Opinion
No. 06-20-00093-CV
05-06-2021
STAVAN PARMAR, M.D., Appellant v. RHONDA COLBURN, Appellee
On Appeal from the 278th District Court Walker County, Texas
Trial Court No. 2029705 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Stavan Parmar, M.D., challenges the trial court's denial of his motion to dismiss healthcare liability claims brought by Rhonda Colburn, who experienced complications after Parmar performed a laparoscopic hiatal hernia repair and endoscopy. Colburn filed an expert report that the trial court found deficient but provided an opportunity to cure. Parmar argues that the trial court abused its discretion in failing to dismiss Colburn's claims because the amended expert report, filed within the extended period, was deficient on the issue of causation.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
We sustain Parmar's point of error because we conclude that Colburn's amended expert report offers only a conclusory opinion on the issue of causation. Because Colburn is not entitled to a second thirty-day extension to cure the report, we reverse the trial court's denial of Parmar's motion to dismiss and render judgment dismissing Colburn's claims.
(1) Factual and Procedural Background
On April 16, 2018, Colburn underwent a "robotic-assisted laparoscopic hiatal hernia repair with mesh and Nissen fundoplication with gastropexy" that was performed by Parmar. During the operation, but after the mediastinal dissection and reduction of the hiatal hernia, Parmar also completed an upper endoscopy that revealed no injury to the esophagus or stomach.
Even so, Colburn's "post-operative course was complicated by a persistent leukocytosis, new-onset atrial fibrillation, pneumonia and pneumonitis, and atelectasis." On April 18, "a chest CT showed significant pneumomediastinum, a left apical pneumothorax and bilateral pleural effusions," which Colburn alleged could be an indication of leakage from the esophagus, stomach, or esophagogastric junction. Additional imaging on April 24 showed enlarging and prominent air-fluid level in the lower chest at the juncture of the chest and abdomen, and the radiologist, Jason Pulnik, M.D., provided a differential diagnosis of "a large recurrent hernia and/or postoperative leak." On April 26, "a CT of the abdomen and pelvis . . . showed a large, approximately 15 by 7.7 by 7.5 cm collection of gas and oral contrast material in the inferior aspect of the chest suspicious for a leak from the distal esophagus or esophagogastric junction." When radiologist Jerry Nam, M.D., communicated the results of this scan to Parmar, Parmar admitted Colburn to the intensive care unit of Methodist Medical Center.
"Pneumonitis" means an "inflammation of the lungs." Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 621 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
"Atelectasis" is "[t]he collapse of all or part of a lung." Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at *1 n.3 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.).
"Pneumomediastinum" "means there is air tracking through the injured lungs into the mediastinum which can evolve into a pneumothorax." Williams v. Viswanathan, 64 S.W.3d 624, 634 (Tex. App.—Amarillo 2001, no pet.).
On April 27, Min Peter Kim, M.D., a thoracic surgeon, performed a left thoracotomy to repair the esophageal perforation and an esophagogastroduodenoscopy and esophageal stent placement to divert esophageal content away from the site of the attempted repair. Colburn's condition deteriorated, and she developed renal insufficiency and required placement on a ventilator. On April 29, after performing a total esophagectomy, endoscopy, gastrostomy tube placement, left neck exploration, washout of the left chest, and right thoracotomy, Kim found a dead esophagus and paper-thin trachea.
Colburn endured a protracted hospital stay and two months of rehabilitation after this surgery. After completing her rehabilitation, Colburn "underwent an esophago-jejunal roux-en-y reconstruction by Dr. Kim on September 20, 2018, and "required multiple subsequent dilations of the anastomosis on December 7, 2018, December 27, 2018, [and] February 14, 2019[,] secondary to the development of a stricture leading to dysphagia and the inability to take adequate oral intake."
In her lawsuit against Parmar, Colburn alleged that Parmar was negligent because he failed to carefully monitor, diagnose, and treat an esophageal perforation. According to Colburn, Parmar "violated the standard of care by not performing endoscopy or surgical re-exploration earlier to timely identify and treat the esophageal perforation." Colburn alleged that this medical negligence resulted in a transfer to Methodist Medical Center for emergency esophageal repair, later removal of the esophagus altogether, and prolonged hospitalization and treatment.
To support her claims, Colburn filed the expert report of Bipan Chand, M.D. Chand's report recited the history of Colburn's care consistent with that set out above. Chand noted that esophageal injuries can occur during hiatal hernia repairs and that "the standard of care after these procedures is to carefully monitor for signs and symptoms of perforation and treat to prevent significant injury." Chand said that the standard of care required "[r]adiographic studies such as CT scans" and performance of an endoscopy after a patient shows signs and symptoms of perforation "or . . . surgical re-exploration or a contrast esophagram." Chand added that "[a]ctual visualization is the most accurate method of ruling out the presence of an esophageal perforation," which is repaired surgically when timely recognized.
Chand's qualifications are not challenged.
As for the standard of care, breach, and causation, Chand wrote:
To a reasonable degree of medical certainty, it is my opinion that Mrs. Rhonda Colburn's esophageal perforation and secondary procedures and treatments were caused by her surgery on April 16, 2018 by Dr. Stavan Parmar. The diagnosis of esophageal perforation was delayed and occurred on April 26, 2018, which necessitated the transfer to Methodist Medical center [sic], emergent attempt at esophageal repair, subsequent removal of the esophagus and prolonged hospitalization until May 21, 2018 . . . . To a reasonable degree of medical certainty, it is my opinion that Dr. Stavan Parmar and the other health care providers from Huntsville Memorial Hospital failed to timely diagnosis [sic] Mrs. Colburn's esophageal perforation. Mrs. Colburn continued to demonstrate clinical findings consistent with an esophageal leak or perforation including, but not limited to, the radiographic presence of free air, pneumothorax, pneumoperitoneum, bilateral pleural effusions, leukocytosis, and general poor overall clinical appearance. The standard of care with this clinical presentation is to perform additional investigation with endoscopy or re-exploration to visualize the anatomy to effectively rule out esophageal injury. To a reasonable degree of medical certainty, it is my opinion that Dr. Stavan Parmar and the health care providers at Huntsville Memorial failed to timely diagnosis [sic] and treat Mrs. Colburn's esophageal perforation that occurred on April 16, 2018. Their failure to timely diagnosis [sic] Mrs. Colburn's esophageal perforation was a violation of the standard of care. Dr. Stavan Parmar, as a general surgeon, violated the standard of care by not performing endoscopy or surgical re-exploration earlier to timely identify and treat the esophageal perforation. Esophageal leaks or perforations require timely diagnosis and treatment to prevent further injury. Dr. Stavan Parmar and the other health care providers failed to meet the requisite standard of care in their treatment of Mrs. Colburn.
Furthermore, to a reasonable degree of medical certainty, it is my opinion that had Mrs. Colburn been diagnosed with an esophageal perforation earlier, her subsequent care and medical costs would've been significantly lessened.
In my judgment, to a reasonable degree of medical certainty, the injuries sustained by Rhonda Colburn were caused by the injury of the esophagus that occurred during her index surgery on April 16, 2018. Dr. Stavan Parmar and the health
care providers at Huntsville Memorial failed to meet the standard of care to timely diagnosis [sic] and treat her esophageal injury. This delay in diagnosis led to Mrs. Colburn's injuries and would've been lessened with earlier diagnosis and treatment.
Parmar challenged Chand's report and moved to dismiss Colburn's healthcare-liability claims. Parmar noted that Chand did not discuss Colburn's prior medical history or Pulnik's differential diagnosis suggesting the possibility that Colburn's symptoms were consistent with a recurrent hernia. While Chand's report opined that the standard of care required performance of an endoscopy, Chand did not address how Parmar breached the standard of care given that he had performed an endoscopy immediately after the surgery and that the results revealed "no injury to the esophagus or stomach." Parmar also argued that Chand's report lumped in other healthcare providers who were responsible for Colburn's care and stated, in a manner Parmar claimed was conclusory, that "Parmar and the health care providers . . . failed to meet the standard of care to timely diagnose and treat" Colburn's injuries. Because the report failed to specify how Parmar, as opposed to other medical providers, breached the applicable standard of care, Parmar argued that Chand's opinions as to breach and causation were conclusory.
"Texas case law clearly states that the expert reports tendered by a health-care-liability claimant must clearly explain and address the elements as to each named defendant in a health-care-liability action." Hillcrest Baptist Med. Ctr. v. Payne, No. 10-11-00191-CV, 2011 WL 5830469, at *12 (Tex. App.—Waco Nov. 16, 2011, pet. denied) (mem. op.).
The trial court agreed with Parmar. It found Chand's expert report insufficient but gave Colburn thirty days to amend the report in accordance with Section 74.351(c) of the Texas Civil Practice and Remedies Code.
Chand filed an amended expert report that repeated his earlier report, but also added an addendum. The addendum added that Parmar was responsible for diagnosing and treating complications from surgery, including perforations. Because the "standard of care require[d] clinical correlation regardless of test results," Chand opined that Parmar should have performed an endoscopy, contrast esophagram, or surgical re-exploration, "regardless of any radiology, testing, or opinions made by other health care providers" because Colburn continued to exhibit signs and symptoms of perforation. According to Chand, "Even if other health care providers, such as radiologists, misinterpret[ed] or misdiagnose[d], it [wa]s still the responsibility of the attending surgeon to possess a high level of clinical suspicion to make appropriate decisions to diagnose and treat surgical complications." Chand added,
Intraoperative endoscopy is defined as any endoscopy performed in the immediate preoperative phase or during the procedure itself. After the procedure is completed, the patient enters the postoperative phase and the standard of care of the attending surgeon is to possess a high index of clinical suspicion for any complications that manifest during or after the procedure. In Ms. Colburn's case, Dr. Parmar's negative findings during intraoperative endoscopy became irrelevant as she demonstrated signs and symptoms of a perforation after surgery. Given these clinical findings, Dr. Parmar possessed a duty to ensure the standards of care were met by performing postoperative endoscopy, contrast esophagram, or surgical re-exploration to timely diagnosis and treat Ms. Colburn's perforation.
Parmar challenged Chand's amended expert report. Parmar argued that Chand's "half-page" addendum did not cure any deficiency because the report assumed Parmar perforated Colburn's esophagus during her hernia surgery, and that assumption was contradicted by the fact that Parmar conducted an endoscopy to "check[] the esophagus immediately after the hernia surgery and saw no injury." Parmar argued that Chand did not question his conduct during the hernia repair or opine that the endoscopy conducted afterward was faulty. Parmar also argued that the report was conclusory in different ways, including that Chand (1) said Parmar should have "timely" diagnosed and treated the perforation without stating what date would have been timely, (2) said there were signs and symptoms of perforation without specifying what signs and symptoms of perforation Colburn exhibited, (3) "lodged innuendoes of negligence by other doctors" without specifying how they were negligent or whether it impacted the issue of causation, and (4) included a conclusory determination of causation as to Parmar's alleged negligence.
The trial court held a brief hearing on Parmar's motion to dismiss. After making the following comments, the trial court denied Parmar's motion to dismiss Colburn's claims:
I'm going to let the case go forward, but I'm going to tell you quite frankly, I've been to the Tenth Court [of Appeals] on these cases, and I think this one is probably the shakiest one I've dealt with yet, but I'm going to let it go forward just because I want another opinion, and you're obviously not going to offend me if they send it back and tell me I'm wrong. I think you're on thin ice, but I'm going to allow the case to go forward.
(2) Standard of Review and Applicable Law
Section 74.351 of the Texas Civil Practice and Remedies Code requires a plaintiff who files a healthcare-liability claim to "provide each defendant physician or health-care provider with an expert report which provides 'a fair summary of the expert's opinions' as of the date of the report" on "the applicable standards of care, the manner in which the care rendered failed to meet the applicable standards, and the causal relationship between that failure and the claimed injury." Hoffman v. Samples, No. 10-17-00196-CV, 2017 WL 4413437, at *2 (Tex. App.—Waco Oct. 4, 2017, no pet.) (mem. op.) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (r)(6)). "The purpose of the expert report requirement is to deter frivolous claims, not to dispose of the claims regardless of their merits." Id. (quoting Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011)).
"We review all rulings related to Section 74.351 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard." Id. (citing Jelinek v. Casas, 328 S.W.3d 526, 538-39 (Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001)). "Although we defer to the trial court's factual determination[s], we review questions of law de novo." Id. (citing Haskell v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2012, no pet.)). "A trial court has no discretion in determining what the law is, which law governs, or how to apply the law." Id. "An abuse of discretion occurs if the trial court fails to correctly apply the law to the facts or if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles." Id. (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)).
"When a plaintiff timely files an expert report and a defendant moves to dismiss on the basis that the report is insufficient, the trial court must grant the motion only if the report does not represent a good-faith effort to meet the statutory requirements." Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l)). "To constitute a good-faith effort, a report 'must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.'" Id. (quoting Palacios, 46 S.W.3d at 875) (citing Wright, 79 S.W.3d at 52).
"A report cannot merely state the expert's conclusions about these elements; instead, the report must explain the basis of the statements and link the conclusions to the facts." Id. at *3 (citing Wright, 79 S.W.3d at 52; Jelinek, 328 S.W.3d at 539-40). "A report that merely states the expert's conclusions about the standard of care, breach, and causation is deficient." Id. (citing Palacios, 46 S.W.3d at 879). "Further, a report that omits any of the statutory elements is likewise deficient." Id. (citing Palacios, 46 S.W.3d at 879). "In determining whether the trial court's ruling on a motion to dismiss was correct, we review the information contained within the four corners of the report." Id. (citing Wright, 79 S.W.3d at 53). "The report can be informal in that the information in the report does not have to meet the same requirements as evidence offered in a summary-judgment proceeding or at trial." Id. (quoting Palacios, 46 S.W.3d at 879). We "must view the report in its entirety, rather than isolating specific portions or sections, to determine whether it includes [the required] information." Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018) (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015)).
(3) Chand's Expert Report Is Deficient on the Issue of Causation
Parmar completed an upper endoscopy that showed there was no injury to the esophagus or stomach on April 16, 2018, after the mediastinal dissection and reduction of the hiatal hernia. Chand's expert report did not allege that Parmar breached any standard of care during the April 16 surgery or that he did not correctly perform the endoscopy on that date. Rather, Chand believed that Parmar breached the standard of care by failing to timely diagnose a postoperative leak.
After surgery, Colburn exhibited "persistent leukocytosis, new-onset atrial fibrillation, pneumonia and pneumonitis, and atelectasis." A chest CT conducted on April 18 showed "significant pneumomediastinum, a left apical pneumothorax and bilateral pleural effusions," which Chand wrote "can be a manifestation of leakage from the esophagus, stomach or esophagogastric junction." An x-ray on April 24 resulted in differential diagnosis of "a large recurrent hernia and/or postoperative leak." No evidence demonstrated the times when the results of the CT or the x-ray were returned or communicated to Parmar. When Parmar was notified about the results of the April 26 CT with contrast, he transferred Colburn to an ICU under Kim's care.
On the issue of the standard of care, Chand's report stated, "After the procedure is completed, the patient enters the postoperative phase and the standard of care of the attending surgeon is to possess a high index of clinical suspicion for any complications that manifest during or after the procedure." Chand said that Colburn experienced "signs and symptoms" of perforation and that, "[g]iven these clinical findings, Dr. Parmar possessed a duty to ensure the standards of care were met by performing postoperative endoscopy, contrast esophagram, or surgical re-exploration to timely diagnosis and treat Ms. Colburn's perforation." On the issue of breach, Chand said Parmar violated the standard of care by "failing to timely recognize" Colburn's "clinical signs and symptoms of a perforation and he failed to timely diagnose and treat her perforation" by performing "postoperative endoscopy, contrast esophagram, or surgical re-exploration."
Even assuming, without deciding, that Chand's report was sufficient on the standard of care and breach of that standard of care, Chand was still required to show a causal relationship between that failure and the claimed injury. On the issue of causation, Chand merely stated that "had Mrs. Colburn been diagnosed with an esophageal perforation earlier," her injuries, "subsequent care[,] and medical costs would've been significantly lessened." Chand's expert report fails to explain the basis for his opinion on the issue of causation.
The Texas Supreme Court in Jelinek noted:
It is not enough for an expert simply to opine that the defendant's negligence caused the plaintiff's injury. The expert must also, to a reasonable degree of medical probability, explain how and why the negligence caused the injury. We have rejected expert opinion not grounded in sound evidentiary basis: "[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. '[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.'" City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)); see also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009) ("Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable.").Tex. Home Health Skilled Servs., LP v. Anderson, No. 10-17-00096-CV, 2017 WL 4079595, at *4 (Tex. App.—Waco Sept. 13, 2017, no pet.) (mem. op.) (alterations in original) (quoting Jelinek, 328 S.W.3d at 536).
"In satisfying this 'how and why' requirement, the expert need not prove the entire case or account for every known fact; the report is sufficient if it makes 'a good-faith effort to explain, factually, how proximate cause is going to be proven.'" Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 224 (Tex. 2018). Yet, "[w]ithout factual explanations, the reports are nothing more than the ipse dixit of the experts, which . . . are clearly insufficient." Id. (quoting Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017)). Thus,
[w]hen the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and state that "in medical probability" the injury was caused by the defendant's negligence. The expert must explain why the inferences drawn are medically preferable to competing inferences that are equally consistent with the known facts. Thus, when the facts support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact-finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion. See Lenger [v. Physician's Gen. Hosp., Inc.], 455 S.W.2d [703,] 707 [ (Tex. 1970) ] ("[E]xpert testimony that the event is a possible cause of a condition cannot ordinarily be treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal explanations, it becomes more likely than not that the condition did not result from the evidence."); Hart [v. Van Zandt], 399 S.W.2d [791,] 792 [(Tex. 1966)] ("The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor's negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury.").Anderson, 2017 WL 4079595, at *4 (alterations in original) (quoting Jelinek, 328 S.W.3d at 536).
As Colburn notes, while Chand's expert report opines that Colburn's perforation was caused by her surgery on April 16, it does not suggest that Parmar's negligence caused any perforation. It faults Parmar for untimely postoperative diagnosis of a perforation. Yet, Chand does not explain what injuries, if any, could have been avoided had Parmar diagnosed the esophageal perforation earlier. The report fails to state whether, had the perforation been found after the first CT on April 18, Colburn could have avoided either the thoracotomy to repair the esophageal perforation or the other procedures performed by Kim. It does not address whether Colburn, whose condition worsened after Kim's surgery, would have had a better outcome absent any negligence by Parmar or if she would have avoided any subsequent treatment or the "dead esophagus and paper-thin trachea" that was found after she developed renal insufficiency and was placed on a ventilator subsequent to Kim's first surgery. As a result, Chand's report does not explain how and why Parmar's alleged negligence in failure to timely diagnose the perforation caused Colburn's injuries, as opposed to postoperative leak or the perforation itself, whenever and however it was caused. See St. Joseph Reg'l Health Ctr. v. Gonzales, No. 10-17-00088-CV, 2017 WL 2623055, at *1 (Tex. App.—Waco June 14, 2017, pet. denied) (mem. op.) (citing 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." (citing Tenet Hosps., Ltd. v. Barnes, 329 S.W.3d 537, 543 (Tex. App.—El Paso 2010, no pet.) ("There can be no analytical gap between a breach of the standard of care and the ultimate harm.")))); see also Gunn v. McCoy, 554 S.W.3d 645, 665 (Tex. 2018); Mooring v. Britton, No. 07-20-00253-CV, 2021 WL 537205, at *3 (Tex. App.—Amarillo Feb. 12, 2021, pet. filed) (mem. op.) (finding an expert report insufficient on causation because, "[w]ithout an understanding of why and when the bleeding began," the court of appeals could not determine that the patient's "hemorrhagic shock was more likely than not caused by a negligent act of or omission by [the doctor]"); Anderson, 2017 WL 4079595, at *4 (finding expert report deficient because it failed to consider other significant risk factors or equally plausible cause of plaintiff's injury). Instead, it simply assumes that Colburn's injuries, medical care, and cost "would've been significantly lessened." See Fields v. Good Shepherd Hosp., Inc., No. 06-17-00001-CV, 2017 WL 2350456, at *4 (Tex. App.—Texarkana May 31, 2017, pet. denied) (mem. op.) (finding expert report stating that absence of negligence "could have likely prevented an unnecessary surgery and hospitalization" was conclusory opinion on issue of causation). Because Chand's expert report "raise[d] no more than a possibility of causation" and because "an analytical gap exists between the breach and the injury that cannot be cured without drawing impermissible inferences," it was conclusory and, therefore, deficient as to the causation element. See Anderson, 2017 WL 4079595, at *4; Gonzales, 2017 WL 2623055, at *4 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539-40; Barnes, 329 S.W.3d at 543; Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.)). Accordingly, we sustain Parmar's point of error.
Moreover, Colburn is not entitled to a second thirty-day extension to cure Chand's report. Gonzales, 2017 WL 2623055, at *1. "[U]nder section 74.351(c) of the Civil Practice and Remedies Code, a court may grant only one thirty-day extension to cure any deficiencies in an expert report." Id. at *4 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex. 2008) ("As Leland and the dissent read the statute, a thirty-day extension is only permitted if the trial court determines that the report is deficient. We see nothing in the statute's text to support such an interpretation. Rather, the provision states that one thirty-day extension may be granted when 'elements of the report are found deficient,' and does not confine that review to a particular court.")). Because Colburn had already obtained one thirty-day extension to cure deficiencies in her expert report, "she is not entitled to another extension of time to cure these deficiencies." Id.
Having sustained Parmar's point of error, we reverse the trial court's order denying Parmar's motion to dismiss and render judgment dismissing Colburn's claims against Parmar with prejudice. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(2) (providing for the dismissal of a healthcare-liability claim with prejudice if the claimant fails to timely serve a compliant expert report)).
Josh R. Morriss, III
Chief Justice Date Submitted: April 28, 2021
Date Decided: May 6, 2021