nick-giannone-md-v-melinda-burch-and-martin-trainer-as-surviving ( 2011 )

Reversed and Remanded and Memorandum Opinion filed December 20, 2011.
In The
Fourteenth Court of Appeals
NO. 14-11-00242-CV
NICK GIANNONE, M.D., Appellant
V.
MELINDA BURCH AND MARTIN TRAINER, AS SURVIVING CHILDREN OF
MARYLYN KAY ANDREWS, DECEASED AND AS REPRESENTATIVES OF
THE ESTATE OF MARYLYN KAY ANDREWS, Appellees
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 57368
MEMORANDUM OPINION
Appellees, Melinda Burch and Martin Trainer, as surviving children of Marylyn
Kay Andrews, deceased and as representatives of the estate of Marylyn Kay Andrews
filed a health care liability suit against appellant, Nick Giannone, M.D. In three issues,
Dr. Giannone contends the trial court erred by denying his motion to dismiss for failure to
serve an adequate expert report. We reverse and remand.
I. BACKGROUND
On July 12, 2009, at approximately 10:30 p.m., Marylyn Kay Andrews was treated
at the Angleton Danbury Medical Center emergency room. Andrews complained of
severe shortness of breath, fever, and a history of chronic obstructive pulmonary disease
(―COPD‖). The first emergency room physician treated Andrews with supplemental
oxygen, Albuterol, and antibiotics.
At midnight, there was a shift change, and Dr. Giannone assumed care of
Andrews. He diagnosed chronic bronchitis, ―acute exacerbation.‖ He also ordered an
EKG. After receiving the EKG results, Dr. Giannone cleared Andrews for discharge.
Later that morning, a radiologist reviewed Andrews‘s films and discovered edema. At
approximately 11:41 a.m., someone called Andrews and advised her regarding this
finding. Andrews told the caller that ―[s]he was doing okay.‖ According to appellees,
Andrews suffocated shortly thereafter.
Appellees filed a health care liability suit against Dr. Giannone, contending his
emergency room treatment of Andrews was below the standard of care as follows:
1. In failing to perform an adequate physical exam before dismissing
[Andrews] from his care;
2. In failing to review and consider [Andrews‘s] records before
dismissing [Andrews] from his care;
3. In failing to specifically perform an adequate work up for cardiac
problems despite [Andrews‘s] multiple risk factors;
4. In specifically failing to prescribe antibiotics upon discharging
[Andrews];
5. In specifically failing to refer [Andrews] to immediate care by a
physician at discharge;
6. In specifically failing to consider cardiomegally and CHF;
7. In failing to follow up [with] the patient with a call to determine
[her] ongoing condition; and
8. In more areas to be determined as discovery continues.
2
Pursuant to section 74.351 of the Civil Practice and Remedies Code,1 appellees
timely served an expert report by Karlan Downing, M.D. Dr. Giannone filed a motion to
dismiss, contending the report did not comport with the statute. In response, appellees
timely served Dr. Downing‘s amended expert report.2 Dr. Giannone filed a second
motion to dismiss which was denied by the trial court.
In her amended report, Dr. Downing referred to her attached curriculum vitae
(―CV‖) with the following attribution: ―As indicated in my CV, I have a great deal of
experience practicing medicine in rural emergent care units and continue to practice
emergency room medicine.‖ Dr. Downing outlined the following education and
experience in her CV:
1976-1998: among other functions, ―[g]eneral surgery backup call for ER when
[general surgeon] was not available‖;
1978-1998: ―ER medicine averaging 24-48 hrs a week (Excluding ‗on call‘ time)‖;
1998-2003: ―Full time practitioner ER Medicine‖ for several hospitals and ER
groups;
2003-2008: among other functions, ―[m]edical director of the ER [of Falls
Community Rural Health Clinic] providing active supervision and quality
assurance functions‖;
2007-present: ―ER staff‖ part time for Lakeside Hospital;
2008-present: medical director for emergency room at East Texas Medical Center;
Among other offices, ―Director of the ER‖ for Lavaca Medical Center;
―ATLS [advanced trauma life support], ACLS [advanced cardiac life support], and
PALS [pediatric advanced life support] certification current‖;3 and
1
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011) (requiring health care liability
claimant to serve an expert report on all parties not later than 120th day after filing the original petition).
2
The trial court never ruled on the adequacy of the original report.
3
Dr. Giannone argues these certifications should not be considered because Dr. Downing did not
explain the meaning of the acronyms. For purposes of this opinion, we presume ATLS, ACLS, and
PALS are widely known certifications in the medical community.
3
Board certified in emergency medicine through AAPS (Dr. Downing did not
specify when she received the certification).4
In her amended report, Dr. Downing offered the following opinions:
3. I have reviewed the records you provided on Marylyn Andrews D/B 6-17-43 from
Angleton Danbury Medical Center. The records reflect that Ms. Andrews was
admitted to the ER . . . on July 12, 2009 and I have found the following discrepancies
which I feel violate the standard of care in this case which involves a person with
COPD being released from a medical center without proper evaluation or follow up
care.
4. In light of the patient‘s history, no significant work up for cardiac problems other
than an EKG was ordered by the attending emergency room physician, Dr. Giannone,
despite multiple risk factors. No lab work such as Beta NP was ordered by Dr.
Giannone to assess for CHF despite risk factors of age and symptoms. The failure of
Dr. Giannone to perform a significant work up was below the standard of care for a
medical center in Texas and such failure contributed to cause the patient‘s untimely
death.
5. There is no documentation that Dr. Giannone was aware of elevated temp of 102.1
as charted on arrival by the nursing staff. Nursing staff notes temp was still slightly
elevated at 99.5 on discharge, and assuming Dr. Giannone knew of these temperatures
and still released Mrs. Andrews, it would be far below the standard of care for
emergency room physicians in Texas and was a contributing cause [of] the patient's
untimely death.
6. Levaquin was ordered by Dr. Gionnone [sic] and given to the patient by IV, but no
RX was given for antibiotics . . . for follow up after release and she was not told to see
a doctor the next day. The failure of Dr. Gionnone [sic] to give an antibiotic and refer
to a physician to be seen the next day was below the standard of medical care in
Texas and contributed to the patient‘s untimely death.
7. Rx for Robitussin AC was faxed to the pharmacy by Dr. Gionnone [sic], but Dr.
Gionnone [sic] did not order antibiotics to follow the levaquin despite elevated temps
and a diagnosis of bronchitis. This was certainly a significant factor in her subsequent
sepsis, was below the standard of care in Texas and contributed to cause her untimely
death.
4
Dr. Giannone argues that little or no weight should be given to Dr. Downing‘s board
certification through AAPS because the Texas Medical Board recently ruled that AAPS is no longer
allowed to confer board certified status. However, Dr. Giannone also notes that physicians who were
board certified through AAPS before September 1, 2010 are excluded from this ruling. Accordingly, we
will consider Dr. Downing‘s board certification.
4
8. Cardiomegally and early CHF were not appreciated by Dr. Gionnone [sic] on the
CXR. This failure to appreciate the cardiomegally was below the standard of care and
contributed to the patient‘s untimely death.
9. Although the patient was called on 7/13/2009 at 11:41 a.m. per the record by
Elizabeth Johnson and ―She said she was doing okay . . .‖ there is no indication that a
physician spoke with the patient and no documentation of status of Ms. Johnson. The
failure of Dr. Gionnone [sic] to make certain that a qualified physician follow up with
appropriate questions on the day after the premature release was below the standard of
medical care in Texas and contributed to cause the patient‘s untimely death.
10. For all of the above stated reasons, individually and collectively, it is my medical
opinion, based on documentation provided, that the standard of care was not met by
Dr. Gionnone [sic] and in my medical opinion the above failures were responsible for
the demise of Marylyn Andrews.
II. ANALYSIS
In three issues, Dr. Giannone contends the trial court erred by denying his motion
to dismiss because (1) Dr. Downing‘s qualifications to offer an expert opinion regarding
Dr. Giannone‘s actions are not shown within the four corners of the expert report, (2) Dr.
Downing did not adequately identify the relevant standards of care, and (3) Dr. Downing
did not adequately explain how Dr. Giannone‘s alleged breach caused harm to Andrews.
We employ an abuse-of-discretion standard in reviewing a trial court‘s
determinations regarding an expert‘s qualifications to render an opinion in a health care
liability suit and adequacy of the expert‘s report. Amer. Transitional Care Ctrs. of Tex.,
Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Broders v. Heise, 924 S.W.2d 148, 151
(Tex. 1996); San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles. Broders, 924 S.W.2d at 151; Bennett, 256
S.W.3d at 811. The plaintiff must show the expert is qualified and the expert report
satisfies the statutory requirements. Mem’l Hermann Healthcare Sys. v. Burrell, 230
S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
5
A. Dr. Downing’s Qualifications
In his first issue, Dr. Giannone contends appellees did not establish that Dr.
Downing is qualified to opine regarding Dr. Giannone‘s emergency room treatment of
Andrews.
For the author of an expert report to satisfy section 74.351, she must be qualified
to render opinions regarding the medical care which is the subject of the claim against the
defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5). Analysis of expert
qualifications under section 74.351 is limited to the four corners of the report and the
expert‘s CV. Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117 (Tex. App.—
Houston [14th Dist.] 2009, no pet.); see Palacios, 46 S.W.3d at 878. To be qualified, the
expert must satisfy the requirements of section 74.401. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(r)(5)(A). Under section 74.401, the expert must be 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) (West 2011). ―Practicing medicine‖ includes, but is not limited to,
training residents or students at an accredited school of medicine or osteopathy or serving
as a consulting physician to other physicians who provide direct patient care, upon the
request of such other physicians. Id. § 74.401(b). In determining whether a witness is
qualified on the basis of training or experience, the court shall consider whether, at the
time the claim arose or at the time the testimony is given, the witness:
(1) is board certified or has other substantial training or experience in an
area of medical practice relevant to the claim; and
6
(2) is actively practicing medicine in rendering medical care services
relevant to the claim.
Id. § 74.401(c).
In his motion to dismiss, Dr. Giannone argued, ―Dr. Downing, in her affidavit,
fails to indicate whether she has knowledge of the accepted and applicable standard of
care and fails to indicate whether she is qualified to render an opinion of the applicable
standard of care based on her training or experience.‖ On appeal, Dr. Giannone contends
Dr. Downing‘s description of her credentials is vague. Dr. Giannone argues, ―[t]here is
no indication . . . [she] has ever seen this kind of case, or even related cases,‖ and [t]here
is no indication of what kind of role she fills in the ER, save that she sometimes worked
as a surgeon as late as 1998.‖ Dr. Giannone argues it is indiscernible whether Dr.
Downing‘s experience in ―ER medicine‖ means she worked as a trauma or triage
physician, emergency surgeon, hospitalist, or in some other capacity. Dr. Giannone also
contends,
At a minimum an expert must at least say they are familiar with the
standard of care for a specific issue, . . . but here we are not given even that.
There is no indication that Dr. Downing is familiar with the specific
situation and her opinions are based on those experiences or if she is
relying on evidence of a more general nature dealing with breaches of a
basic standard of care.
We construe the above language as an argument that appellees failed to demonstrate Dr.
Downing satisfies the qualification requirements prescribed in subsections (a)(2) and
(a)(3) of section 74.401.
In her report, Dr. Downing indicated that she reviewed relevant medical records
and stated, ―I am competent to testify regarding the matters stated herein.‖ Dr.
Downing‘s CV demonstrates that she is board certified in emergency medicine, practiced
―ER medicine‖ for over twenty-five years, and continues to practice emergency room
medicine as medical director for the emergency room of East Texas Medical Center. We
disagree with Dr. Giannone‘s contention that ―ER medicine‖ is a vague term because it
7
refers to a multitude of medical disciplines. Generally, ―ER medicine‖ logically refers to
the medical treatment of patients who present at an emergency room.5
We also conclude the trial court did not abuse its discretion by determining Dr.
Downing‘s board certification in emergency medicine and substantial experience and
continuing practice in emergency room medicine established that she is qualified on the
basis of training or experience to opine regarding the applicable standards of care. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(3), (c); see also Pokluda, 283 S.W.3d at
120 (―The statute provides that a witness is qualified if he is board certified and ‗is
actively practicing medicine in rendering medical care services relevant to the claim.‘
[The expert witness in this case] satisfies this requirement. . . . The statute does not
require an expert to have performed a specific procedure in order to opine.‖ (citations
omitted)); Thomas v. Alford, 230 S.W.3d 853, 857–58 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (―Because the claim in this case relates to the diagnosis and treatment of
cancer, and Grossbard is board certified and practices in the field of oncology, he is
qualified to offer an opinion on the standard of care for the diagnosis and treatment of
cancer.‖).
Nevertheless, we agree appellees failed to establish that Dr. Downing has
knowledge of the accepted standards of medical care involved in this claim. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.401(a)(2). The basis of appellees‘ claim is that Dr.
Giannone caused Andrews‘s death by breaching the standards of care applicable to an
emergency room physician treating a patient with conditions similar to those suffered by
Andrews. In her report, Dr. Downing did not demonstrate that she has knowledge of, or
is familiar with, the accepted standards of care for treating patients who present at an
emergency room with conditions similar to those suffered by Andrews. See, e.g.,
McKowen v. Ragston, 263 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2007, no
5
See Taber‘s Cyclopedic Medical Dictionary (18th ed. 1997) (defining ―emergency medicine‖ as
―Branch of medicine specializing in emergency care of the acutely ill or injured,‖ and explaining that
―emergency room‖ is synonymous with ―Emergency Department,‖ which is defined as ―The portion of
hospital that treats patients experiencing an emergency‖).
8
pet.) (concluding expert demonstrated knowledge of accepted standards of care by stating
he was board certified in infectious diseases, actively practicing medicine in the area of
infectious diseases, has treated patients infected with the same disease suffered by the
decedent, and has knowledge of the standards of care related to these infections based on
his experience); Burrell, 230 S.W.3d at 760 (concluding expert satisfied requirement that
he have knowledge of accepted standard of care by stating he was familiar with
applicable standards and clearly explained those standards); In re Windisch, 138 S.W.3d
507, 514 (Tex. App.—Amarillo 2004, orig. proceeding) (concluding expert‘s statements
insufficient to demonstrate he had adequate knowledge of the accepted standards of care
for the relevant procedure).
Accordingly, it is indeterminable from the four corners of Dr. Downing‘s report
whether she has the requisite knowledge of the applicable standards of care. We
conclude that the trial court erred by finding the report satisfies the requirements of
subsection (a)(2) of section 74.401. Issue one is sustained.
B. Standards of Care, Breach, and Causal Link
We next address Dr. Giannone‘s second and third issues, in which he contends
that Dr. Downing did not provide an adequate opinion regarding applicable standards of
care, Dr. Giannone‘s alleged breach of those standards, and the causal link between each
alleged breach and Andrews‘s death. In determining whether Dr. Downing‘s report
complies with the statute, we decide whether she adequately addressed the allegations in
Plaintiff‘s Original Petition which generally pertain to standards of care for an emergency
room physician.
An ―expert report‖ is defined as ―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 . . . failed to
meet the standards, and the causal relationship between the failure and the injury, harm,
or damages claimed.‖ Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6). The trial court
should grant a motion challenging the adequacy of an expert report only if it appears to
9
the court, after a hearing, that the report does not represent an objective good faith effort
to comply with the statutory definition of an expert report. Id. § 74.351(l).
To provide a fair summary of the applicable standard of care, an expert must
describe the care that was expected but not given. Palacios, 46 S.W.3d at 880. A court
cannot determine whether the standard of care has been breached absent specific
information regarding what should have been done differently. Id. Additionally, an
expert does not fulfill the statutory requirements by generally opining that the defendant‘s
breach caused an injury. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010). Such a
statement is conclusory and provides merely the expert‘s ipse dixit. See id. at 539–40.
Instead, the expert must explain, to a reasonable degree, how and why the breach caused
the injury based on the facts presented. Id. Although ―magical words‖ are not required,
mere invocation of the phrase ―medical probability‖ does not insure that the report will be
found adequate. Id. at 540.
As noted above, Dr. Downing provided the following opinions in her report:
4. In light of the patient‘s history, no significant work up for cardiac problems other
than an EKG was ordered by the attending emergency room physician, Dr. Giannone,
despite multiple risk factors. No lab work such as Beta NP was ordered by Dr.
Giannone to assess for CHF despite risk factors of age and symptoms. The failure of
Dr. Giannone to perform a significant work up was below the standard of care for a
medical center in Texas and such failure contributed to cause the patient‘s untimely
death.
5. There is no documentation that Dr. Giannone was aware of elevated temp of 102.1
as charted on arrival by the nursing staff. Nursing staff notes temp was still slightly
elevated at 99.5 on discharge, and assuming Dr. Giannone knew of these temperatures
and still released Mrs. Andrews, it would be far below the standard of care for
emergency room physicians in Texas and was a contributing cause [of] the patient's
untimely death.
6. Levaquin was ordered by Dr. Gionnone [sic] and given to the patient by IV, but no
RX was given for antibiotics . . . for follow up after release and she was not told to see
a doctor the next day. The failure of Dr. Gionnone [sic] to give an antibiotic and refer
to a physician to be seen the next day was below the standard of medical care in
Texas and contributed to the patient‘s untimely death.
10
7. Rx for Robitussin AC was faxed to the pharmacy by Dr. Gionnone [sic], but Dr.
Gionnone [sic] did not order antibiotics to follow the levaquin despite elevated temps
and a diagnosis of bronchitis. This was certainly a significant factor in her subsequent
sepsis, was below the standard of care in Texas and contributed to cause her untimely
death.
8. Cardiomegally and early CHF were not appreciated by Dr. Gionnone [sic] on the
CXR. This failure to appreciate the cardiomegally was below the standard of care and
contributed to the patient‘s untimely death.
9. Although the patient was called on 7/13/2009 at 11:41 a.m. per the record by
Elizabeth Johnson and ―She said she was doing okay . . .‖ there is no indication that a
physician spoke with the patient and no documentation of status of Ms. Johnson. The
failure of Dr. Gionnone [sic] to make certain that a qualified physician follow up with
appropriate questions on the day after the premature release was below the standard of
medical care in Texas and contributed to cause the patient‘s untimely death.
We conclude Dr. Downing did not provide a fair summary of the accepted
standards of care applicable in this situation. First, Dr. Downing stated that Dr. Giannone
breached a standard of care by failing to perform ―a significant work up for cardiac
problems,‖ but did not specify ―what should have been done differently.‖ Palacios, 46
S.W.3d at 880. Although she generally mentioned that ―[n]o lab work such as Beta NP
was ordered,‖ she did not express whether a Beta NP was a test that should have been
performed or merely could have been performed. See Thomas, 230 S.W.3d at 858
(―[S]tatements concerning the standard of care and breach need only identify what care
was expected and not given with such specificity that inferences need not be indulged to
discern them.‖).
Second, Dr. Downing stated that Dr. Giannone breached a standard of care by
discharging Andrews despite her elevated temperature. Again, there is no mention
regarding what should have been done differently, i.e., whether Dr. Giannone should
have ordered that Andrews remain in the emergency room or be moved to another
department in the hospital for additional treatment. Dr. Downing‘s statement that Dr.
Giannone committed negligence by discharging Andrews may address the breach of a
standard of care, but does not adequately set forth the actual standard. See Strom v.
Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 224 (Tex. App.—Houston [1st Dist.] 2003,
11
pet. denied) (―To the extent that the reports state what an ordinarily prudent physician
would not have done, i.e., what [the defendant physician] did, the reports are addressing a
breach of the standard of care rather than the applicable standard of care itself.‖).
Third, Dr. Downing stated that Dr. Giannone breached a standard of care by
failing to prescribe antibiotics for Andrews despite her elevated temperature and
bronchitis. This statement is conclusory because Dr. Downing did not specify what type
and dosage of antibiotics should have been prescribed in light of Andrews‘s conditions or
for what duration the antibiotics should have been administered. See Norris v. Tenet
Houston Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, at *7 (Tex. App.—
Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (explaining expert failed to
adequately state the standard of care because, among other deficiencies, he did not
specify required dosage for patient in same condition as plaintiff).
Fourth, Dr. Downing stated that Dr. Giannone breached a standard of care by
failing to advise Andrews to consult a physician the following day and by failing ―to
make certain that a qualified physician follow up with appropriate questions on the
[following] day.‖ These statements are conclusory and do not adequately set forth the
standard of care because there is no explanation regarding the type of follow-up
appointment Dr. Giannone should have recommended or what questions Dr. Giannone
should have ensured the physician asked Andrews, e.g., whether Dr. Giannone should
have referred Andrews to a cardiac or pulmonary specialist or merely advised her to
consult a general practitioner.
Finally, Dr. Downing stated that Dr. Giannone breached a standard of care by
failing to appreciate cardiomegally on the CXR (chest x-ray). However, there is no
statement indicating that Dr. Giannone had a duty to order and review chest x-rays in this
situation. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (per curium)
(―[N]either of [plaintiff‘s] expert reports asserts that [defendant physician] was ever
provided with the x-ray results or had any independent duty to review them. Instead, the
court of appeals indulges multiple inferences that are simply unsupported by the scant
12
reports.‖). Furthermore, Dr. Downing did not even state whether these conditions were
actually detectable from the x-ray.
Accordingly, we hold that the trial court erred by determining that appellees
presented an expert report in which a fair summary of the applicable standards of care
was provided. Additionally, without information regarding the standards of care, we are
unable to determine whether Dr. Downing provided a fair summary of Dr. Giannone‘s
alleged breach of the applicable standards, and so was the trial court. See De Leon v.
Vela, 70 S.W.3d 194, 199 (Tex. App.—San Antonio 2001, pet. denied) (―[Expert
physician‘s] failure to set forth what the applicable standard of care was makes it
impossible for us to determine whether the standard of care De Leon was entitled to was
ever breached.‖).
Relative to causation, we conclude Dr. Downing did not adequately explain why
Dr. Giannone‘s alleged breaches of the standards of care caused damages. She opined
that Dr. Giannone‘s negligence ―contributed to the patient‘s untimely demise‖ and ―in
[her] medical opinion[,] were responsible for the demise of [the patient].‖ Dr. Downing
failed to describe or opine regarding the causal link between Dr. Giannone‘s negligence
and Andrews‘s death. Instead, Dr. Downing‘s opinion is based on bare assertions
regarding causation without explanation regarding the predictable results if Dr. Giannone
had followed the standards. Dr. Downing‘s numerous conclusory statements that certain
breaches of standards ―contributed to the cause of the patient‘s death‖ are not adequate to
fulfill the requirements prescribed in section 74.351(r)(6). An expert must explain the
basis for her conclusions relative to causation and sufficiently describe the facts that
establish a causal link to the patient‘s demise. Constancio v. Bray, 266 S.W.3d 149, 157–
59 (Tex. App.—Austin 2008, no pet.) (distinguishing between reports in which author
fails to link her conclusions regarding causation to breaches of standards of care and
reports that adequately link patient‘s injury to practitioner‘s negligence). Accordingly,
we hold the trial court abused its discretion by denying Dr. Giannone‘s motion based on
13
the contention that Dr. Downing‘s opinions regarding causation are conclusory. See
Jelinek, 328 S.W.3d at 539–40. Dr. Giannone‘s second and third issues are sustained.
III. CONCLUSION
After concluding that an expert report is inadequate, a court of appeals may
remand for the trial court to decide whether to grant an extension of time for a claimant to
cure the report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c); Leland v. Brandal,
257 S.W.3d 204, 207 (Tex. 2008). Accordingly, we reverse the trial court‘s order
denying Dr. Giannone‘s motion to dismiss and remand for the trial court to consider
whether to grant an extension of time for appellees to rectify the above described
deficiencies under section 74.351(c).
/s/ Charles W. Seymore
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
14