Thomas Kevin Cook, MD and the Craniofacial and Plastic Surgery Center- Houston, Qijun Song, C.S.A. v. Kathleen Broussard

Opinion issued April 21, 2020

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-19-00483-CV

———————————

THOMAS KEVIN COOK, M.D. AND THE CRANIOFACIAL AND

PLASTIC SURGERY CENTER- HOUSTON, QIJUN SONG, C.S.A.,

Appellants

V.

KATHLEEN BROUSSARD, Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2016-52406

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court’s denial of a Chapter 74

motion to dismiss filed by appellants Thomas Kevin Cook, M.D., Craniofacial and

Plastic Surgery Center—Houston, and Qijun Song, C.S.A.1 See TEX. CIV. PRAC. &

REM. CODE § 74.351. In the trial court, they argued that appellee Kathleen

Broussard’s expert reports did not constitute a good faith effort to comply with the

statutory requirements to summarize the applicable standard of care, the breach of

that standard, and the way in which the breach caused the alleged injury. Song

argued that the reports by Dr. Peter R. Kastl and Dr. Wellington Davis III failed to

establish their expertise on the standards of care for surgical assistants, and all the

appellants argued that the reports were conclusory as to causation. The trial court

overruled the defendants’ objections and denied the motions to dismiss.

On appeal, the appellants contend that the trial court abused its discretion by

granting Broussard a second 30-day extension to file a compliant expert report and

by denying their motions to dismiss. We affirm.

Background

Karen Broussard fell and fractured a bone in her eye socket. She underwent

surgery to repair the fracture. Dr. Cook was the surgeon, and Song was the

certified surgical assistant. During the procedure, she suffered a laceration to right

lower eyelid, which significantly affected her tear duct system and necessitated

two subsequent surgeries.

1

We refer to Dr. Cook and the Craniofacial and Plastic Surgery Center—Houston

collectively as “Dr. Cook.”

2

Broussard sued the appellants and, in accordance with the Texas Medical

Liability Act (TMLA),2 she timely served an expert report from Dr. Peter Kastl, an

ophthalmologist. The appellants challenged the adequacy of the report as to his

qualifications as an expert, the standard of care, breach, and causation. The trial

court granted a 30-day extension to cure the report, and Broussard served a

supplemental report from Dr. Kastl. After the trial court denied the appellants’

motion to dismiss, they filed an interlocutory appeal in this court. See Cook v.

Broussard, No. 01-17-00943-CV, 2018 WL 3384638, at *1 (Tex. App.—Houston

[1st Dist.] July 12, 2018, no pet.) (mem. op.).

On appeal, we held that Dr. Kastl’s report failed to show how he, an

ophthalmologist, was qualified to opine on the standard of care for a plastic

surgeon and plastic surgeon’s certified surgical assistant performing surgery on a

fractured facial bone. See id. We reversed the trial court’s denial of the motions to

dismiss. See id. We noted that the Texas Supreme Court had previously held that

an expert’s failure to show how he is qualified to offer an opinion in an expert

report is the kind of deficiency for which the plaintiff should have an opportunity

to cure. See id. at *7 (citing Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex.

2011), and Mangin v. Wendt, 480 S.W.3d 701, 706 (Tex. App.—Houston [1st

Dist.] 2018, no pet.)). We relied on Columbia N. Hills Hospital Subsidiary, L.P. v.

2

See TEX. CIV. PRAC. & REM. CODE §§ 74.001–.507.

3

Alvarez, 382 S.W.3d 619, 624–25 (Tex. App.—Fort Worth 2012, no pet.), for the

proposition that the trial court may be permitted to “grant another thirty-day

extension on remand if we hold that the report is deficient in a different manner

than found by the trial court when granting the original thirty-day extension.”

Thus, we remanded the case to the trial court for further proceedings. The

appellants did not file a motion for rehearing.

On remand, the trial court granted Broussard a second 30-day extension, and

she served supplemental expert reports from Dr. Kastl and Dr. Wellington J. Davis,

M.D. Dr. Kastl’s second supplemental expert report explained that he had training,

education, and experience regarding the surgery that Dr. Cook performed on

Broussard, which was a continuing part of his clinical practice. Dr. Davis, who is

board certified in surgery and plastic surgery, stated that the operative injury was

not a typical risk of the surgery being conducted. He opined that although the

operative report was unclear about whether Dr. Cook or Song caused the injury,

loss of control of surgical instrumentation by either was a deviation from the

standard of care and the cause of Broussard’s injury.

The appellants objected to the newly filed expert reports and filed motions to

dismiss. The trial court denied the motions, and the appellants filed this second

interlocutory appeal.

4

Analysis

On appeal, Dr. Cook and Song challenge (1) the trial court’s grant of a

second 30-day extension of time for Broussard to cure the deficiencies in the

expert reports and (2) the trial court’s denial of the motion to dismiss.

I. A plaintiff must make a good-faith effort to comply with the expert-

report requirement in a health care liability case.

To enable the trial court to “weed out frivolous malpractice claims in the

early stages of litigation,” a plaintiff alleging a health-care-liability claim must

serve an expert report upon each defendant not later than 120 days after that

defendant’s answer is filed. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219,

223–24 (Tex. 2018); see TEX. CIV. PRAC. & REM. CODE § 74.351(a)); Loaisiga v.

Cerda, 379 S.W.3d 248, 258 (Tex. 2012) (“The requirements are meant to identify

frivolous claims and reduce the expense and time to dispose of any that are filed.”).

The expert report must provide “a fair summary” of the expert’s opinions “as of

the date of the report” regarding (1) the defendant’s “applicable standards of care,”

(2) how the defendant breached the standard, and (3) the “causal relationship”

between the breach of the standard of care and the alleged injury. TEX. CIV. PRAC.

& REM. CODE § 74.351(r)(6). “[O]ne expert need not address the standard of care,

breach, and causation; multiple expert reports may be read together to determine

whether these requirements have been met.” Abshire, 563 S.W.3d at 224 (citing

TEX. CIV. PRAC. & REM. CODE § 74.351(i)).

5

Because the TMLA enables early dismissal of frivolous lawsuits, a plaintiff

need not marshal all her proof; a report will be considered adequate when it

constitutes a “good faith effort to comply with the statutory requirements.” Id.

§ 74.351(l); see Abshire, 563 S.W.3d at 223 (citing Am. Transitional Care Ctrs. of

Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). A report constitutes a “good

faith effort” to comply when it (1) informs the defendant of the specific conduct

complained of, and (2) provides the trial court a basis on which to conclude the

claims have merit. Abshire, 563 S.W.3d at 223; Baty v. Futrell, 543 S.W.3d 689,

693–94 (Tex. 2018). However, a “conclusory statement of causation is inadequate;

instead, the expert must explain the basis of his statements and link conclusions to

specific facts.” Abshire, 563 S.W.3d at 224; see Columbia Valley Healthcare Sys.,

L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (“[W]ithout factual

explanations, the reports are nothing more than the ipse dixit of the experts,

which . . . are clearly insufficient.”). A defendant may seek dismissal of a health

care liability suit when the expert report is untimely or deficient, see TEX. CIV.

PRAC. & REM. CODE § 74.351(b), and he may appeal an interlocutory order

denying a motion to dismiss, “except that an appeal may not be taken from an

order granting an extension under Section 74.351.” TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(9).

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II. This court lacks jurisdiction to review the trial court’s grant of a second

30-day extension of time to cure the deficiencies in the expert report.

Both Dr. Cook and Song challenge the court’s grant of an extension of time

for Broussard to cure the deficiencies in the expert report.

“Appellate courts have jurisdiction to consider immediate appeals of

interlocutory orders only if a statute explicitly provides such jurisdiction.” Tex.

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Interlocutory

orders denying a motion to dismiss under section 74.351 are immediately

appealable and are reviewed for an abuse of discretion. See, e.g., Abshire, 563

S.W.3d at 223; Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510,

512 (Tex. 2017). However, the statute authorizing an interlocutory appeal from a

denial of a motion to dismiss expressly disallows an appeal from “an order

granting an extension under Section 74.351.” TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(9); see Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007)

(“[T]he statute plainly prohibits interlocutory appeals of orders granting

extensions . . . .”).

Dr. Cook and Song argue that the trial court erred and abused its discretion

by affording Broussard a second 30-day extension of time to cure deficiencies in

her expert report. Both argue that they are not appealing the trial court’s order

granting the second 30-day extension, but both also argue that the trial court

misapplied the law by affording Broussard a second 30-day extension.

7

When this case was remanded after the first interlocutory appeal, Broussard

filed a motion for a second 30-day extension of time to cure deficiencies in her

expert report that she contended she had not had an opportunity to cure. Dr. Cook

and Song objected to Broussard’s motion. They argued that this court had

remanded for further proceedings and that a second 30-day extension would be

proper only if the trial court found that the court of appeals held the expert report

to be deficient on a basis for which Broussard had not already been allowed to

cure. They argued that the trial court was not required to identify the deficiencies

in the expert report and that their own arguments about Dr. Kastl’s qualifications

had put Broussard on notice that her expert reports had been deficient. Therefore,

they concluded that the first 30-day extension afforded Broussard an opportunity to

cure that deficiency.

In this court, their argument depends on a conclusion that the court abused

its discretion by finding that Broussard had not previously been afforded an

opportunity to cure deficiencies relating to Dr. Kastl’s qualifications or that the

court erred by misapplying a law that gave it no discretion to permit a second 30-

day extension. In his reply brief, Dr. Cook asserts:

If the law is misapplied, there has to be a means for appealing that

misapplication. Since an order granting a 30-day extension is not an

appealable order, Cook’s first opportunity to correct the

misapplication of the 30-day extension came by appealing the last

order of the trial judge overruling objections and denying Cook’s

8

motion to dismiss. This Court has jurisdiction on appeal to resolve

issues involving misapplication of the law.

A petition for writ of mandamus—not an unauthorized interlocutory

appeal—is the proper procedural device to challenge a trial court’s action when a

litigant believes the court has clearly abused its discretion, for example by

misapplying the law, and there is no adequate remedy by appeal. In re Columbia

Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex. 2010) (citing In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004), and In re Poly–

Am., L.P., 262 S.W.3d 337, 346–47 (Tex. 2008)). The appellants did not file a

petition for writ of mandamus after the trial court gave Broussard a second

extension of time to cure the deficiencies in her expert report. “Texas policy as

‘embodied in our appellate rules . . . disfavors disposing of appeals based upon

harmless procedural defects.’” CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex.

2011) (quoting Higgins v. Randall Cty. Sheriff’s Office, 257 S.W.3d 684, 688 (Tex.

2008), and Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). But mandamus

is “controlled largely by equitable principles,” In re Int’l Profit Assocs., Inc., 274

S.W.3d 672, 676 (Tex. 2009), and while courts occasionally have construed

appeals as petitions for writs of mandamus, they have done so only when the

appellants preserved the issue by asking for mandamus relief in the alternative.

E.g., CMH Homes, 340 S.W.3d at 453; Hodge v. Kraft, 490 S.W.3d 510, 516 n.2

(Tex. App.—San Antonio 2015, no pet.). Dr. Cook and Song have not preserved

9

the issue or invoked this court’s original jurisdiction by requesting that this appeal

be treated as a mandamus petition.3

We conclude that we lack jurisdiction to consider this challenge on appeal.

See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9); Ogletree, 262 S.W.3d at 320–

21. We overrule the first issue.

III. The trial court did not abuse its discretion by denying the motions to

dismiss.

A. Dr. Kastl and Dr. Davis were qualified to give opinions regarding

Song’s conduct.

Song challenges the qualifications of both Dr. Kastl and Dr. Davis to offer

opinions about the standard of care for a surgical assistant.4 When a nonphysician

health care provider is the defendant in a suit involving a health care liability

claim,

a person may qualify as an expert witness on the issue of whether the

health care provider departed from accepted standards of care only if

the person:

3

They also did not file a motion for rehearing after this court’s opinion issued in the

first interlocutory appeal, nor did they file a petition for review in the Texas

Supreme Court.

4

In his brief, Dr. Cook refers to Dr. Kastl as “unqualified,” but he did not include a

challenge to his qualifications in his brief. Because he did not raise an issue of the

experts’ qualifications in this appeal, our analysis of their qualifications is limited

to their qualifications to offer opinions regarding a surgical assistant’s standards of

care. See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is

axiomatic that an appellate court cannot reverse a trial court’s judgment absent

properly assigned error.”).

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(1) is practicing health care in a field of practice that involves the

same type of care or treatment as that delivered by the

defendant health care provider, if the defendant health care

provider is an individual, at the time the testimony is given or

was practicing that type of health care at the time the claim

arose;

(2) has knowledge of accepted standards of care for health care

providers for the diagnosis, care, or treatment of the illness,

injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an

expert opinion regarding those accepted standards of health

care.

TEX. CIV. PRAC. & REM. CODE § 74.402(b). To determine whether a witness is

“qualified on the basis of training or experience,” the court will consider whether

the witness is (1) certified in the area of health care relevant to the claim and (2) “is

actively practicing health care in rendering health care services relevant to the

claim.” Id. § 74.402(c). “Practicing health care” means “(1) training health care

providers in the same field as the defendant health care provider at an accredited

educational institution; or (2) serving as a consulting health care provider and

being licensed, certified, or registered in the same field as the defendant health care

provider.” Id. § 74.402(a).

Song asserts that Dr. Davis’s report failed to describe any training or

experience that he had on the standard of care for a surgical assistant. “Not every

licensed physician is qualified to testify about every medical question.” Mangin v.

Wendt, 480 S.W.3d 701, 707 (Tex. App.—Houston [1st Dist.] 2015, no pet.)

11

(citing Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). “The critical inquiry is

‘whether the expert’s expertise goes to the very matter on which he or she is to

give an opinion.’” Id. at 707 (quoting Broders, 924 S.W.2d at 153). A physician

“may be qualified to provide an expert report even when his specialty differs from

that of the defendant ‘if he has practical knowledge of what is usually and

customarily done by other practitioners under circumstances similar to those

confronting the malpractice defendant,’ or ‘if the subject matter is common to and

equally recognized and developed in all fields of practice.’” Id. (quoting Keo v. Vu,

76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)).

Dr. Davis stated that he is board certified in surgery and plastic surgery and

that he has more than a decade of experience practicing craniofacial surgery. He

also stated that in his clinical practice he regularly cares for patients with injuries

similar to Broussard’s and performs operations like the one performed by Dr.

Cook. He specifically stated: “By reason of education, training and clinical

experience, I am therefore very much familiar with the standard of care that should

be followed by a craniofacial plastic surgeon like Dr. Thomas Kevin Cook and a

certified surgical assistant like [Song].” Because he is familiar with the standard of

care for certified surgical assistants and that he has education, training, and

experience with operations like the one Dr. Cook performed on Broussard, Dr.

Davis was qualified to provide an expert report about whether Song departed from

12

accepted standards of care. See Doctors Hosp. v. Hernandez, No. 01-10-00270-

CV, 2010 WL 4121678, at *7 (Tex. App.—Houston [1st Dist.] Oct. 21, 2010, no

pet.) (mem. op.) (physician was qualified to provide an expert report concerning a

hospital’s standard of care when he said that he was familiar with the appropriate

standards of care for the relevant nonphysician health care providers employed by

the hospital).

Song also argues that Dr. Kastl is not qualified to provide an expert report

regarding whether a certified surgical assistant deviated from the standard of care

because training during his residency is insufficient. In his second supplemental

expert report, Dr. Kastl clarified that he is specifically “very familiar with the

surgical procedure that Dr. Cook and his surgical assistant” performed on

Broussard. He explained:

I received training for the operative procedure performed by Dr. Cook

during my residency in ophthalmology. Repairing multiple fractures,

such as those suffered by Ms. Broussard, is not limited to the specialty

of cranial facial and plastic surgery. Ophthalmologists are also trained

in the standard of care to be followed and how deviations from the

standard of care by the physician and/or the surgical assistant can

cause the type of injuries suffered by Ms. Broussard. Part of my

practice at Tulane University is to provide surgery to repair fractures

of the type suffered by Ms. Broussard. I have performed this surgery

on a number of occasions. This surgical procedure is commonly

performed by the doctor, with the assistance of a certified surgical

assistant (CSA), as was the case of Ms. Broussard. I am also familiar

with the instrumentation that was used during this surgical procedure

by both the physician, Dr. Cook, and the retractor that was being used

by the CSA, [Song]. By reason of my education, training and surgical

experiences, I have [sic] therefore familiar with the standard of care

13

that Dr. Cook and the CSA, [Song], should have followed in

performing the surgical procedure on Ms. Broussard.

Dr. Kastl had education, training, and experience performing the same

surgery Dr. Cook performed on Broussard, which remained part of his ongoing

clinical practice. Because he explained that he is familiar with the standards of care

applicable to a certified surgical assistant helping to perform this specific

procedure, his expertise went to the “very matter” on which he was asked to opine

and he was qualified to provide an expert report regarding whether Song deviated

from the standard of care. See Mangin, 480 S.W.3d at 707 (quoting Broders, 924

S.W.2d at 153); Doctors Hosp., 2010 WL 4121678, at *7.

B. The expert reports were adequate and represented a good faith

effort to comply with the statute.

Dr. Cook and Song challenge the adequacy of the reports.5 Both appellants

analyze the reports from Dr. Kastl and Dr. Davis separately and conclude that

neither witness provided a report that satisfied all the statutory requirements. These

arguments are unavailing because “multiple expert reports may be read together”

to determine whether the statutory requirements have been met. Abshire, 563

S.W.3d at 223 (citing TEX. CIV. PRAC. & REM. CODE § 74.351(i)). Therefore, we

5

Dr. Kastl provided three reports: his initial report and two supplements. He stated

that he was familiar with the surgery that Dr. Cook performed on Broussard and in

his second supplemental report he explained how he, as an ophthalmologist, had

education, training, and experience with this type of surgery. Dr. Davis provided

one report summarizing his qualifications and opinions.

14

will consider the reports of Dr. Kastl and Dr. Davis together to determine whether

the statutory requirements have been met.

Standards of care & breach of the standards of care

Both Dr. Cook and Song argue that the reports are inadequate because they

do not identify what either of them should have done differently to change the

outcome. Both appellants contend that the reports merely opine that the injury

itself, a torn eyelid, is a breach of the standard of care.

Both Dr. Kastl and Dr. Davis relied on the operative report for information

about what happened during the operation. In his first report, Dr. Kastl stated that

Broussard’s “lower lid was torn by a retractor,” when one or both of Dr. Cook and

Song “made an inappropriate movement” during the procedure. In that report, Dr.

Kastl wrote: “The report of the procedure is unclear as to whether Dr. Cook and/or

CSA Song made the inappropriate movement causing injury to Mrs. Broussard.” In

his second report, Dr. Kastl quoted from the operative report:

The inferior orbital rim on the medial side was displaced inferiorly

and posteriorly. It was grasped with an instrument to gently work it

out and into position. At this time, the instrument slipped and a

Desmarres retractor, which was retracted in the medial aspect of the

lid, placed excessive tension [sic] placed on it. There was a

subsequent tear in the lid at the level just lateral to the medial canthus.

Dr. Kastl explained: “As is evident from this quote from the operative

report, at the time of the injury, Dr. Cook was holding an instrument that ‘slipped,’

and that a Desmarres retractor, which was held by CSA [Song], placed excessive

15

tension on the medial aspect of the lid.” Dr. Davis described the incident: “While

reducing the inferior rim of the orbit, the instrument being used for the reduction

slipped and a Desmarres retractor already in place caused excessive tension on the

lower lid. The combination caused an avulsion injury of the lower lid that also tore

through the lower lid lacrimal system.” In other words, Dr. Davis described an

injury caused by the combination of the slipping of the instrument and tension

applied by the retractor. Dr. Davis also noted the ambiguity in the operative report:

“It is not clear from the operative report if Dr. Thomas Kevin Cook or his surgical

assistant Song, CSA specifically caused the injury. What is known is that an

uncontrolled maneuver occurred which resulted in a wildly significant avulsion

injury of the lower lid.” Calling the injury “significant,” Dr. Davis opined that it

was “caused by the loss of control of surgical instrumentation during the case.”

In Baty v. Futrell, 543 S.W.3d 689 (Tex. 2018), a cataract patient alleged

that a certified nurse anesthetist caused her permanent nerve damage and vision

loss by improperly injecting anesthesia during cataract surgery. 543 S.W.3d at 690.

Baty sued for negligence and filed expert reports that identified the standard of

care to include not injuring the optic nerve when administering the retrobulbar

anesthetic block and the breach of that standard to include damaging her optic

nerve by “sticking it with the retrobulbar needle.” Id. at 691. The trial court granted

the defendant’s motion to dismiss, and a divided court of appeals affirmed,

16

“holding the report is inadequate as to the standard-of-care element because it is

silent as to ‘what an ordinarily prudent CRNA should have done in this instance’

and is therefore conclusory.” Id. at 692 (quoting the court of appeals opinion).

The Texas Supreme Court disagreed that the report was conclusory because

the witness did not “simply state in the report that he knows the standard of care

and concludes that it was not met,” nor did he “improperly equate negligence with

a bad or unsuccessful result,” or opine that the CRNA was negligent “merely

because the cataract surgery was unsuccessful or because Baty suffered permanent

nerve damage or vision loss.” Id. at 696. Rather, the Supreme Court concluded:

“Inserting the needle into the optic nerve is not a result, good or bad; it is conduct

that allegedly caused a bad result in this case. And it is this specific conduct that

[the expert witness] opines falls below the standard of care.” Id. Accordingly, the

Supreme Court held that the report sufficiently addressed causation. Id. at 697.

Considering all the reports together, we conclude that Dr. Kastl and Dr.

Davis stated the standard of care applicable to both Dr. Cook and Song was to

maintain control of the surgical instrumentation and that they breached the

standard by failing to do so. The expert reports in this case do not merely state that

Dr. Cook and Song were negligent because Broussard’s eyelid was torn, nor do

they summarily state that Dr. Kastl and Dr. Davis know the standard of care and

17

that it was not met. As in Baty, the reports identify specific conduct, losing control

of the surgical instrumentation, that fell below the standard of care.

Causation

Considering the reports together, both Dr. Kastl and Dr. Davis opined that

the uncontrolled maneuver that occurred when either or both Dr. Cook and Song

lost control of the surgical instrumentation caused Broussard’s the tear in

Broussard’s eyelid and tear duct system, which necessitated corrective surgery and

ongoing care. This satisfies the statutory requirement to provide a fair summary of

the “causal relationship” between the health care provider’s failure to meet the

standards of care and “the injury, harm, or damages claimed.” TEX. CIV. PRAC. &

REM. CODE § 74.351(r)(6).

Good faith effort

Both Dr. Cook and Song argue that the reports do not constitute a good faith

effort to comply with the statute because they do not identify which of them is

liable for the injury. Broussard was not required to marshal all her evidence in

response to the motion to dismiss. See Abshire, 563 S.W.3d at 223–24. The expert

reports rely on the operative report, and they inform both Dr. Cook and Song of the

specific conduct complained of, the loss of control of surgical instrumentation. The

reports also provide the court with a basis on which to conclude that the claims

have merit. See id. In particular, in addition to identifying the standard of care, the

18

breach, and the how that breach caused Broussard’s injury, both expert reports

indicate that the injury that Broussard suffered is not a typical complication of the

surgery performed by Dr. Cook. Dr. Davis stated: “Eyelid avulsion injury and

injury of the lacrimal system in this manner is not a complication that would be

discussed in the process of informed consent.” Dr. Kastl stated: “There is no

circumstance of this surgery where a torn eyelid is a known complication.” In other

words, the expert reports informed the court that the injury sustained by Broussard,

which the expert witnesses opined was caused by the appellants’ breach of the

standard of care, was more than an unsuccessful surgery. See Baty, 543 S.W.3d at

696. Because the expert reports informed the appellants of the specific conduct that

was challenged and gave the trial court a basis for concluding that Broussard’s

claim has merit, they represented a good faith effort to comply.

***

We conclude that the expert reports were adequate and a good faith effort to

comply. Accordingly, we hold that the trial court did not abuse its discretion by

denying the motions to dismiss.

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Conclusion

We affirm the order of the trial court.

Peter Kelly

Justice

Panel consists of Justices Lloyd, Kelly, and Goodman.

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