Opinion
No. 13-05-082-CV
Memorandum Opinion Delivered and Filed October 6, 2005.
On Appeal from the 206th District Court of Hidalgo County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Appellant, Jose Carreras, M.D., P.A., appeals from the trial court's order denying his motion for dismissal and sanctions pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351 (Vernon 2005). For the following reasons, we affirm the trial court's order.
In his motion for sanctions and dismissal, Carreras argued that the Marroquins failed to provide him with an expert report within the 120-day statutory period. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a). He also argued that the untimely report filed by the Marroquins was insufficient because it did not include a curriculum vitae of the expert. See id.
The lawsuit was filed on February 26, 2004. The Marroquins first produced an expert report in response to requests for disclosure on June 16, 2004, well within the 120-day period. The Marroquins produced a second report on July 27, 2004. The only significant difference between the two reports is that the first report is not signed, whereas the second report bears the signature of the expert.
In his motion, Carreras did not mention the first report produced by the Marroquins, but at the hearing on the motion, counsel argued that the first report failed to meet the requirements of the statute because it was not signed and because it was served in response to requests for disclosures, rather than specifically to comply with section 74.351. Counsel stressed that his "main complaint" was that the report was unsigned.
As a preliminary matter, we reject Carreras's contention that the statute requires an expert report to bear the expert's signature. Nothing in the statute provides for such a requirement. Furthermore, Carreras has failed to show how the absence of a signature prevented the report from fulfilling its purpose of informing the defendant of the specific conduct the plaintiffs have called into question and providing a basis for the trial court to conclude that the claims have merit. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2000). The trial court did not abuse its discretion by overruling appellant's objection to the report for lack of a signature.
Before the trial court, counsel for Carreras further argued that an expert report produced in response to a request for disclosure cannot be used to satisfy the requirements of section 74.351. Although the trial court specifically asked counsel for case law or other authority to support this contention, the record does not indicate that counsel ever produced any such authority. This Court is not aware of any case precedent that would support the position taken by Carreras. The statute itself undermines his argument, as it restricts the use of expert reports only after they have been served. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(k). There is no indication in the record that the Marroquins tried to use the report after it was served for any purpose other than meeting the requirements of section 74.351(a). Even if they had, the restrictions in subsection (k) are not absolute. They are subject to the provision of subsection (t), which allows a claimant to waive the restrictions of subsection (k) by using the report for any purpose other than to meet the service requirement of subsection (a). Thus, it is the claimant's prerogative to waive the restrictions of subsection (k). We therefore hold that the trial court did not abuse its discretion by denying the motion for dismissal based on the report having been used as a response to a request for disclosure.
In relevant part, Subsection (k) of section 74.351 provides:
Subject to Subsection (t), an expert report served under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any purpose.
TEX. CIV. PRAC. REM. CODE ANN. § 74.351(k) (Vernon 2005).
The final complaint made by Carreras is that he was not provided with a curriculum vitae of the expert as the statute seems to require. The statute does not require that a curriculum vitae be produced as a separate document. The purpose of the curriculum vitae requirement is to permit the trial court to perform its "gatekeeper" function by assessing the qualifications, experience, and expertise of the expert. See TEX. CIV. PRAC. REM. CODE ANN. § 74.351(r)(5); see also Raney v. Hall, No. 05-98-01908-CV, 2002 Tex. App. LEXIS 44, *16 (Dallas, January 7, 2002, pet. denied) (designated "do not publish"). The statute does not expressly prohibit a claimant from including the curriculum vitae within the body of the report, as was done in this case.
Although the report could be more detailed, we conclude that the trial court did not abuse its discretion in determining that the report contained sufficient information to determine whether the expert was qualified. In his report, the expert summarizes his education and states "I am Board Certified," "I am a Certified Medical Review Officer," and "I am a Certified Independent Medical Examiner." From these statements, the trial court could have easily determined that the expert is currently practicing medicine.
We disagree with the dissent's conclusion that the word "currently" must be used to specify that the expert is practicing medicine or board certified at the time of the report. It is enough that the expert says "I am certified," as that statement is true only if the expert is currently certified. In this context, the word "currently" is mere surplusage. We cannot conclude, as does the dissent, that the failure to include surplusage renders an otherwise acceptable report inadequate.
It is apparent from the report that the expert's chief criticism of Carreras was his use of a drug containing propoxyphene on a patient with a pre-existing condition of Morquio's Syndrome because such patients are more susceptible to the cardio-toxic effects of drugs like propoxyphene. In our opinion, there is no merit to Carreras's objection that the report does not "afford sufficient information for a defendant or the court to assess the nature of [the expert's] experience" or "its relationship to the claims in issue." The report specifies that the expert is board certified in internal medicine and is a certified medical review officer, relating to the interpretation of drug screen results. The expert is also a certified independent medical examiner, relating to expertise in performing impairment and disability evaluations. The report further states that the expert has experience as an investigator in pharmaceutical research and as a medical director for a chemical dependency unit in a hospital. We believe these statements more than suffice to allow the trial court "to assess the nature of [the expert's] experience" and "its relationship to the claims in issue." We therefore find no abuse of discretion in the trial court's ruling on these matters.
On appeal, Carreras also challenges the adequacy of the report as it relates to causation. The motion to dismiss did not raise any issue regarding the adequacy of the report as to causation. The complaint was therefore not preserved for appellate review, and we do not address it. See TEX. R. APP. P. 33.1(a).
For the foregoing reasons, the order of the trial court is affirmed.
DISSENTING MEMORANDUM PINION
By one issue, appellant, Jose Carreras, M.D., appeals the trial court's denial of his motion for dismissal and sanctions based upon the Marroquins' failure to file an expert report that conforms to the requirements of section 74.351 of the Texas Civil Practice and Remedies Code. Because I conclude the export report is inadequate, I would reverse and render. Thus, I respectfully dissent.
I. Background
On February 26, 2004, the Marroquins brought a medical malpractice case against Carreras. On June 16, 2004, the Marroquins answered requests for disclosure and produced an unsigned expert report purportedly tendered by a physician. The Marroquins contend a portion of that report encompasses the expert's curriculum vitae. On July 28, 2004, the Marroquins provided a report signed by the expert, again with no separate curriculum vitae. On November 10, 2004, Carreras filed a motion for sanctions and for dismissal for failure to comply with the requirements of section 74.351. See TEX. CIV. PRAC. REM. CODE ANN. 74.351 (Vernon 2005). Following a hearing, the trial court denied the motion for sanctions and dismissal. Carreras brings this appeal, complaining that the trial court abused its discretion in failing to grant the motion for sanctions and for dismissal.
The statute requires objections to the sufficiency of an expert report be filed and served no later than 21 days after the report was served, or all objections are waived. Here, because the Marroquins failed to provide the requisite statutory medical authorization, the case was abated on June 2, 2004, until 60 days after the Marroquins supplied that authorization. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon 2005). Appellees concede that the motion to dismiss and for sanctions was timely filed once the abatement terminated on November 9, 2004.
Carreras contends the expert report filed was (1) untimely, and (2) did not comport with the requirements of section 74.351 because (a) no curriculum vitae was included, and (b) the report failed to adequately address causation.
II. Jurisdiction
I agree with the majority that we have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(9) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(9) (Vernon Supp. 2004-05).
III. Standard of Review
The standard of review of a trial court's order to either retain or dismiss a claim, or award or refuse sanctions, for failure to comply with the expert report requirements of this statute is abuse of discretion. See Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court. Id. at 242; Salazar v. Canales, 85 S.W.3d 859, 862 (Tex.App.-Corpus Christi 2002, no pet.). With respect to a trial court's determination of the legal principles controlling its ruling, the standard is much less deferential. "A trial court has no discretion in determining what the law is or applying the law to the facts. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." In re Samonte, 163 S.W.3d 229, 233 (Tex.App.-El Paso 2005, orig. proceeding) (applying TEX. REV. CIV. STAT. ANN. art. 4590i, the predecessor statute to section 74.351).
See Medical Liability and Insurance Improvement Act of Texas, Act of June 16, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at TEX. CIV. PRAC. REM. CODE ANN. 74.001-.507 (Vernon 2005)).
IV. Sufficiency of the Expert Report
The statute requires that an expert report, with a curriculum vitae of each expert listed in the report, be filed for each physician or health care provider against whom a liability claim is asserted not later than the 120th day after the claim was filed. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon 2005). An expert report is defined as a report providing a fair summary of the expert's opinions regarding (1) applicable standards of care, (2) the manner in which the care rendered failed to meet the standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6).
The same requirements existed under the predecessor statute, as identified and discussed in Am. Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).
If the plaintiff does file an expert report, the defendant may challenge its adequacy, and "the trial court must grant the motion if it appears to the court . . . that the report does not represent a good faith effort to comply with the definition of an expert report." Id. § 74.351(l); Palacios, 46 S.W.3d at 877. The expert report must constitute a good-faith effort to provide a fair summary of the expert's opinions, but it need not marshal all the plaintiff's proof. Id. § 74.351(l); Palacios, 46 S.W.3d at 878. It must include the expert's opinion on each of the elements identified in the statute and, in doing so, it must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. Palacios, 46 S.W.3d at 878. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. Id. at 879. A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id.
To avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. Palacios, 46 S.W.3d at 879. The report can be informal in that 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. Id.
"To inform the defendant of the specific conduct the plaintiff has called into question, the report must support the cause of action alleged by the plaintiff in its pleadings." Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex.App.-Fort Worth 2003, pet. denied).
A. Timeliness of the Report
The Marroquins tendered an expert report with their responses to requests for disclosure on June 16, 2004. Carreras contends that because this report was unsigned, undated, and did not include the requisite curriculum vitae, it was inadequate and incomplete as a matter of law. Since no other report was filed until July 28, 2004, which was after the 120-day statutory deadline, see TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon 2005), he contends the expert report was untimely and that dismissal and award of fees and costs is mandatory. Id. § 74.351(b).
The report tendered purports to present the opinions of the expert identified in the letterhead, but it includes no signature. The statute does not require a signature on the report. Id. § 74.351. But see Samonte, 163 S.W.3d at 235-38 (in Samonte, the expert report was unsigned, although that did not form the basis of the court's opinion; instead, the court focused on the absence of the curriculum vitae, a review of the expert's qualifications, and the report's conclusory nature). Noting the inherent difficulty in ascribing an unsigned report to a particular expert, but assuming without deciding that the original, unsigned report at issue in this case was timely filed, my analysis of its adequacy follows.
B. Adequacy of the Report 1. The Curriculum Vitae
Carreras challenges the absence of any curriculum vitae to accompany the report. The Marroquins counter that the first paragraph of the report contains a sufficient statement to constitute the curriculum vitae and that nothing in the statute expressly requires that it be contained in a separate document. The paragraph in the report states:
My name is [expert]. I have been asked to review medical records and to offer expert opinions. I am qualified to opine in such manner due to my education, training and experience. I am Board Certified in Internal Medicine. I have an M.D. degree from the University of Alabama. I also hold a Pharmacy degree from Auburn University, where I received the President's Award as the number one graduate for the year. I am a Certified Medical Review Officer, relating to the interpretation of drug screen results. I am a Certified Independent Medical examiner, relating to expertise in performing impairment/disability evaluations. I have experience as an investigator involved in pharmaceutical research. I have experience as a medical director for a chemical dependency unit in a hospital.
Nothing in the statute necessitates that a curriculum vitae be contained within a separate document. However, inclusion of a curriculum vitae in some form is required. TEX. CIV. PRAC. REM. CODE ANN. § 74.351(a) (Vernon 2005).
The statute in issue sets forth very specific requirements with respect not only to the opinions of an expert tendering a report, but also as to his qualifications which are to be set out in the curriculum vitae. Id. 74.351. Section 74.351(r)(5) defines an "expert" providing such a report as one giving opinion testimony who is "qualified to testify under the requirements of Section 74.401." Id. § 74.351(r)(6). Section 74.401 states that a person may qualify as an expert on the issue of whether a physician departed from accepted standards of medical care,
. . . only if the person is 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) (emphasis added). A "challenge to the adequacy of a[n expert] report" may be based on the failure of the report or the accompanying curriculum vitae to adequately set forth those qualifications. In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding).
A Section 13.01 [now section 74.351(r)(b)] report concerning standards of care for physicians authored by a person who is not qualified to testify . . . thus cannot constitute an adequate report. That the person is so qualified must appear from the report, with its accompanying curriculum vitae. . . . It follows that a challenge to adequacy of a report under Section 13.01(l) [now section 74.351(l)] may be based on a claim that it fails to demonstrate the person rendering the opinion is qualified to testify, as well as on other claims of its inadequacy.
Id. (citations omitted). See also Samonte, 163 S.W.2d at 235. The requirement to furnish a curriculum vitae is therefore not a perfunctory procedural issue, and Carreras has brought such a challenge.
In reviewing the paragraph of the Marroquins' expert report purported to contain the curriculum vitae, as well as the balance of the report, I find no indication that the physician expert is currently practicing medicine or was so practicing at the time the claim arose. Additionally, there is no indication of the state in which he is licensed or board certified. Although there are statements of additional certifications, no agency or entity providing those certifications is identified. The report does not set forth in any detail the expert's experience, but rather makes only conclusory statements that "I am qualified to opine in such manner due to my education, training and experience," "I have experience as an investigator involved in pharmaceutical research," and "I have experience as a medical director for a chemical dependency unit in a hospital." None of these statements afford sufficient information for a defendant or the court to assess the nature of that experience, its relationship to the claims in issue, or whether the physician is actively practicing medicine in rendering medical care services relevant to the claim. See TEX. CIV. PRAC. REM. CODE ANN. § 74.401(a), (b), (c) (Vernon 2005).
At best, speculation is possible from the statements that the physician "is" a certified medical review officer and independent medical examiner, as well as from the address provided on the report.
As such, I conclude that the expert report, with its purported curriculum vitae, is deficient as matter of law. A report that omits any of the statutory requirements does not constitute a good-faith effort and is inadequate. Palacios, 46 S.W.3d at 879.
2. Causation
Carreras has also challenged the tendered report, based upon its failure to adequately demonstrate causation. See Wood v. Tice, 988 S.W.2d 829, 832-33 (Tex.App.-San Antonio 1999, pet. denied) (holding that an expert report did not meet the statutory requirements because it did not name the defendants, state how the defendants breached the standard of care, or demonstrate causation). Because of my conclusion relating to the report's failure to adequately set forth the education and experience qualifications of the tendered expert, I need not reach this issue. TEX. R. APP. P. 47.1.
V. Sanctions
Where an expert report does not satisfy the statutory requirements, such that it does not constitute a good faith effort, the trial court has no discretion but to (1) grant the dismissal of the lawsuit, and (2) award reasonable attorney fees and costs. See Palacios, 46 S.W.3d at 877 880 ("if the plaintiff fails within the time allowed either to provide the expert reports and curriculum vitae, or to nonsuit . . . the trial court must sanction the plaintiff by dismissing the case with prejudice, awarding costs and attorney's fees to the defendant, and ordering the forfeiture of any applicable cost bond necessary to pay that award. . . ."; the statute "affords the trial court no discretion").
I note that although there is a statutory provision by which the court may grant a thirty-day extension to cure any deficiencies in a report, neither party sought relief under this provision in this case. See TEX. CIV. PRAC. REM. CODE ANN. § 74.251(c) (Vernon 2005).
Evidence was tendered in the record to support an award of attorney fees in the amount of $175 per hour, for a total of $5,500, and that the fees are reasonable. In the event of an appeal, a reasonable fee was presented to be $6,000. The evidence also established that, in the event a petition for review were filed, reasonable attorney fees would be $4,000, with an additional $4,000 if the petition were granted. There is no controverting evidence.
VI. Conclusion
Respectfully, I conclude that the tendered expert report, even if it were timely filed, is deficient as a matter of law because it failed to include an adequate curriculum vitae by which to assess the qualifications of the tendered expert. Because the expert report does not satisfy the statutory requirements, it does not constitute a good faith effort as contemplated by the statute. TEX. CIV. PRAC. REM. CODE ANN § 74.351(l); Palacios, 46 S.W.3d at 877. Thus, the trial court had no discretion but to grant the dismissal of the lawsuit and award reasonable attorney fees and costs. See Palacios, 46 S.W.3d at 877 880.
The Supreme Court, in Palacios, specifically found that dismissal and an award of attorney fees are appropriate sanctions, finding no distinction between this situation or other litigation misconduct. Palacios, 46 S.W.3d 873, 878
Accordingly, I would (1) reverse the decision of the trial court, (2) render dismissal of the action, and (3) award as sanctions attorney fees in the amounts requested and costs of court to Carreras.