Olga Cortez, M.D., Medical Clinic of North Texas, P.A., and Denton Obstetrics & Gynecology, P.A. v. Elizabeth Ebben Tomas--Appeal from 431st District Court of Denton County (Majority)
Download as PDF
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
OLGA CORTEZ, M.D., MEDICAL
CLINIC OF NORTH TEXAS, P.A.,
AND DENTON OBSTETRICS &
ELIZABETH EBBEN TOMAS
FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
In this interlocutory appeal,2 Appellants Olga Cortez, M.D., Medical Clinics
of North Texas, P.A., and Denton Obstetrics and Gynecology, P.A. contend that
See Tex. R. App. P. 47.4.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2011).
the trial court abused its discretion by denying their motion to dismiss the
healthcare liability claim filed against them by Appellee Elizabeth Ebben Tomas.
Appellants contend in five issues that Tomas failed to provide an expert report as
defined by civil practice and remedies code section 74.3513 because the expert
is not qualified to address the applicable standard of care or causation and
because the expert‘s report does not adequately set forth the applicable standard
of care, breach of the standard of care, or causation. We affirm in part and
reverse and remand in part.
Tomas filed suit against Appellants in August 2010 alleging medical
negligence during and after a surgery to remove Tomas‘s ovary. Tomas pleaded
that she had her gallbladder surgically removed in July 2008 and that the
surgeon noted a cyst on her ovary during the surgery. Tomas‘s primary care
physician referred her to Dr. Cortez for examination of the ovarian cyst, and Dr.
Cortez recommended surgical removal of Tomas‘s ovary.
Tomas alleged that she expressed concern to Dr. Cortez about undergoing
another surgery so soon but that Dr. Cortez represented that she had spoken
with Tomas‘s prior surgeon who indicated that a second surgery would not be a
problem.4 Tomas thereafter agreed to undergo the second surgery, which Dr.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2011).
Tomas also alleged that this representation by Dr. Cortez was not
Cortez performed. Tomas alleged that Dr. Cortez ―sliced [Tomas]‘s small bowel
during the surgery and either never noticed it or attempted to cover up the
problem.‖ Tomas further alleged that she ―developed a severe wound, became
septic[,] had to undergo a subsequent bowel operation‖ eight days later, ―was
hospitalized for many months,‖ and ―is still undergoing medical treatment.‖
Tomas alleged that Medical Clinics of North Texas, P.A. and Denton Obstetrics
and Gynecology, P.A. are vicariously liable for Dr. Cortez‘s alleged negligence.
Tomas filed and served the curriculum vitae (CV) and expert report of Dr.
Michael Heard. Appellants objected to Dr. Heard‘s CV and report and filed a
motion to dismiss Tomas‘s claims.
The trial court conducted a hearing and
denied Appellants‘ motion to dismiss.
Appellants then filed notice of this
III. Standard of Review
A trial court‘s ruling concerning an expert report under section 74.351
(formerly article 4590i, section 13.01) of the Medical Liability and Insurance Act is
reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875
(Tex. 2001). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
appellate court cannot conclude that a trial court abused its discretion merely
because the appellate court would have ruled differently in the same
circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
IV. Statutory Requirements
A health care liability claimant must serve an expert report on each
defendant no later than the 120th day after the claim is filed. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a). A defendant may challenge the adequacy of a
report by filing a motion to dismiss, and the trial court must grant the motion to
dismiss if it finds after a hearing that ―the report does not represent an objective
good faith effort to comply with the definition of an expert report‖ in the statute.
Id. § 74.351(l). While the expert report ―need not marshal all of the plaintiff‘s
proof,‖ it must provide a fair summary of the expert‘s opinions as to the
―applicable standard 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.‖ Id.
§ 74.351(r)(6); Palacios, 46 S.W.3d at 878 (construing former article 4590i,
To constitute a good faith effort, the report must discuss the standards of
care, breach, and causation with sufficient specificity (1) to inform the defendant
of the conduct the plaintiff has called into question and (2) to provide the trial
court with a basis to conclude that the claims have merit. See Bowie Mem’l, 79
S.W.3d at 52; Palacios, 46 S.W.3d at 879.
A report does not fulfill this
requirement if it merely states the expert‘s conclusions or if it omits any of the
statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at
But 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.‖ Palacios, 46 S.W.3d at 879.
When reviewing the adequacy of a report, the only information relevant to
the inquiry is the information contained within the four corners of the document.
Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. This requirement
precludes a court from filling gaps in a report by drawing inferences or guessing
as to what the expert likely meant or intended. See Austin Heart, P.A. v. Webb,
228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.).
74.351 does not prohibit experts, as opposed to courts, from making inferences
based on medical history.
Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL
2579824, at *4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem.
op.); see also Tex. R. Evid. 703 (providing that an expert may draw inferences
from the facts or data in a particular case); Tex. R. Evid. 705 (providing that an
expert may testify in terms of opinions and inferences).
Appellants contend in five issues that Tomas failed to provide an expert
report as defined by civil practice and remedies code section 74.351 because her
expert witness is not qualified to address the applicable standard of care or
causation and because the expert‘s report does not adequately set forth the
applicable standard of care, breach of the standard of care, or causation.
Appellants argue in their first two issues that the expert report and
attached CV do not establish Dr. Heard‘s qualifications to address the applicable
standard of care or causation. Specifically, Appellants contend that the report
contains only conclusory assertions about Dr. Heard‘s qualifications and never
mentions Dr. Heard‘s qualifications to opine concerning the surgical procedure at
issue in this case.
1. Applicable Law
Not every licensed doctor is automatically qualified to testify as an expert
on every medical question. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex.
1996); Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex. App.—Amarillo 2002, no
pet.). For the author of an expert report to satisfy section 74.351, he must be
qualified to render opinions regarding the medical care which is the subject of the
claim against the defendant.
See Tex. Civ. Prac. & Rem. Code Ann.
The issue is the specific subject matter and the expert‘s
familiarity with it. Hagedorn, 73 S.W.3d at 350; see Broders, 924 S.W.2d at 153;
Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Analysis of expert qualifications under section 74.351 is limited to the four
corners of the report and the expert‘s CV. Baylor Coll. of Med. v. Pokluda, 283
S.W.3d 110, 117 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see Palacios,
46 S.W.3d at 878. To be qualified, the expert must satisfy the requirements of
section 74.401. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A). Under
section 74.401, the expert must be a physician who:
(1) is practicing medicine at the time such testimony is given or was
practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care 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 medical care.
Id. § 74.401(a) (West 2011). ―Practicing medicine‖ includes, but is not limited to,
training residents or students at an accredited school of medicine or osteopathy
or serving as a consulting physician to other physicians who provide direct
patient care, upon the request of such other physicians. Id. § 74.401(b). In
determining whether a witness is qualified on the basis of training or experience,
the court shall consider whether, at the time the claim arose or at the time the
testimony is given, the witness:
(1) is board certified or has other substantial training or experience
in an area of medical practice relevant to the claim; and
(2) is actively practicing medicine in rendering medical care services
relevant to the claim.
Id. § 74.401(c).
A person may qualify as an expert witness on the issue of the causal
relationship between the alleged breach and the injury claimed ―only if the person
is a physician and is otherwise qualified to render opinions on that causal
relationship under the Texas Rules of Evidence.‖ Id. § 74.403(a). Texas Rule of
Evidence 702 requires an expert witness to be qualified on the basis of
―knowledge, skill, experience, training, or education.‖ Tex. R. Evid. 702.
2. Applicable Facts
At issue in this case are Dr. Cortez‘s decision to proceed with surgery to
remove Tomas‘s ovary and the care Dr. Cortez provided Tomas during and after
that surgery. Relevant to his qualifications concerning the applicable standard of
care and causation, Dr. Heard‘s report states as follows:
I am currently a physician practicing obstetrics, gynecology,
and reproductive endocrinology in the state of Texas. I have been
board certified and recertified by the American [B]oard of Obstetrics
and Gynecology (ABOG) and have been in practice postresidency
since 1995. I completed a fellowship and board certification in
reproductive endocrinology and infertility. I am currently voluntary
faculty as clinical assistant professor for Baylor College of Medicine
Department of Obstetrics and Gynecology and assist in resident
training with the Methodist Residency Program, UT Health Science
Center, and UT Medical Branch Residencies programs as well.
Besides my involvement with residency education, I am also
involved with the American Congress of Obstetrics and Gynecology
(ACOG) on a national level, as well as Medical Director of a national
board review courses [sic] for obstetrics and gynecology which helps
to prepare practicing OB/GYN candidates for written and oral board
examination that leads to board certification. My current resume,
which is attached to this report, contains a complete listing of my
previous teaching appointments as well as past publications.
Based on my education, training, and past experience, I am
qualified to render an opinion on the medical care of Elizabeth
Ebben-Tomas, including the diagnosis and surgical treatment of her
ovarian cyst . . . .
In addition, Dr. Heard‘s CV reflects that he completed his residency in
obstetrics and gynecology in 1995, served as an assistant professor of obstetrics
and gynecology from 1995 to 1999, and was a ―Clinical/Research Fellow‖ in
obstetrics and gynecology from 1999 to 2002. The CV also lists twenty different
abstracts or publications that Dr. Heard authored or co-authored and almost as
many committees and projects, all involving obstetrics and gynecology. But none
of the abstracts, publications, committees, or projects obviously involves or
relates to surgical procedures, and neither Dr. Heard‘s report nor his CV
expressly list or describe any surgical training or experience.
3. Standard of Care
In In re Windisch, our sister court held that an expert report offered only
conclusory assertions of an expert‘s qualification to opine on the applicable
standard of care involved with an embolization procedure in preparation for
surgery, even though the expert and the defendant physician were both
radiologists.5 See 138 S.W.3d 507, 509, 513 (Tex. App.—Amarillo 2004, orig.
proceeding). Specifically, the court stated,
Except for some conclusory statements, Shenk‘s report
contains only brief statements referencing his qualifications. Both
Shenk and [Defendant] Windisch are radiologists. Nothing in Ray‘s
pleadings or in Shenk‘s report or curriculum vitae allows us to
presume, though, that the issues involved in this case are so
common to radiology that any credentialed radiologist can testify to
the applicable standard of care. His fellowship in neuroradiology
and his teaching appointments earlier in his career might indicate
familiarity with the interventional procedure Windisch performed on
Powell, but cannot reasonably be said to demonstrate that he has
An embolization procedure ―involves [the] placement of small particles
and wires into the blood vessels for the purpose of cutting off the blood supply to
a tumor.‖ Id. at 509 n.2.
knowledge of the accepted standard of care for the procedure. . . .
[N]othing in the report connects Shenk‘s positions since 1988 as
medical director of MRI facilities to expertise in the procedure
performed by Windisch. Absent from the report and curriculum vitae
is any explanation of the manner in which Shenk‘s credentials carry
with them familiarity with the ―very matter‖ on which he proposes to
opine. . . . From the four corners of the report and curriculum vitae,
we find no basis for a conclusion that Shenk‘s training or experience
qualify him to offer an expert opinion on the standard of care for the
performance of embolization of brain tumors, and we must conclude
that the report and curriculum vitae cannot reasonably be read to
demonstrate that Shenk is so qualified.
Id. at 513–14 (citations omitted). Similarly, the court in CHCA Mainland, L.P. v.
Dickie held that the expert‘s report and CV did not establish the expert‘s
qualifications because the expert did not describe any of his experience treating
or teaching others about decubitus ulcers, even though ―it might be reasonable to
infer from the [report and CV] that [the expert] might have acquired experience in
the treatment and care of decubitus ulcers in his seventeen years of practice and
teaching.‖ No. 14-07-00831-CV, 2008 WL 3931870, at *5 (Tex. App.—Houston
[14th Dist.] Aug. 21, 2008, no pet.) (mem. op.); see also Carreras v. Trevino, 298
S.W.3d 721, 725–26 (Tex. App.—Corpus Christi 2009, no pet.) (holding report
did not establish expert‘s qualifications because it, other than ―summarily
asserting‖ the requisite knowledge, did not demonstrate the expert‘s training or
experience with the surgical and post-operative care of total knee replacement).
In this case, both Dr. Heard and Dr. Cortez practice obstetrics and
gynecology, and Dr. Heard is board certified in that specialty. Tomas argues that
it is sufficient that Dr. Heard and Dr. Cortez have the same medical specialty
because experts are routinely qualified to testify, even when they are not of the
same specialty, and because this case involves a simple gynecological
procedure. But Dr. Heard‘s report does not state that the surgery here was a
simple gynecological procedure. To the contrary, Dr. Heard‘s report describes
the procedure as it relates to Tomas, given her surgical history, as complex and
beyond the experience and training of most physicians practicing obstetrics and
Furthermore, simply having the same medical specialty is not
sufficient, standing alone, to qualify Dr. Heard to offer opinions about Dr. Cortez‘s
surgical and post-operative care and treatment of Tomas. See Windisch, 138
S.W.3d at 513 (discussing former section 13.01 and stating that ―[t]he
requirement that a Section 13.01 report and curriculum vitae set forth the expert‘s
knowledge of the procedure being questioned obtains even when the defendant
physician and the expert share certification in the same specialty‖). Moreover, it
appears from Dr. Heard‘s CV that he has limited his practice since 2003 to
reproductive matters within the field of obstetrics and gynecology.
Tomas asserts that the procedure in this case is in Dr. Heard‘s
―professional wheelhouse‖ and is clearly within his specialty. Dr. Heard quite
possibly has sufficient qualifications to offer opinions concerning the care Dr.
Cortez provided during and after Tomas‘s surgery, but nothing within the report‘s
four corners discloses or describes Dr. Heard‘s training or experience
performing, observing, or teaching other physicians about the surgical removal of
an ovary and the patient‘s postoperative care. See id. at 513–14. Therefore, the
report does not meet the statutory requirements concerning the care Dr. Cortez
provided during and after Tomas‘s surgery. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.401 (containing standards for qualification to offer expert opinions).
Thus, we sustain this portion of Appellants‘ first issue.
There is more, however, to Dr. Heard‘s opinion than Dr. Cortez‘s alleged
negligent care during and after Tomas‘s surgery. Dr. Heard also questions Dr.
Cortez‘s decision to proceed with the ovarian surgery given Tomas‘s complicated
medical history, and Dr. Heard‘s report and CV establish, within their four
corners, that he is qualified to offer opinions concerning the applicable standard
of care on that distinct issue because it involves the general lack of surgical
qualifications possessed by most physicians practicing obstetrics and gynecology
and whether a reasonably prudent physician would consult with another
physician with more qualifications when deciding whether to proceed with
surgery. Read as a whole, Dr. Heard‘s report and CV establish his qualifications
to offer opinions on the standard of care relevant to Dr. Cortez‘s decision to
proceed to surgery, but they do not establish his qualifications to offer opinions
on the standard of care relevant to Dr. Cortez‘s care and treatment of Tomas
during and after the surgery. Because the report and CV establish Dr. Heard‘s
qualifications to opine concerning the standard of care applicable to Dr. Cortez‘s
decision to proceed to surgery, we overrule the remainder of Appellants‘ first
Appellants argue in their second issue that Dr. Heard‘s report and CV do
not establish his qualifications to opine concerning causation, and we agree.
Because Tomas‘s injuries and prolonged medical care are alleged to have been
caused by complications relating to her ovarian surgery, Tomas was required to
establish that Dr. Heard is qualified on the basis of ―knowledge, skill, experience,
training, or education‖ to offer opinions concerning the causal link between Dr.
Cortez‘s alleged negligence and Tomas‘s injuries. See Tex. R. Evid. 702; see
also Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a). Similar to the deficiencies in
Dr. Heard‘s report and CV concerning the standard of care relating to Dr.
Cortez‘s care during and after Tomas‘s ovarian surgery, Dr. Heard‘s report and
CV do not establish his qualifications to offer opinions concerning causation. As
mentioned above, nothing within the four corners of Dr. Heard‘s report or CV
discloses or describes his training or experience performing, observing, or
teaching other physicians about the surgical removal of an ovary and the
patient‘s postoperative care, and nothing within the report or CV suggests that
Dr. Heard is qualified to opine concerning the causative chain that allegedly
followed the injury to Tomas‘s bowel that allegedly occurred during that surgery.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.403 (referring to qualifications to
offer expert opinions on causation); Tex. R. Evid. 702; see also Collini v.
Pustejovsky, 280 S.W.3d 456, 466 (Tex. App.—Fort Worth 2009, no pet.) (stating
that ―while [the expert] may be well qualified to make these assertions
[concerning causation], the four corners of his report simply do not provide any
details regarding such qualifications‖). We therefore sustain Appellant‘s second
B. Standard of Care and Breach of Standard of Care
Appellants contend in their third and fourth issues that the expert report
does not adequately describe the applicable standard of care or how Dr. Cortez
allegedly breached that standard of care.
Dr. Heard‘s report without question contains many conclusory assertions
concerning the standard of care and breach of the standard of care, but the
report also includes several nonconclusory assertions. For example, the report
provides that Tomas‘s complicated medical and surgical history required a
physician with the appropriate training and experience to perform the ovarian
surgery and that Dr. Cortez did not have the requisite training and experience
and did not consult with a more qualified surgeon or other physician before or
during the ovarian surgery. The report also states that Dr. Cortez breached the
standard of care by deciding to proceed with the surgery and by failing to consult
with Tomas‘s prior medical and surgical providers.
Considering all of the information within the four corners of the report, we
hold that although Dr. Heard‘s report could have provided more detailed
descriptions of the applicable standards of care and Dr. Cortez‘s alleged
breaches of those standards, the report does provide a fair summary of Dr.
As to the standard of care and alleged breaches of the
standard of care, the report is sufficient to inform Dr. Cortez of the conduct
Tomas has called into question and to provide the trial court with a basis to
conclude that the claims have merit. See generally Bowie Mem’l, 79 S.W.3d at
52; Palacios, 46 S.W.3d at 879; cf. Dickie, 2008 WL 3931870, at *8 (holding
expert report conclusory as to breach of standard of care because it did not
include ―specific factual allegations setting forth the conduct that Dickie has
called into question‖ and did not ―discuss at all what actions were actually taken
. . . in Dickie‘s treatment, much less what actions [the defendant] failed to take‖).
We therefore overrule Appellants‘ third and fourth issues.
Appellants argue in their fifth issue that Dr. Heard‘s report does not contain
sufficient descriptive information to establish the requisite causal connection
between Dr. Cortez‘s alleged negligence and Tomas‘s alleged injuries. Although
we held above that Dr. Heard‘s report and CV do not establish his qualifications
to opine concerning causation, we address Appellants‘ fifth issue in the interest
of judicial economy. See generally In re Estate of Webb, 266 S.W.3d 544, 553
(Tex. App.—Fort Worth 2008, pet. denied) (addressing in interest of judicial
economy an issue likely to be raised on remand).
Relevant to causation, Dr. Heard‘s report states as follows:
It is my opinion that the botched procedure performed by Dr.
Cortez . . . , including the departure from the standards of care as
highlighted above, caused serious bodily injury and damage to Ms.
Ebben-Tomas. Based upon the information and documentation
available, as well as my education, training, and experience, it is my
opinion within a reasonable degree of medical probability that the
actions by Dr. Cortez . . . led to the patient‘s life threatening
complications initiated during the first procedure and the immediate
postoperative period that required additional surgery, intensive care
treatment, and prolonged hospitalization and medical care. These
complications would have been avoided if the appropriate
preoperative consultation and planning and intraoperative surgical
management would have been done.
Appellants argue that Dr. Heard‘s report is inadequate to establish
causation because Dr. Heard does not explain or describe how different
preoperative planning or consultation or different intraoperative surgical
management would have prevented Tomas‘s bowel injury. Tomas responds that
the report provides a fair summary of causation because it provides that her life
threatening condition ―would have been avoided if the appropriate preoperative
consultation and planning and intraoperative surgical management would have
In Castillo v. August, Castillo underwent spinal surgery, was subsequently
transferred to a rehabilitation facility under the care of Dr. August, and developed
a staph infection in the surgical site and meningitis. See 248 S.W.3d 874, 882–
83 (Tex. App.—El Paso 2008, no pet.).
Castillo sued Dr. August and other
defendants alleging that Dr. August had a duty to observe and monitor her
incision for any sign of infection and that his failure to do so resulted in the staph
infection and life-threatening meningitis. Id. at 878. The expert report opined
that Dr. August should have personally and vigilantly monitored Castillo‘s status
because she had presented upon admission to the rehabilitation facility with
signs and symptoms of infection and that he should have identified, examined,
diagnosed, and taken measures to treat the infection.
Id. at 882.
causation, however, the expert report by Dr. Pacheco stated only that ―Dr.
August‘s breach of the standard of care ‗caused Ms. Castillo to suffer the
meningitis and caused the need to remove the hardware that [the surgeon] had
implanted in Ms. Castillo‘s spine—given the advanced and uncontrolled state of
the infection in her back.‘‖ Id.
Holding that the expert report was deficient concerning causation, the
Castillo court held,
Dr. Pacheco does not adequately link Dr. August‘s actions to
Ms. Castillo‘s subsequent ―raging infection‖ and staph meningitis.
His narrative of events does not discuss delusional behavior,
meningitis, or a subsequent surgery to debride the wound and
remove the hardware. Nor does he explain how the infection in her
back caused the meningitis. While a claimant is not required to
conclusively prove her case through a preliminary expert report, the
report may not merely state conclusions about any of the elements.
Dr. Pacheco‘s expert report requires us to infer causation, which,
under the ―four corners‖ rule, we are not permitted to do.
Id. at 882–83 (citations omitted).
Similarly, this court held in Collini that the
discussion of causation in the expert‘s report was conclusory because it did not
―provide any medical detail as to how the Reglan caused [the claimant‘s]
conditions or, more importantly, how Dr. Collini‘s specific prescriptions of Reglan
(beyond the taking of Reglan generally) attributed to the harm.‖ 280 S.W.3d at
In this case, Dr. Heard‘s report does not contain any discussion as to why
Tomas developed the life threatening complications; why she required additional
surgery, intensive care treatment, and prolonged hospitalization; how Tomas‘s
medical condition progressed; or how Dr. Cortez‘s action or inaction brought
about each stage in Tomas‘s worsening medical condition. Thus, the trial court
was required to infer causation, meaning Dr. Heard‘s report does not sufficiently
address the link between Dr. Cortez‘s alleged breaches of the standard of care
and Tomas‘s injuries. See id. at 467–68; Castillo, 248 S.W.3d at 882–83. We
therefore sustain Appellants‘ fifth issue.
VI. Disposition After Partial Reversal
Appellants contend that we should render judgment dismissing Tomas‘s
claims with prejudice, and Tomas counters that we should remand the case so
that the trial court may consider granting thirty additional days to cure the
deficiencies. As we stated in Collini, ―The Texas Supreme Court has held that
section ‗74.351‘s plain language permits one thirty-day extension when the court
of appeals finds deficient a report that the trial court considered adequate.‘‖ 280
S.W.3d at 468 (quoting Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008)).
Accordingly, we will remand this case to permit the trial court the opportunity to
consider granting Tomas an extension to cure the deficiencies in Dr. Heard‘s
Having sustained part of Appellants‘ first issue all of their second and fifth
issues and having overruled the remainder of Appellants‘ first issue and all of
their third and fourth issues, we affirm in part and reverse in part the trial court‘s
order and remand this case to the trial court to determine whether Tomas should
be granted an extension to cure the deficiencies discussed in this opinion.
PANEL: GARDNER, MCCOY, and GABRIEL, JJ.
DELIVERED: February 9, 2012