Opinion
No. 05-16-01258-CV
03-21-2017
JOEL HENDRICKS, M.D. AND TEXAS HEALTH PHYSICIANS GROUP A/K/A SURGICAL ASSOCIATES OF KAUFMAN, Appellants v. JOHN PERALES, Appellee
On Appeal from the County Court At Law No. 1 Kaufman County, Texas
Trial Court Cause No. 94963-CC
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Schenck
Opinion by Justice Fillmore
In this interlocutory appeal, appellants Joel Hendricks, M.D. and Texas Health Physicians Group a/k/a Surgical Associates of Kaufman (THP) challenge the trial court's order overruling their joint objections to appellee John Perales's expert's report and denying their joint motion to dismiss Perales's health care liability claims against them. In two issues, Dr. Hendricks and THP contend the trial court abused its discretion by overruling their joint objections and denying their joint motion to dismiss because Perales's expert's report under chapter 74 of the civil practice and remedies code failed to sufficiently address Dr. Hendricks's standard of care, the manner in which Dr. Hendricks purportedly breached the standard of care, and the purported causal relationship between the alleged breach of the standard of care by Dr. Hendricks and Perales's injuries and damages. Because we conclude the expert's report is deficient with regard to the statutory element of causation, we reverse the trial court's order overruling Dr. Hendricks and THP's joint objections to the expert's report and remand the case to the trial court to consider whether a thirty-day extension of time for Perales to attempt to cure the deficiency is appropriate.
Background
Factual Allegations
Perales sued Dr. Hendricks for negligence in the rendering of medical treatment to him. Perales sued THP under the doctrine of respondeat superior for Dr. Hendricks's negligence. Given the procedural posture of this case, we draw the facts from the allegations against Dr. Hendricks in Perales's live petition in the trial court.
Perales also sued Texas Health Presbyterian Hospital-Kaufman, but that party was non-suited by Perales and is not a party to this appeal.
On March 8, 2014, Dr. Hendricks diagnosed Perales with right and left inguinal hernias and recommended a bilateral laparoscopic surgical procedure to repair the hernias. Dr. Hendricks performed this surgical procedure on March 27, 2014. During the procedure, surgical mesh was placed over the hernia; however, extra mesh was left inside the abdominal cavity after the cavity was deflated and the incision closed. Perales alleges the surgical mesh was negligently placed or inserted in a way that made it highly susceptible to infection and complications.
Perales followed the post-operative instructions provided by Dr. Hendricks. However, at a follow-up visit on April 2, 2014, Perales reported bloody bowel movements, positional fever, and a high level of pain when lying on his left side. Dr. Hendricks noted there was swelling and bruising in Perales's scrotum, but told Perales that despite his severe pain, he was "doing well." Dr. Hendricks recommended another follow-up visit in May 2014.
Perales continued to have extreme abdominal pain and contacted Dr. Hendricks on April 8, 2014. Dr. Hendricks instructed Perales to go to the emergency room of Texas Health Presbyterian Hospital-Kaufman, where Perales was diagnosed with abdominal abscesses and advanced-stage sepsis. Perales was then transferred to Texas Health Presbyterian Hospital-Dallas for further treatment. During his hospitalization from April 8 to May 19, 2014, fluid was drained from Perales's pelvic area on multiple occasions in order to address the infection. Perales alleges he was "in-and-out" of hospitals for many months thereafter and he continues to experience abdominal pain and limitation of his ability to function in connection with the activities of daily life.
Perales alleges the following acts or omissions by Dr. Hendricks proximately caused his injuries and damages:
i. Improperly assessing the degree of necessity for surgery;
ii. Failing to properly prepare the area for surgery;
ii. [sic] Failing to properly suture the surgical wounds;
iii. Using improper mesh and/or applying the mesh improperly to the hernia;
iv. Leaving the mesh exposed, thereby increasing the chance of infection;
v. Providing [Perales] with improper after-care instruction;
vi. Failing to adequately monitor [Perales]'s health during and after surgery; and
vii. Using improper technique while performing [Perales]'s hernia repair surgery.
Procedural History
Prior to the expiration of Perales's 120-day expert report deadline under section 74.351(a) of the civil practice and remedies code, Perales served Dr. Hendricks and THP with the expert report of I. Michael Leitman, M.D. Dr. Hendricks and THP objected to Dr. Leitman's report and moved to dismiss Perales's claims based on asserted insufficiencies of Dr. Leitman's report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2) (West Supp. 2016). Dr. Hendricks and THP also requested that the trial court award them their reasonable attorneys' fees and costs. See id. § 74.351(b)(1). After hearing Dr. Hendricks and THP's joint objections and motion to dismiss, the trial court overruled their objections and denied their motion to dismiss. Dr. Hendricks and THP filed this interlocutory appeal challenging the trial court's order overruling their joint objections and denying their joint motion to dismiss. See id. 51.014(a)(9) (West Supp. 2016).
Standard of Review
We review a trial court's order on a motion to dismiss a health care liability claim based on the sufficiency of an expert's report for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 791 (Tex. App.—Dallas 2009, no pet.). We must defer to the trial court's factual determinations if they are supported by the evidence, but review its legal determinations de novo. Van Ness, 461 S.W.3d at 142. A trial court has no discretion in determining what the law is or in applying the law to the facts. Sanchez v. Martin, 378 S.W.3d 581, 587 (Tex. App.—Dallas 2012, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
Analysis
In their first issue, Dr. Hendricks and THP contend the trial court abused its discretion by overruling their joint objections to Dr. Leitman's report because the expert report failed to sufficiently address Dr. Hendricks's standard of care, the manner in which Dr. Hendricks purportedly breached the standard of care, and the purported causal relationship between the alleged breach of the standard of care by Dr. Hendricks and Perales's injuries and damages. Dr. Hendricks and THP assert Dr. Leitman's report fails to set out the specific conduct called into question and does not explain the basis of Dr. Leitman's statements or link his conclusions to the underlying facts. Dr. Hendricks and THP assert Dr. Leitman's opinions (1) as to the standard of care and breach of the standard of care are conclusory and lack specificity; and (2) as to causation are conclusory, do not sufficiently "explain the basis of his statements," and do not link his conclusions to the facts of the case. Dr. Hendricks and THP further assert that because all claims against THP are vicarious and based on the alleged negligence of Dr. Hendricks, Perales's failure to meet the expert report requirements with regard to Dr. Hendricks requires Perales's claims against THP must also be dismissed.
No direct negligence claim has been advanced against THP and it was not necessary, therefore, to mention THP by name in Dr. Leitman's report. See Univ. of Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.) (claims against medical center were based entirely upon actions of resident physicians; because claimants were not alleging direct liability of medical center, expert report was not required to mention medical center by name).
Applicable Law
Chapter 74 of the civil practice and remedies code governs health care liability claims. Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 316 n.3 (Tex. App.—Dallas 2008, no pet.). Any person who brings suit asserting a health care liability claim must, within 120 days after each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports for each physician or health care provider against whom a health care liability claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). An "expert report" is a written report 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 of care, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 51 (Tex. 2002) (per curiam).
A trial court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of "expert report" in section 74.351(r)(6). TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012). To represent an objective good faith effort to comply with the statutory requirements of chapter 74, the expert report must (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016); see also Loaisiga, 379 S.W.3d at 260. If a report omits any of the statutory elements of section 74.351(r)(6), it cannot be considered a good faith effort. Sanchez, 378 S.W.3d at 588. A report is deficient if it states only the expert's conclusions about the standard of care, breach of the standard of care, or causation. See Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex. App.—Dallas 2012, no pet.).
In determining whether the expert report represents an objective good faith effort to comply with the statutory requirements, the court's inquiry is limited to the four corners of the report. Id.; Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet. denied) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)); see also Jelinek, 328 S.W.3d at 539 (to determine whether expert report complies with section 74.351, courts consider the information "found within the four corners of the expert report, which need not 'marshal all the plaintiff's proof' but must include the expert's opinion on each of the three main elements: standard of care, breach, and causation"). The "'report cannot merely state the expert's conclusions about these elements,' but 'the expert must explain the basis of his statements to link his conclusions to the facts.'" Jelinek, 328 S.W.3d at 539 (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). "We may not 'fill gaps' in an expert report by drawing inferences or guessing what the expert likely meant or intended." Hollingsworth v. Springs, 353 S.W.3d 506, 513 (Tex. App.—Dallas 2011, no pet.); see also Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (court is precluded from filling gaps in an expert report by drawing inferences or guessing as to what the expert likely meant or intended) (citing Bowie Mem'l Hosp., 79 S.W.3d at 53).
Application of the Law
The questions presented are whether Dr. Leitman's report provided a fair summary of his opinions regarding the applicable standard of care, the manner in which the care rendered by Dr. Hendricks purportedly breached the standard of care, and the purported causal relationship between the alleged breach of the standard of care by Dr. Hendricks and Perales's injuries and damages. See TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6); Bowie Mem'l Hosp., 79 S.W.3d at 51.
In his expert report, Dr. Leitman sets out his understanding of the underlying facts based on the medical records he reviewed. In 2004, Perales had a right inguinal hernia repair with mesh. The right inguinal hernia began to recur in 2014; Perales also noted a left groin mass. On March 18, 2014, Dr. Henricks confirmed Perales had bilateral inguinal hernias and recommended a bilateral laparoscopic inguinal hernia repair. Dr. Hendricks performed a bilateral inguinal hernia repair on March 27, 2014. "The patient had considerable intestines, including the right appendix in the hernia defects, but they were reducible." In connection with the right inguinal hernia, Dr. Hendricks reduced the hernia sack and dissected it from the surrounding tissue. Dr. Hendricks noted there was mesh visible on the right side; the mesh was not removed because it was outside the hernia defect. The left inguinal hernia was also repaired. The sigmoid colon was not noted in the operative report to be present within "the" hernia. A transabdominal prosthetic repair was performed. Perales was discharged from the hospital that day.
In his April 2, 2014 follow-up visit with Dr. Hendricks, Perales reported he was experiencing positional fever when lying on his left side and rated his pain as eight to nine on a scale of one to ten. Dr. Hendricks noted the surgical incisions were healing well without sign of infection or complications, although he noted some swelling in Perales's scrotum and some bruising. Perales was to have a follow-up visit with Dr. Hendricks in a month.
On April 8, 2014, Perales went to the emergency room of Texas Health Presbyterian Hospital-Kaufman complaining of abdominal pain. The emergency room physician noted Perales's symptoms included two bloody bowel movements, fever, and left testis swelling in the groin area. Perales was diagnosed with an abdominal abscess and sepsis. Radiologic evaluation demonstrated a large lower pelvis abscess on the left side extending into a canal connecting the abdomen and the scrotum. "[T]esting showed large fluid" in the same canal on the right side without evident connection to the pelvis abscess. Perales was admitted to Texas Health Presbyterian Hospital-Kaufman for percutaneous drainage and antibiotic therapy. Dr. Hendricks requested Surgical Radiology at Texas Health Presbyterian Hospital-Dallas be contacted, and Perales subsequently was transferred and admitted to Texas Health Presbyterian Hospital-Dallas.
Physical examination of Perales on April 9, 2014, at Texas Health Presbyterian Hospital-Dallas revealed hernias of the right and left groin, swelling and tenderness in the right and left testis, and a large area of swelling and tenderness in the groin area. The diagnosis included a hernia, abscess, and a possible fistula. Perales underwent drainage of the pelvic/groin fluid, and "studies suggested a connection to the sigmoid colon (fistula)." Additional drains were placed. Fluid drained was found to be polymicrobial. Perales was also diagnosed with C. Difficile infection on April 15, 2014.
On May 6, 2014, Perales was discharged from Texas Health Presbyterian Hospital-Dallas. In 2015, Perales required removal of the mesh and a sigmoid colectomy.
Standard of Care
Although Dr. Hendricks and THP contend Dr. Leitman's report failed to satisfy the statutory requirement that an expert report contain a fair summary of the expert's opinion regarding the applicable standard of care, Dr. Leitman opined the applicable standard of care in performing a bilateral laparoscopic inguinal hernia repair requires that a surgeon take all necessary steps to avoid an injury to the sigmoid colon or an intestinal segment in the area of inguinal hernia repair. Dr. Leitman stated that, in order to avoid such an injury, the surgeon must be careful to separate any neighboring intestine from the area of the hernia repair. Dr. Leitman also opined that injury to the sigmoid colon during laparscopic hernia surgery is not an acceptable risk of the procedure.
See Gonzalez v. Padilla, 485 S.W.3d 236, 250 (Tex. App.—El Paso 2016, no pet.) (in determining whether expert report set out the applicable standard of care with sufficient detail, the court of appeals considered the entire document, and not merely the portion contained under a subheading titled "Standard of Care").
A "fair summary" of the standard of care "is something less than a full statement of the applicable standard of care and how it was breached." Fagadau v. Wenkstern, 311 S.W.3d 132, 138 (Tex. App.—Dallas 2010, no pet.) (quoting Palacios, 46 S.W.3d at 880). A fair summary need only inform the doctor what care was expected but not given. Id. Here, Dr. Leitman's report sets forth what was expected from Dr. Hendricks in performing the bilateral laparoscopic inguinal hernia repair—taking all necessary steps to avoid injury to the sigmoid colon or an intestinal segment. We conclude Dr. Leitman's opinions regarding the standard of care are not conclusory and provide sufficient specificity with regard to the care that Dr. Leitman opined Dr. Hendricks should have given. Accordingly, we conclude the trial court did not abuse its discretion in concluding Dr. Leitman's report sufficiently addressed the statutory element of the standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
Breach of Standard of Care
Although included in the "Standard of Care" paragraph of his report, Dr. Leitman provided the following information regarding the alleged breach of the standard of care by Dr. Hendricks:
[A]void[ing] injury to the colon during the repair of the hernia . . . should have been possible in this case. The sigmoid colon was not noted to have been incarcerated within the hernia and surgical manipulation of the sigmoid colon to reduce the hernia was not noted. Rather, this injury occurred because Dr. Hendricks failed to take the necessary steps to protect the sigmoid colon during his repair.Dr. Leitman opined the treatment provided by Dr. Hendricks "fell below the standard of care required of a general surgeon by not avoiding the injury to the sigmoid colon." In "Summary," Dr. Leitman opined that injury to the sigmoid colon "was avoidable had Dr. Hendricks complied with the standard of care expected of a general surgeon."
Dr. Hendricks and THP assert Dr. Leitman's opinions as to the element of breach of the applicable standard of care are conclusory and lack specificity. We disagree. In his report, Dr. Leitman set out a fair summary of his opinion concerning the manner in which the care rendered by Dr. Hendricks failed to meet the standard of care, that is, by failing to protect the sigmoid colon during the bilateral laparoscopic inguinal hernia repair. See Fagadau, 311 S.W.3d at 138. Accordingly, we conclude the trial court did not abuse its discretion in concluding Dr. Leitman's report sufficiently addressed the statutory element of breach of the standard of care. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
Causation
With regard to causation, the question presented is whether Dr. Leitman's report provided enough factual explanation to render his opinion nonconclusory; that is, whether Dr. Leitman's report supplied the "how and why" of a causal relationship between Dr. Hendricks's purported breach of the applicable standard of care and Perales's injuries and damages. See Jelinek, 328 S.W.3d at 549-40. Included in the paragraph entitled "Breach of the Standard of Care," Dr. Leitman stated with regard to causation that if Dr. Hendricks "had not inured [sic] the sigmoid colon, all of the care and treatment from April 2014 through May 2015 would not have been necessary." As to the requisite "Causal Relationship," Dr. Leitman opined:
As a result of the injury to the sigmoid colon caused by Dr. Hendricks, Mr. Perales developed abscess and infection in the area of the hernia repair and consequently underwent all of the procedures over the more than one year after Dr. Hendricks' surgery. This is [sic] includes the insertion of multiple drains, intravenous antibiotics, sigmoid colectomy and resection of the hernia mesh.In "Summary," Dr. Leitman opined that "more likely than not had John Perales been treated according to the standards required of a general surgeon, the complications and necessary treatment would not have occurred." Dr. Leitman stated that "[t]hese breaches of the standard of care" constitute negligence, and such negligence "was, in reasonable medical probability, the proximate cause of the abscesses and the colonic fistula, the need for percutaneous drainage, intravenous antibiotics, the sigmoid colectomy surgery and the need to remove the mesh in 2015."
A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that, absent this act or omission, the harm would not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.). Causation is generally established in medical malpractice cases through evidence of a "reasonable medical probability" or "reasonable probability" that the alleged injuries were caused by the negligence of one or more defendants; in other words, the plaintiff must present evidence "that it is 'more likely than not' that the ultimate harm or condition resulted from such negligence." Jelinek, 328 S.W.3d at 532-33 (quoting Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993)). Statements based on reasonable medical probability, without explanation and without tying conclusions to the facts, are not sufficient. Id. at 539. "[T]he expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented." Id. at 539-40; see also Van Ness, 461 S.W.3d at 142 ("An expert must explain, based on facts set out in the report, how and why the breach caused the injury."); Tenet Hosps., Ltd. v. Garcia, 462 S.W.3d 299, 308 (Tex. App.—El Paso 2015, no pet.) (expert's opinion "should certainly include an articulable, complete, and plausible explanation of how the alleged breaches [of the standard of care] led to the damages sustained").
The expert's report must not be conclusory in its explanation of causation; it "must explain the basis of [the expert's] statements to link his conclusions to the facts." Bowie Mem'l Hosp., 79 S.W.3d at 52 (quoting Earle, 998 S.W.2d at 890); see Taylor v. Fossett, 320 S.W.3d 570, 575 (Tex. App.—Dallas 2010, no pet.) (expert report must contain sufficiently specific information to demonstrate causation beyond conjecture); see also Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008) (quoting BLACK'S LAW DICTIONARY 308 (8th ed. 2004)) (defining "conclusory" as "[e]xpressing a factual inference without stating the underlying facts on which the inference is based"); Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.—El Paso 2008, no pet.) ("While a claimant is not required to conclusively prove [his] case through a preliminary expert report, the report may not merely state conclusions about any of the elements."). An expert may show causation by explaining a chain of events that begins with a defendant health care provider's negligence and ends in injury to the plaintiff. See Mitchell v. Satyu, No. 05-14-00479-CV, 2015 WL 3765771, at *8 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.). However, "[a]n expert's mere conclusion that 'in medical probability' one event caused another differs little, without an explanation tying the conclusion to the facts, from an ipse dixit, which the supreme court has consistently criticized." Id. at *4; see also Jelinek, 328 S.W.3d at 539.
While Dr. Leitman's report provides a fair summary of the bases of his opinions concerning the standard of care (that injury to the sigmoid colon is to be avoided in performing a bilateral laparoscopic inguinal hernia repair) and the manner in which the care rendered by Dr. Hendricks failed to meet the standard of care, his report fails to provide a fair summary of the basis of his opinion on the statutory element of causation. See Jelinek, 328 S.W.3d at 539-40. With respect to causation, Dr. Leitman merely opines in a conclusory manner that, as a result of the injury to the sigmoid colon, Perales developed abscess and infection in the area of the hernia repair and consequently underwent various procedures over more than one year, including the insertion of drains, administration of intravenous antibiotics, performance of a sigmoid colectomy, and resection of the hernia mesh. Dr. Leitman's report fails to supply the "how and why" of a causal relationship between Dr. Hendricks's purported breach of the applicable standard of care and Perales's injures and damages based on the facts of the case. See id. at 539; see also Covey v. Lucero, No. 05-16-00164-CV, 2016 WL 7163835, at *6 (Tex. App.—Dallas Nov. 17, 2016, no pet.) (mem. op.) (opinion that negligent acts and omissions were "major contributing factors" to patient's death, without explaining the link between the breach in standards of care and subsequent consequences presents only speculative and conclusory possibility of causation). We may not "fill gaps" in Dr. Leitman's report by drawing inferences or guessing what he likely meant or intended. See Hollingsworth, 353 S.W.3d at 513.
Because Dr. Leitman's report did not satisfy the statutory element of causation by setting out a fair summary of the basis of his opinion as to the causal relationship between the purported breach of the standard of care and Perales's injuries and damages, the report is deficient. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Accordingly, we conclude the trial court abused its discretion in concluding Dr. Leitman's report sufficiently addressed the statutory element of causation and overruling Dr. Hendricks and THP's joint objections to Dr. Leitman's report. We resolve Dr. Hendricks's and THP's first issue in their favor.
Remand for Opportunity to Amend
If an expert report has not been served within the period specified by section 74.351(a) of the civil practice and remedies code because elements of the report are deficient, the trial court may grant one thirty-day extension of time to cure the deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); see Tenet Hosps., Ltd. v. De La Riva, 351 S.W.3d 398, 407-08 (Tex. App.—El Paso 2011, no pet.) (upon finding that trial court abused its discretion in denying the defendant doctor's motion to dismiss, proper course of action was to remand the case to the trial court to consider whether the deficiencies could be cured, and therefore, whether to grant an extension of time) (citing Leland v. Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)); see also Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (stating a deficient report may be cured by amending the report or by serving a new report from a separate expert that cures the deficiencies in the previous report). The trial court "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." Tenet Hosps. Ltd. v. Bernal, 482 S.W.3d 165, 176 (Tex. App.—El Paso 2015, no pet.) (citing Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011)); see also Walker v. Gutierrez, 111 S.W.3d 56, 61(Tex. 2003) ("failure to make the grace period available to parties who have timely filed inadequate reports would provide a perverse incentive by rewarding parties who do nothing and punishing those who attempt to comply with the statute but fail. We do not believe the Legislature intended such a result.").
In response to Dr. Hendricks and THP's joint objections to Perales's expert report and joint motion to dismiss, Perales asserted Dr. Leitman's report satisfied the requirements of chapter 74 but requested that if the report was found to be deficient, he be granted the thirty-day extension of time under section 74.351(c) of the civil practice and remedies code to cure any deficiency. We have concluded Perales's expert's report was deficient because it did not contain a fair summary of the basis of his opinion concerning the statutory element of causation. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). Because Perales has not been given an opportunity to cure the deficiency regarding causation in Dr. Leitman's report, and because Dr. Leitman's report is not so deficient as to constitute no report at all, we remand for the trial court to consider granting a thirty-day extension of time to allow Perales to attempt to cure the deficiency in the expert's report regarding the statutory element of causation.
Based on our resolution of Hendricks's and THP's first issue and our remand of the case to the trial court to consider whether to grant a thirty-day extension of time to allow Perales to attempt to cure the deficiency in the expert's report, we need not address Hendricks and THP's second issue in which they assert the trial court abused its discretion by denying their joint motion to dismiss Perales's health care liability claims against them. See TEX. R. APP. P. 47.1.
Conclusion
We reverse the trial court's order overruling Dr. Hendricks and THP's joint objection to Perales's expert's report regarding causation, and we remand the case to the trial court to consider whether to grant a thirty-day extension of time to allow Perales to attempt to cure the deficiency in the expert's report regarding the statutory element of causation.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 161258F.P05
JUDGMENT
On Appeal from the County Court At Law No. 1, Kaufman County, Texas, Trial Court Cause No. 94963-CC.
Opinion delivered by Justice Fillmore, Justices Whitehill and Schenck participating.
In accordance with this Court's opinion of this date, the September 30, 2016 order of the trial court is REVERSED and this cause is REMANDED to the trial court for proceedings consistent with the opinion.
It is ORDERED that appellants Joel Hendricks, M.D. and Texas Health Physicians Group a/k/a Surgical Associates of Kaufman recover their costs of this appeal from appellee John Perales. Judgment entered this 21st day of March, 2017.