutory definition. 5 7 As we have explained:

In setting out the expert’s opinions on each of those

elements, the report must provide enough information to fulfill two purposes if

it is to constitute a good-faith effort. First, the report must inform the

defendant of the specific conduct the plaintiff has called into question.

Second, and equally important, the report must provide a basis for the trial

court to conclude that the claims have merit. 5 8

No particular

words 5 9 or formality 6 0 are required, but bare conclusions will

not suffice. 6 1 The report must address all the

elements , 6 2 and omissions may not be supplied by

inference. 6 3

But as we have seen, the Act allows a claimant a thirty-day period to cure

deficiencies before the trial court finally determines that the report is

inadequate and the claim must be dismissed. In Ogletree , we rejected the argument that a deficient

report is no report. 6 4 There, the claimant provided the

opinion of a radiologist, without a curriculum vitae, on a urologist’s standard

of care. 6 5 Dr. Ogletree argued that the report was really no report at all,

but we held that despite its shortcomings, it “implicated Dr. Ogletree’s conduct”, so that the trial court was authorized

to grant a thirty-day extension, and an appeal was prohibited. 6 6

Ogletree ’s holding, though sound, can be

extended only so far. To stretch the meaning of deficient to include a

sheet of paper with the two words, “expert report”, written on it would mock the

Act’s requirements. The expert report in Lewis was substantively no

more than that — one physician’s thank-you letter to another for referring the

patient. 6 7 In determining where to draw the

line, we are guided by two considerations. One is that the Act’s principal

purpose is to reduce the expense of health care liability claims. The

Legislature could reasonably have determined that that purpose is served by an

interlocutory appeal from the denial of a motion to dismiss for want of an

adequate expert report, but as we observed in Ogletree , permitting two such appeals — one before

the thirty-day cure period and one after — is simply wasteful. The other

consideration is the goal of the Act’s expert report requirement: to deter

frivolous claims. An inadequate expert report does not indicate a

frivolous claim if the report’s deficiencies are readily curable.

We conclude that a thirty-day extension to cure deficiencies in an expert report

may be granted if the report is served by the statutory deadline, if it contains

the opinion of an individual with expertise that the claim has merit, and if the

defendant’s conduct is implicated. We recognize that this is a minimal

standard, but we think it is necessary if multiple interlocutory appeals are to

be avoided, and appropriate to give a claimant the opportunity provided by the

Act’s thirty-day extension to show that a claim has merit. All

deficiencies, whether in the expert’s opinions or qualifications, are subject to

being cured before an appeal may be taken from the trial court’s refusal to

dismiss the case.

III

Dr. Marable’s letter in this case easily meets this

standard. Claiming expertise as a neurologist, he described the injury to

Samuel’s brain, ascribed it to the Physicians’ breach of the standards of care,

and stated that their breach caused Samuel’s partial paralysis and other

lingering debilities. As an expert report, Dr. Marable’s letter was deficient. For example, it did

not state the standard of care but only implied that it was inconsistent with

the Physicians’ conduct. But there is no question that in his opinion,

Santillan’s claim against the Physicians has

merit.

The dissent argues that Dr. Marable was not qualified

to give an opinion about the Physicians’ conduct because he is only a

neurologist, not a surgeon, and therefore his letter is so deficient it does not

qualify as an expert report. The Act requires that Dr. Marable’s knowledge, training or experience, and practice be

“relevant” to Santillan’s claim. 6 8 We

express no view on the adequacy of Dr. Marable’s

qualifications; the trial court did not specifically address the matter, and it

is premature for us to consider it. But the dissent’s arguments, we

believe, show the wisdom of our approach in determining what qualifies as an

expert report.

The dissent acknowledges that, as in Ogletree ,

a radiologist is qualified to opine on “whether the urologist should have

involved radiology-related devices and techniques (the specialty in which the

expert was qualified) in treating the patient and whether the failure to do so

resulted in injury.” 6 9 In that instance, the dissent

contends, there is an “apparent closely-related connection” between radiology

and neurology. 7 0 The dissent sees no such

connection between neurology and ENT surgery that damages the brain. 7 1 But surely a neurologist’s

expertise is relevant in explaining the connection between the Physicians’

injury to blood vessels during surgery and the hemiparesis and weakness Simon

suffered. What further relevance that expertise has to Santillan’s claim should first be addressed by the trial

court. In no event, however, do we think a claimant’s opportunity to cure

and a defendant’s immediate right to appeal should turn on such fine

distinctions, either in an expert’s qualifications or in his opinions.

This case also demonstrates the difficulty with any more stringent

standard. The trial court denied the Physicians’ motions to dismiss and

ordered that Santillan have a thirty-day extension to

cure deficiencies in Dr. Marable’s report nearly three

years ago. Santillan had already served an

amended report, in response to which the Physicians had filed renewed objections

and again moved to dismiss the case. Now that we have dismissed this

appeal for want of jurisdiction, the trial court will rule on the objections to

the amended report and the motions to dismiss. Whatever the ruling,

another appeal will undoubtedly follow. Our holding today will all but

eliminate the first, wasteful appeal. Just as importantly, it will help

assure that a claimant, after being apprised of a defendant’s objections to an

expert report, and having had an opportunity to discuss those objections at a

hearing before the trial court, will have a fair opportunity to cure any

deficiencies and demonstrate that his claim is not frivolous and should be

determined on the merits.

*

* *

Accordingly, the judgment of the court of appeals dismissing this appeal for

want of jurisdiction is

Affirmed .

Nathan L. Hecht

Justice

Opinion Delivered: July 1, 2011

1 Tex. Civ. Prac. & Rem. Code

§§ 74.001-.507.

All references to the Act are to these provisions.

2 Id .

§ 74.351(b).

3

Id .

§ 51.014(a )( 9); Badiga v. Lopez , 274 S.W.3d 681, 685 (Tex.

2009).

4 Tex. Civ. Prac. & Rem.

Code § 74.351(r )( 6).

5 Id .

§ 74.351( l ).

6 Id .

§ 74.351(c).

7

Samlowski v. Wooten , 332

S.W.3d 404, 411 (Tex. 2011) (plurality op. of Medina, J., joined by Jefferson,

C.J., and Hecht, J.) (“‘[T] rial courts should err on

the side of granting claimants’ extensions to show the merits of their claims.’”

( quoting id . at 416 (Guzman, J., joined by

Lehrmann, J., concurring in the judgment))).

8

Id . at

411 (plurality op. of Medina, J., joined by Jefferson, C.J., and Hecht, J.);

id . at 416 (Guzman, J., joined by Lehrmann, J.,

concurring in the judgment).

9 Tex. Civ. Prac. & Rem.

Code § 51.014(a )( 9) (no interlocutory appeal); In re Watkins , 279

S.W.3d 633, 634 (Tex. 2009) (orig. proceeding) (no review by

mandamus).

10 Ogletree v. Matthews ,

262 S.W.3d 316, 321 (Tex. 2007).

11 287 S.W.3d 319 (Tex. App.–Fort Worth

2009).

12 Tex. Civ. Prac. & Rem. Code

§ 74.351(a).

13 287 S.W.3d at 320 .

14 262 S.W.3d 316 .

15 287 S.W.3d at 324 .

16 Id. at

325.

17 53 Tex. Sup.

Ct. J. 1061 (Aug. 27, 2010). We have jurisdiction to determine whether the

court of appeals had jurisdiction. Tex. Dep’t of

Criminal Justice v. Simons , 140 S.W.3d 338, 343 (Tex.

2004).

18 Act of May

30, 1977, 65th Leg., R.S., ch . 817, 1977 Tex. Gen.

Laws 2039 , formerly Tex. Rev. Civ. Stat. Ann.

art. 4590i [hereinafter 1977

Act].

19 1977 Act,

§ 1.02(a )( 5)-(6).

20 1977 Act,

§ 1.02(a )( 1)-(5).

21 1977 Act,

§ 1.02(a )( 8).

22 1977 Act,

§ 1.02(b )( 1)-(3), (5).

23 Act of June

2, 2003, 78th Leg., R.S., ch . 204, §§ 10.01,

10.09, 10.11, 2003 Tex. Gen. Laws 847 , 864-882, 884-885.

24 Am. Transitional Care Ctrs . of

Tex., Inc. v. Palacios , 46 S.W.3d 873,

877 (Tex. 2001).

25 Act of May

25, 1993, 73rd Leg., R.S., ch . 625, § 3, 1993

Tex. Gen. Laws 2347 , 2347, formerly Tex.

Rev. Civ. Stat. Ann.

art. 4590i, § 13.01(a)-(b)

[hereinafter 1993 Act].

26 1993 Act,

former art. 4590i, § 13.01(d).

27 1993 Act,

former art. 4590i, § 13.01(c).

28 Act of May 5,

1995, 74th Leg., R.S., ch . 140, § 1, 1995 Tex. Gen.

Laws 985 , 986, formerly Tex. Rev. Civ. Stat. Ann.

art. 4590i, § 13.01(a) [hereinafter

1995 Act].

29 1995 Act,

former art. 4590i, § 13.01(d).

30 1995 Act,

former art. 4590i, §§ 13.01(r )( 5) &

14.01.

31 1995 Act,

former art. 4590i, § 13.01(r )( 6).

32 1995 Act,

former art. 4590i,

§ 13.01( l ).

33 1995 Act,

former art. 4590i, § 13.01(e).

34 Stockton

v. Offenbach , 336 S.W.3d 610, 616 (Tex.

2011) (“Under article 4590i, a plaintiff could obtain an extension, even when no

report was provided by the deadline, if the plaintiff could show an ‘accident or

mistake’ in failing to furnish a timely report.”).

35 1995 Act,

former art. 4590i, § 13.01(g).

36 Tex. Civ. Prac. & Rem. Code

§ 74.351(a).

37 Id .

§ 74.351(r )( 6).

38 Id .

§§ 74.351(r )( 5), 74.401-.403.

39 Id .

§ 74.351(b).

40 Id .

§ 74.351( l ).

41 Id .

§ 74.351(a).

42 Tex. Civ. Prac. & Rem. Code

§ 74.351(c).

43 Am.

Transitional Care Ctrs . of Tex., Inc. v.

Palacios , 46 S.W.3d 873, 878 (Tex.

2001) (“And one purpose of the expert-report requirement is to deter frivolous

claims.”).

44 Id .

45 TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913, 918 (Tex. 1991) (quoting Societe Internationale

v. Rogers , 357 U.S. 197, 209-210 (1958), citing Hammond Packing Co. v.

Arkansas , 212 U.S. 322, 350-351 (1909), and Hovey v. Elliott , 167

U.S. 409 (1897); accord Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 705-706 (1982)); see also

Walker v. Gutierrez , 111 S.W.3d 56, 66 (Tex. 2003).

46 Ogletree v. Matthews ,

262 S.W.3d 316, 321 (Tex. 2007).

47 In re

McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 461-462 (Tex. 2008) .

48 Tex. Civ. Prac. & Rem.

Code § 51.014(a )( 9); Act of June 2, 2003, 78th Leg., R.S., ch . 204, § 1.03, 2003 Tex. Gen. Laws 847 ,

849.

49 262 S.W.3d at 321 .

50 Id .

51 Id .

52 253 S.W.3d 204, 207-208 (Tex.

2008).

53 274 S.W.3d 681, 685 (Tex. 2009).

54 279 S.W.3d 633, 634 (Tex. 2009).

55 Tex. Civ. Prac. & Rem.

Code § 74.351(r )( 6).

56 Id .

§§ 74.351(r )( 5), 74.401-.403.

57 Id .

§ 74.351( l ).

58

Am. Transitional

Care Ctrs . of Tex., Inc. v.

Palacios , 46 S.W.3d 873, 879 (Tex.

2001).

59 Bowie

Mem’l Hosp. v. Wright , 79 S.W.3d 48, 53 (Tex. 2002) (per curiam ) (“[A] report’s adequacy does not depend on whether

the expert uses any particular ‘magical words.’”).

60 Palacios , 46

S.W.3d at 879 (“The report can be informal in that the information in the report

does not have to meet the same requirements as the evidence offered in a

summary-judgment proceeding or at trial.”).

61 Id . (“A report

that merely states the expert’s conclusions about the standard of care, breach,

and causation does not fulfill these two purposes.”).

62 Id . (“Nor can a

report meet these purposes and thus constitute a good-faith effort if it omits

any of the statutory requirements.”).

63 See Bowie

Mem’l Hosp. , 79 S.W.3d at 53 (“[T]he report must

include the required information within its four corners.”).

64 Ogletree v. Matthews ,

262 S.W.3d 316, 320-321 (Tex. 2007) .

65 Id. at

318.

66 Id. at

321.

67 Lewis v.

Funderburk ,

191 S.W.3d 756, 762-763 (Tex. App.–Waco 2006) (Gray, C.J., dissenting), rev’d , 253 S.W.3d 204 (Tex. 2008).

68 See Tex. Civ. Prac. & Rem. Code

§§ 74.351(r )( 5), 74.401(a), (c).

69 Post at

___.

7 0 Id .

71 Id .