Harold Bruce Hamilton, M.D. and Texas Neurological & Pain Institute, P.A. v. Timothy Durgin ( 2008 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-08-00146-CV
    HAROLD BRUCE HAMILTON, M.D.
    AND TEXAS NEUROLOGICAL &
    PAIN INSTITUTE, P.A.,
    Appellants
    v.
    TIMOTHY DURGIN,
    Appellee
    From the 19th District Court
    McLennan County, Texas
    Trial Court No. 2007-3898-1
    MEMORANDUM OPINION
    Timothy Durgin filed suit against Dr. Harold Bruce Hamilton and Texas
    Neurological & Pain Institute, P.A., alleging that the defendants were negligent in the
    performance of lumbar fusion surgery on him, which resulted in a post-operative
    infection leading to an infection of his bones. After receiving Durgin’s expert report, the
    defendants moved for a dismissal of the suit pursuant to section 74.351(b) of the Texas
    Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)
    (Vernon 2008). The trial court denied the motion, and the defendants appealed. 
    Id. § 51.014(9)
    (Vernon 2008). Finding that the trial court did not abuse its discretion in
    denying the motion to dismiss, we affirm its order.
    THE ISSUES
    The      defendants   argue   that   the   trial   court   abused   its   discretion
    because Durgin’s expert reports: 1) with respect to claim 1, negligence in performing the
    surgery, fail to link the surgery performed by defendants with any specific injury
    suffered by Durgin, i.e., a “causation” question; 2) with respect to claim 2, negligence in
    providing post-surgical care, do not rely on the hospital’s records and are thus
    speculative concerning a breach of the standard of care and fail to link the care with any
    injury Durgin suffered; and 3) with respect to claim 3, negligence in treating the post-
    operative infection, do not rely on the hospital’s records so as to have an accurate
    factual basis for the opinion concerning a breach of the standard of care and fail to link
    the care with any injury Durgin suffered. Durgin argues that the trial judge did not
    abuse his discretion because the reports were adequate to meet the requirements of
    chapter 74 of the Civil Practice and Remedies Code. See 
    id. § 74.351(r)(6)
    (Vernon 2008).
    SUFFICIENCY OF THE REPORTS
    When considering a motion to dismiss under Section 74.351, 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. See Bowie Mem'l Hosp. v. Wright, 
    79 S.W.3d 48
    , 52 (Tex.
    2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 
    46 S.W.3d 873
    , 878 (Tex.
    2001). An “expert report” means:
    Hamilton, et al v. Durgin                                                             Page 2
    A written report by an expert that provides a fair summary of the expert’s
    opinions as of the date of the report regarding the 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.
    TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). To constitute a "good-faith effort," the
    report must discuss the standard of care, breach, and causation with sufficient
    specificity to fulfill two purposes: (1) to inform the defendant of the specific conduct the
    plaintiff has called into question; and (2) to provide a basis for the trial court to
    conclude that the claims have merit. 
    Bowie, 79 S.W.3d at 52
    ; 
    Palacios, 46 S.W.3d at 879
    .
    The trial court should look no further than the report itself, because all the
    information relevant to the inquiry is contained within the document's four corners.
    
    Bowie, 79 S.W.3d at 52
    ; 
    Palacios, 46 S.W.3d at 878
    . The report must include the expert's
    opinion on each of the three elements that the statute identifies: standard of care,
    breach, and causal relationship. 
    Id. Although an
    expert report need not marshal all the plaintiff's proof, the expert
    may not merely state conclusions about the required elements of standard of care,
    breach, and causation. 
    Bowie, 79 S.W.3d at 52
    . Rather, an expert must explain the basis
    of his opinions and link his conclusions to the facts. 
    Id. (citing Earle
    v. Ratliff, 
    998 S.W.2d 882
    , 890 (Tex. 1999)).
    We review a trial court's order on a motion to dismiss a claim for failure to
    comply with the expert report requirements under an abuse-of-discretion standard.
    
    Bowie, 79 S.W.3d at 52
    ; 
    Palacios, 46 S.W.3d at 878
    . When reviewing matters committed
    to the trial court's discretion, we may not substitute our own judgment for the trial
    Hamilton, et al v. Durgin                                                                Page 3
    court's judgment. See Flores v. Fourth Ct. of Appeals, 
    777 S.W.2d 38
    , 41 (Tex. 1989),
    modified on other grounds by National Tank Co. v. Brotherton, 
    851 S.W.2d 193
    (Tex. 1993).
    The defendants essentially argue the merits of Durgin’s claim, relying on
    documents and information outside of the reports. After reviewing the reports, we
    agree with Durgin that the trial court was justified in finding that they discuss the
    standard of care, breach, and causation with sufficient specificity to fulfill the two
    required purposes: (1) inform the defendants of the specific conduct the plaintiff has
    called into question; and (2) provide a basis for the trial court to conclude that the
    claims have merit. 
    Bowie, 79 S.W.3d at 52
    ; 
    Palacios, 46 S.W.3d at 879
    . Thus, the trial
    court did not abuse its discretion in denying the defendants’ motion to dismiss.1
    Appellants’ issues are overruled, and the trial court’s order is affirmed.
    BILL VANCE
    Justice
    Before Chief Justice Gray,
    Justice Vance, and
    Justice Reyna
    Affirmed
    Opinion delivered and filed November 5, 2008
    [CV06]
    1Our conclusion would be the same if we did a de novo review of the expert reports, as we suggested
    may be proper in Wooten v. Samlowski, ___ S.W.3d ___, ___ n.1, 
    2008 WL 2133072
    at *1 n.1 (Tex. App.—
    Waco May 21, 2008, pet. filed).
    Hamilton, et al v. Durgin                                                                     Page 4