Opinion
No. 01-02-00191-CV.
Opinion issued February 27, 2003.
Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 01-29883.
Panel consists of Justices HEDGES, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Ann Moore, individually, as representative of the estate of her deceased husband, Frederick Moore, and as next friend of their two children, brought this medical malpractice action against appellees, Kelsey-Seybold Medical Group, P.A., Dr. L. Bradford Hays, Dr. Chuong Nguyen, Dr, William H. Fisherman, and Dr. Randal R. Stavinoha. In her sole point of error, appellant contends that the trial court erred in dismissing her suit for want of prosecution. We affirm.
Facts and Procedural Background
On June 13, 2001, Moore filed her original petition against appellees under the Texas Medical Liability and Insurance Improvement Act ("the Act") Moore alleged that appellees were negligent in failing to diagnose and treat her husbands coronary artery disease. On September 13, 2001, ninety-two days after filing her original petition, Moore filed an affidavit of Dr. Ajay Mitter as her expert report in lieu of her cost bond or cash deposit for each physician and health care provider named in the action. Appellees filed a motion for cost bond, objecting to the adequacy of Dr. Mitter's affidavit as an expert report. On October 22, 2001, the trial court sustained appellee's objection and ordered Moore to post cost bonds of $7,500 for each appellee not later than 21 days after the court's order. On November 26, 2001, the trial court, based upon Moore's failure to pay the cost bonds within 21 days of the court's order, signed an order dismissing Moore's claims for want of prosecution.
TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon Supp. 2003).
See Id. § 13.01(a).
See Id. § 13.01(b).
Adequacy of The Expert Report
Moore contends that the trial court erred in sustaining appellees' objection to Dr. Mitter's affidavit because it met the statutory requirements of an expert report. See TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(r)(6).
We review a trial court's decision to dismiss a suit under section 13.01(b)(2) of article 4590i for an abuse of discretion. Am. Transitional Care v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)
In a medical malpractice case, a claimant must, for each physician and health care provider named in the petition, within 90 days of filing suit, file a $5,000 cost bond, deposit $5,000 into an escrow account, or file an "expert report." TEX. REV. Civ. STAT. ANN. art. 4590i, § 13.01(a). An "expert report" is defined as:
[A] written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 13.01(r)(6).
A trial court must 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 a good faith effort to comply with the statutory definition of an expert report. Id. § 13.01(1). To constitute a good faith effort, the report must inform the defendant of the specific conduct the claimant has called into question and provide a basis for the trial court to determine that the claims have merit. Palacios, 46 S.W.3d at 879. A report that states only the expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id. Nor can a report meet these purposes and thus constitute a good faith effort if it omits any of the statutory requirements. Id. The court should look no further than the four corners of the report in conducting a good faith inquiry. Id. at 878.
In his affidavit, Dr. Mitter states that he is "completely familiar with the standards of care for all physicians treating a patient such as Frederick Moore, deceased, regardless of their specialties." However, Dr. Mitter fails to explain or discuss the applicable standards of care for each appellee in his or her particular treatment of the decedent. Although Dr. Mitter further states that, "[n]one of the Defendant physicians took the appropriate action to evaluate and treat the cause of Mr. Moore's conditions and illnesses," he fails to specify the manner in which each appellee failed to meet his or her applicable standard of care. Dr. Mitter also contends that, "Mr. Moore would have been able to receive proper treatment and would have more likely than not survived," if the appellees had referred the decedent to an endocrinologist or a cardiologist. However, Dr. Mitter does not identify a causal relationship between the specific conduct of each appellee and the decedent's death. Dr. Mitter's affidavit offers conclusory statements that do not identify the specific actions of each appellee or explain how his or her actions contributed to the decedent's death.
We hold that the trial court did not abuse its discretion in finding that Dr. Mitter's affidavit did not represent a good faith effort to comply with the statutory procedural requirements of the Act. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002). Because Moore failed to file a $5,000 cost bond, deposit $5,000 in an escrow account, or file an adequate "expert report" in regard to each appellee, the trial court was required to order Moore to file a $7,500 cost bond with respect to each appellee within 21 days of the order. When Moore further failed to file a $7,500 cost bond with respect to each appellee, the trial court was required to dismiss the action for want of prosecution.
Conclusion
We affirm the order of the trial court.