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In Villafani, appellant, Juan Mario Villafani, M.D., appealed the trial court's denial of his motion for dismissal and sanctions based on appellee's, Adela Trejo's, failure to file a report that complied with the expert report requirements of section 13.01 of the former Act.
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No. 13-04-449-CV
Memorandum Opinion Delivered and Filed October 6, 2005.
On Appeal from the 197th District Court of Cameron County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
By one issue, appellant, Juan Mario Villafani, M.D., appeals the trial court's denial of his motion for dismissal and sanctions for failure to file an expert report that conformed to the requirements of former article 4590i of the Texas Revised Civil Statutes.
See Medical Liability and Insurance Improvement Act of Texas, 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 Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 10.09, 2003 Tex.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)). Because the repealed act was in effect at the time Trejo filed this lawsuit, we will refer to it by its former statutory designation, article 4590i.
We dismiss for lack of jurisdiction.
Appellee Adela Trejo sued Villafani alleging medical negligence. On November 25, 2003, Trejo produced her expert report required by § 13.01(d) of 4590i of the Texas Revised Civil Statutes. Villafani filed his Motion for Sanctions and dismissal alleging the report was inadequate. The trial court denied Villafani's motion on April 7, 2004. Trejo then filed a notice of non-suit on her claims against Villafani, see TEX. R. CIV. P. 162, and the trial court dismissed the claims without prejudice on July 29, 2004. Subsequently, appellant appealed to this Court, challenging the trial court's denial of his motion. We conclude that this Court lacks subject matter jurisdiction to review the interlocutory order because it was rendered moot by the trial court's subsequent dismissal of the case. See FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994). The non-suit vitiated the order and rendered any controversy moot. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). The motion for sanctions and dismissal was not a pending claim at the time the non-suit was granted. Accordingly, rule 162 cannot be a basis for jurisdiction. See TEX. R. CIV. P. 162. This appeal is therefore dismissed for lack of jurisdiction.
DISSENTING MEMORANDUM OPINION
By one issue, appellant Juan Mario Villafani, M.D., appeals the trial court's denial of his motion for dismissal and sanctions for failure to file an expert report that conformed to the requirements of former article 4590i of the Texas Revised Civil Statutes. Because I conclude we have jurisdiction, I write separately. Respectfully, I would reverse and remand.
See Medical Liability and Insurance Improvement Act of Texas, 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)). Because the repealed act was in effect at the time Trejo filed this lawsuit, I will refer to it by its former statutory designation, article 4590i.
I. Background
In her live pleading, appellee Adela Trejo alleged that (1) Villafani closed a colostomy and repaired a hernia, and (2) post-surgically, she developed a serious abdominal infection. To comply with section 13.01(d) of 4590i, Trejo tendered an expert report which stated, in part:
Former Texas Revised Civil Statute article 4590i, section 13.01(d) provided:
Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily nonsuit the action against the physician or health care provider.
Trejo also tendered a second expert report which addressed the standard of care for home health care. That report stated, in part, that Trejo underwent surgery on June 14, 2002. "Her post-operative course was complicated by the development of a wound seroma. This became infected and required drainage on 8/7/02."
The standard of care regarding colostomy closure predicates that no foreign material be implanted at the time that colon surgery is performed. If foreign material implanted within the body is exposed to colonic bacteria, contamination is inevitable, and the foreign material becomes a nidus for ongoing infection, which persists until the foreign material is removed. Dr. Villafani ignored that standard, and this resulted in a suppurative, persistent wound infection. . . . [Other] choices would have avoided contamination of foreign material implanted in a contaminated field.
Villafani filed a motion for sanctions and to dismiss, asserting insufficiency of the expert report as a matter of law. After a hearing, the trial court denied the motion in open court and signed an order memorializing the ruling. Trejo nonsuited the claims against Villafani. The trial court signed an order dismissing the case without prejudice. The order denying the statutory motion to dismiss became final and appealable. This appeal timely ensued. Respectfully, I conclude we have jurisdiction. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) ("Under Texas procedure appeals may be had only from final orders or judgments.").
Prior to the nonsuit, the order denying the dismissal motion was interlocutory and unappealable. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014 (Vernon Supp. 2004-05).
Villafani did not waive the right to complain. See Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003) ("[T]o establish an intent to waive the right to dismissal under section 13.01(e), the defendant's silence or inaction must be inconsistent with the intent to rely upon the right to dismissal. For example, if the defendant fails to object to the report's inadequacy until after the case is disposed of on other grounds, waiver may be implied." (citing Martinez v. Lakshmikanth, 1 S.W.3d 144 (Tex.App.-Corpus Christi 1999, pet. denied)).
II. Standard of Review
The standard of review of a trial court's order either dismissing or refusing to dismiss a claim for failure to comply with the expert report requirements in section 13.01(d) of article 4590i 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 the trial court's judgment. Id. at 52; Salazar v. Canales, 85 S.W.3d 859, 862 (Tex.App.-Corpus Christi 2002, no pet.).
III. Sufficiency of the Expert Reports
The Medical Liability and Insurance Improvement Act, see TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon Supp. 2004-05), defines an expert report as a written report by an expert that provides 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. art. 4590i 13.01(r)(6). In considering a motion to dismiss, the issue for the trial court is whether the report represents a good-faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 878; see also TEX. REV. CIV. STAT. ANN. art. 4590i § 13.01(l).
Under subsections 13.01(l) and (r)(6), the expert report must represent only a good-faith effort to provide a fair summary of the expert's opinions. Palacios, 46 S.W.3d at 878. A report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the elements identified in the statute. Id. In setting out the expert's opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. Id. 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. Nor can a report meet these purposes and thus constitute a good-faith effort if it omits any of the statutory requirements. Id. To avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. Id. 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. When the expert report's conclusory statements do not put the defendant or the trial court on notice of the conduct complained of, section 13.01(l) affords the trial court no discretion but to conclude that the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was breached, as section 13.01(r)(6) requires. Id. at 880. In this case, Villafani argues that the expert reports were inadequate and, thus, dismissal was mandatory. In particular, Villafani asserts that the reports failed to establish any causal relationship between the alleged negligence and the injury, harm, or damages claimed.
"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).
Trejo alleged that she underwent two surgeries and subsequently developed a serious infection. The first expert report states:
If foreign material implanted within the body is exposed to colonic bacteria, contamination is evitable, and the foreign material becomes a nidus for ongoing infection, which persists until the foreign material is removed. Dr. Villafani ignored that standard and this resulted in a . . . wound infection.
I conclude that the report does not inform Villafani of the specific conduct Trejo has called into question. The "expert must explain the basis of his statements to link his conclusions to the facts." Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999); Windsor v. Maxwell, 121 S.W.3d 42, 50-51 (Tex.App.-Fort Worth 2003, pet. denied) (finding statement conclusory as to causation because it did not explain how the complained of action caused the injury). The report provides a bare conclusion regarding the statutory element of causation. Further, because the report also reflects an "ongoing infection" and Trejo's sole allegation in her live pleading was that she developed a serious infection, I conclude that the report does not provide a basis for the trial court to find that the claim had merit. See Palacios, 46 S.W.3d at 878-79. Thus, I conclude that the first report is inadequate. Id. The second report addresses only the standard of care for home health services and omits the standard of care applicable to Villafani, a physician. I conclude it is, thus, also inadequate as to Villafani. See Palacios, 46 S.W.3d at 879.
IV. Conclusion
I would sustain the sole issue presented. Because the expert reports are inadequate as a matter of law, the trial court had no discretion but to dismiss with prejudice and award reasonable attorney fees. See TEX. REV. CIV. ANN. art. 4590i, § 13.01(e)(1),(3). Accordingly, I would reverse and remand for further proceedings. TEX. R. APP. P. 43.2(d).
Villafani's counsel testified as to a reasonable attorney fee after the trial court ruled on the motion to dismiss without the opportunity for opposing counsel to cross-examine.