Rudy G. Dominguez, as Surviving Spouse of Estella Dominguez, Deceased, Leticia Dominguez and Michael Dominguez v. James Thomas Payte, M.D., Individually and d/b/a Drug Dependence Associates and Drug Dependence Associates, Inc.--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00720-CV

RUDY G. DOMINGUEZ, AS SURVIVING SPOUSE OF ESTELLA DOMINGUEZ, LETICIA DOMINGUEZ, AND MICHAEL DOMINGUEZ,

Appellants
v.

JAMES THOMAS PAYTE, M.D., INDIVIDUALLY AND D/B/A DRUG DEPENDENCE ASSOCIATES AND DRUG DEPENDENCE ASSOCIATES, INC.,

Appellees
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-06454
Honorable David Peeples, Judge Presiding (1)

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: February 25, 2004

AFFIRMED

Rudy G. Dominguez, as the surviving spouse of Estella Dominguez, Leticia Dominguez, and Michael Dominguez (collectively, "Plaintiffs") appeal the trial court's dismissal of their medical malpractice suit. We affirm.

Estella Domiguez ("Estella") sought medical treatment for drug addiction from Dr. James

Payte, M.D., individually and d/b/a Drug Dependance Associates and Drug Dependance Associates, Inc. (collectively, "Dr. Payte"). Dr. Payte treated Estella with methadone, a synthetic narcotic substitute used in the treatment of opiate addiction. While under the care of Dr. Payte, Estella died. The autopsy report concluded the cause of her death was acute methadone intoxication. Plaintiffsfiled this cause of action claiming negligence in the use, administration and supervision of the drug methadone.

Dr. Payte moved to dismiss Plaintiffs' claim after they failed to file an expert report under

the Texas Medical Liability and Insurance Improvement Act (the "Act"). Plaintiffs responded that an expert report was not required. The trial court, (2) after a hearing, disagreed with Plaintiffs' argument, but allowed them an additional thirty days to comply with the Act. An expert report from Gary W. Kunsman, Ph.D., a forensic toxicologist ("Dr. Kunsman"), was then provided. Dr. Payte subsequently filed a second motion to dismiss Plaintiffs' suit challenging Dr. Kunsman's report as inadequate to meet the Act's statutory requirements. A second hearing was held and the trial court dismissed the Plaintiffs' case with prejudice. This appeal resulted.

Plaintiffs first argue they are not required to file an expert report because the standard of care

and injury causation are established in the autopsy report that shows Estella died of acute methadone intoxication. We disagree. Our legislature has mandated that a claimant filing a health care liability claim "shall" furnish each defendant physician or healthcare provider with an expert report or voluntarily nonsuit the action. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(d)(Vernon 2002). (3) The statute allows no exception to this requirement.

Plaintiffs next contend that the trial court erred in determining Dr. Kunsman's report did not meet the requirements of the Act. Again, we disagree. The requirements of an "expert report" are set forth within the Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(r)(6)(Vernon 2002). The report need not marshal all of the claimant's proof, but it must include the expert's opinion on each of the three elements that the Act identifies: standard of care, breach, and causal relationship. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). Dr. Kunsman's report wholly fails to meet any of the elements identified in the statute.

Looking at the four corners of the document, Dr. Kunsman initially details what documents he reviewed to prepare his report, followed by a brief description of the patient's history involving substance abuse. Dr. Kunsman further explains why methadone is generally prescribed, pertinent dosing information, when it might be necessary to exceed the recommended dosage of the drug, why methadone was prescribed to Estella, and the amounts she received over the course of her treatment. He then concludes that Estella died as a result of "acute ingestion of methadone, most likely far in excess of her typical methadone dose and certainly far in excess of the recommended maximum dosage range for methadone when administered in a maintenance and detoxification program." Nowhere in his report does Dr. Kunsman (i) set forth the standard of care required for physicians who select, administer, and supervise the drug methadone in the treatment of their patients; (ii) name Dr. Payte and/or Drug Dependance Associates as having failed to meet the standard of care in Estella's treatment; or (iii) link Dr. Payte and/or Drug Dependance Associates to her death. Accordingly, the trial court did not abuse its discretion in dismissing Plaintiffs' suit. We overrule the plaintiffs' second issue and affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

1. The Honorable Karen Pozza is the presiding judge of the 407th Judicial District Court, Bexar County, Texas. The Honorable David Peeples signed the judgment from which this appeal is taken.

2. The Honorable John Specia, judge of the 225th Judicial District Court, Bexar County, Texas presided over Dr. Payte's first motion to dismiss. The Honorable David Peeples, judge of the 224th Judicial District Court, granted Payte's second motion to dismiss which is at issue in this appeal.

3. At the time of the hearing on September 27, 2002, the trial court was governed by Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01 (Vernon 2002). This Act has now been repealed and recodified at Tex. Civ. Prac. & Rem. Code Ann. 74.351 (Vernon 2004) (effective Sept. 1, 2003).