in Re Gustavo \"Gus\" Adolfo Gross, M.D. ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

In re Gustavo AGus@ Adolfo Gross, M.D.

No. 11-05-00167-CV -- Original Mandamus Proceeding

This is an original mandamus proceeding in a health-care liability claim that was filed under the prior law, TEX.REV.CIV.STAT. art. 4590i, ' 13.01 (2003).^[1]  Dr. Gustavo AGus@ Adolfo Gross argues that the trial court should have dismissed the health-care liability claim against him because the expert report originally filed by the real party in interest, Betty Jo Henry, was inadequate.  He also maintains that the trial court erred when it granted Henry an extension of time in which to file a Asupplemental@ expert report.  We conditionally grant the petition for writ of mandamus sought by Dr. Gross.  In re Daniel J. Vaughan, M.D., No. 11-04-00011-CV, 2004 WL 308665 (Tex.App. - Eastland, Feb. 19, 2004, orig. proceeding)(not designated for publication); In re J. Scott Smith, M.D., No. 11-03-00409-CV, 2004 WL 308664 (Tex.App. - Eastland, Feb. 19, 2004, orig. proceeding)(not designated for publication).

Henry filed her health-care liability claim against Dr. Gross on August 29, 2003.  As required by Article 4590i, section 13.01(d), Henry timely filed an affidavit by Andrew Welch, M.D. as her expert report within 180 days of filing her claim.  The date of the Welch affidavit was November 25, 2002, some 9 months prior to Henry filing her claim.  On April 16, 2004, Dr. Gross filed a motion to dismiss Henry=s lawsuit in which Dr. Gross asserted that the report was insufficient as an expert report because it did not comply with the requirements of Section 13.01(r)(6).  In Henry=s response to the motion, she claimed that the report was sufficient as an expert report; and she also claimed that, if the report was found to be insufficient, then it was insufficient because of an accident or mistake and that she requested a 30-day grace period, as provided in Section 13.01(g).

On June 10, 2004, the trial court held a hearing on the motion to dismiss filed by Dr. Gross. At the end of the hearing, the trial court stated:

I do find that the report of Dr. Welch is inadequate.  But, that while it does not omit addressing the required areas under Section 13.01, that it is insufficient to do so in its current state.  Therefore, I am going to grant the request for a 30 day extension to supplement this report, specifically that it should be explaining in non-conclusory connection any causal negligence between Dr. Gross= action and the plaintiff=s resulted injuries, also addressing any familiarity with the standard of care for a family practice physician, along with the general standard of care and the causal connection between and addressing the delay that has been talked about here.

In its order denying Dr. Gross=s motion to dismiss, the trial court made an express finding that the affidavit of Dr. Welch complied Ain all material respects with '13.01 of Article 4590i as it includes the Expert=s opinions on each of the elements identified in '13.01(r)(6).@ The trial court then found that Dr. Welch=s report did not show his qualifications with respect to identifying the standard of care of a general practitioner acting as an emergency room physician in a rural setting.  The trial court gave Henry an additional 30 days, pursuant to Section 13.01(g), to file a supplemental report Athat demonstrates [Dr. Welch=s] qualifications and the articulated standards.@

The original Welch affidavit dated November 25, 2002, did not comply with Section 13.01(r)(6). The short affidavit stated the following on the applicable standard of care and the alleged breach of that standard by Dr. Gross:

5.         I treated Betty Jo Henry for injuries sustained in a motor vehicle accident from December 24, 2001[,] through the present time.

6.         Within a reasonable degree of medical probability, the treatment provided to Betty Jo Henry at Mitchell County Hospital, under the direction and supervision of Dr. Gus Gross fell below the acceptable standard of care.

7.         In the process of treating Betty Jo Henry, I discovered a right inferior and superior pubic ramus fracture, a depression fracture of the right lateral tibial plateau, and an avulsion tip fracture of the right fibula.

8.         By all accounts these fractures were a direct cause of the automobile accident, and were missed by the radiologist at Mitchell County Hospital and Dr. Gus Gross.

9.         Dr. Gus Gross ordered an assessment by physical therapy.  The physical therapist was unable to perform a complete evaluation secondary to extreme pain suffered by Betty Jo Henry.  Dr. Gus Gross ignored the report submitted by the physical therapist.

Dr. Welch=s original affidavit did not set forth the standard of care and medical procedures that a doctor should have followed in diagnosing and treating Henry=s injuries nor did he state how Dr. Gross breached the standard of care.  Dr. Welch=s affidavit further stated that Dr. Gross noted (in the medical records, apparently) that he immobilized her ankle and knee but that the nurse=s notes did not show any type of immobilization device.  Dr. Welch did not state why immobilization was or was not important.  He then concluded that:

The error in diagnosis and the encouragement for early weight bearing...caused Betty Jo Henry to suffer additional injuries including the need for a total knee replacement due to the collapse of the tibial plateau and reflex sympathetic dystrophy.

At the hearing, the trial court correctly stated that a supplemental report by Dr. Welch was needed to explain, in non-conclusory language, the connection between Dr. Gross=s alleged negligence and Henry=s injuries. Henry subsequently filed a much more complete expert report by Dr. Welch; unfortunately, we cannot consider that report.^[2]

A trial court=s decision to dismiss a lawsuit under Section 13.01(e) is reviewed for abuse of discretion.  American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001).  A trial court=s decision to grant the grace period under Section 13.01(g) is also reviewed for abuse of discretion.  Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003). A trial court abuses its discretion if the court acted without reference to any guiding rules or principles or acted in an arbitrary or unreasonable manner.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. den=d, 476 U.S. 1159 (1986).

If an expert report omits any of the statutory requirements of Section 13.01(r)(6), it cannot constitute a good faith effort to comply with the statute.  American Transitional Care Centers of Texas, Inc. v. Palacios, supra.  Dr. Welch=s first report failed to set forth his qualifications to identify the standard of care that Dr. Gross should have followed. The expert report, with its accompanying curriculum vitae, must establish on its face that the purported expert is qualified to opine on the accepted standards of medical care and other requirements of Section 13.01(r)(6).  In re Windisch, 138 S.W.3d 507, 511 (Tex.App. - Amarillo 2004, orig. proceeding). The report also failed to set forth the required standard of care and how Dr. Gross breached that standard of care. A court reviewing the adequacy of a Section 13.01 report can look no further than the report itself because all information required by Section 13.01(r)(6) must be contained within its four corners.  Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Centers of Texas, Inc. v. Palacios, supra at 878.

Section 13.01(d) required that a claimant file an expert report, together with a curriculum vitae of the expert, within 180 days of filing suit or voluntarily nonsuit the action.  Henry filed the original Welch report within the 180 days, but the June 10 hearing on Dr. Gross=s motion to dismiss was held after the 180 days had elapsed.  Walker v. Gutierrez, supra, pointed out that there is no distinction between a motion to dismiss under subsection (e) for failure to file any report and a motion to dismiss under subsection (l) for failure to file an adequate report. In both instances, the sanction is dismissal.  Id. at 61.  To avoid dismissal for filing an inadequate report, Henry requested that the trial court grant her a 30-day extension under Section 13.01(g) to comply with Section 13.01(r)(6), claiming that her failure Awas not intentional or the result of conscious indifference but was the result of an accident or mistake.@

The only evidence that Henry=s failure was an accident or mistake was her counsel=s statement that he honestly and in good faith believed that the original report met the requirements of Section 13.01. In Walker, the supreme court held that, if a report omits one or more of the elements required by Section 13.01(r)(6), a mistaken belief that the report is sufficient is not the type of mistake that would entitle a claimant to the grace period provided for in Section 13.01(g).  Walker v. Gutierrez, supra.  The trial court abused its discretion in granting Henry a 30-day extension to file another report.

The petition for writ of mandamus is conditionally granted.  A writ of mandamus will issue if the trial court does not enter an order within 20 days that (1) finds that the original Welch report was inadequate under Article 4590i, (2) denies the grace period requested by Henry, (3) rejects the Asupplemental@ report, and (4) grants Dr. Gross=s motion to dismiss.

TERRY McCALL

June 23, 2005                                                              JUSTICE

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]Although applicable to this case, TEX.REV.CIV.STAT. art. 4590i (1999) was repealed effective September 1, 2003; and the subject matter is now governed by TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (Vernon 2005).  Matters regarding expert reports are specifically governed by Section 74.351.

^[2]Dr. Welch=s second affidavit did set forth the required standard of care and how Dr. Gross breached it.