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

> Texas Supreme Court · July 1, 2011 · 54 Tex. Sup. Ct. J. 1413

URL: https://www.frixlaw.com/law-library/cases/2829363

## Case

- **Full name:** Tyler SCORESBY, M.D., Petitioner, v. Catarino SANTILLAN, Individually and as Next Friend of Samuel Santillan, a Minor, Respondent
- **Court:** Texas Supreme Court
- **Decided:** July 1, 2011
- **Citations:** 54 Tex. Sup. Ct. J. 1413; 346 S.W.3d 546; 2011 Tex. LEXIS 516; 2011 WL 2586860
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Hecht, Jefferson, Medina, Green, Willett, Guzman, Lehrmann, Johnson, Wainwright
- **Cited by:** 328 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2829363

## How later opinions describe it (automated extraction)

- explaining that service of a piece of paper that says “expert report” is akin to serving no report at all, subjecting the underlying healthcare-liability claim to dismissal; but a statutorily noncompliant report is merely deficient and subject to cure if it is; (1) timely serv…
- holding that “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” and noting that “Legislature has likewise recognized that when an exp…
- stating “minimal standard” for trial court to grant extension and holding that trial court has discretion to grant extension “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 defe…
- concluding that a statement by an expert that the defendant violated the standard of care and as a result caused damages, without more, warranted an extension rather than dismissal, but 8 noting that a sheet of paper with “expert report” written on it “would mock the Act’s req…
- holding 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”

## Opinion text

IN THE SUPREME COURT OF TEXAS
════════════
No. 09-0497
════════════
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 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2829363. Public record. Not legal advice.