Jorge De La Garza, M.D. v. Gary E. Schruz ( 2011 )

NUMBER 13-10-00468-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JORGE DE LA GARZA, M.D., Appellant,
v.
GARY E. SCHRUZ, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
DISSENTING MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Dissenting Memorandum Opinion by Justice Vela
This case was brought against Dr. Jorge De La Garza by Gary E. Schruz alleging
malpractice in connection with the development and subsequent treatment for a
decubitus ulcer following heart surgery. The letter from Dr. Brooks that Schruz
submitted as an expert report initially indicated that Dr. De La Garza failed to address the
issue of the “stasis ulcer in a timely manner, such that further breakdown resulted in a
surgical debridement and additional care to the ulcer site.” In an addendum, dated the
same day, Dr. Brooks reversed his opinion and determined that “it would appear that the
physician component of the care was in all probability not unreasonable.” This change of
opinion was based on additional reports that Dr. Brooks reviewed. He concluded that
“[f]rom the physician perspective, it would thus appear at this point in time that the
sequence of events and apparent treatment does not appear to be unreasonable or
outside of the standard of care of the community in which the patient was treated.” Thus,
at the end of the relevant statutory period for serving expert reports, Dr. De La Garza had
been given a document that not only failed to implicate him personally, but actually
absolved him of negligence.
The majority holds that because the supreme court has not recognized that a
timely served report may be, in effect, “no report,” it had no choice but to conclude that
this case involves a deficient report rather than an absent one. I would hold, however,
that a report that does not, in any way, negatively implicate the conduct of a health care
provider, and goes a step further to absolve the health care provider of negligence, is not
deficient; it is “no report.” Under the circumstances presented, I do not believe the trial
court had any choice but to enter an order of dismissal.
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Expert report is defined by statute 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 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);
Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex.2010). Although the document delineated as
an expert report here affirmatively stated that the healthcare provider did not breach the
standard of care, the majority opines that it is a deficient report because it was timely
served and because the report does contain some of the elements prescribed by section
74.351. Arguably, the report sets forth the standard of care applicable to a health care
provider such as Dr. De La Garza. But, the report goes further to opine that the doctor
did not do anything improper.
It is well established that if a plaintiff serves no report within 120 days of filing suit,
the trial court has no discretion but to dismiss the plaintiff’s claim upon motion filed by the
health care provider, and has no discretion to grant a motion for extension of time. See,
e.g., Badiga v. Lopez, 274 S.W.3d 681, 683-84 (Tex. 2009); Rivenes v. Holden, 257
S.W.3d 332, 336-39 (Tex. App.–Houston [14th Dist.] 2008, pet. denied); Herrera v. Seton
Nw. Hosp., 212 S.W.3d 452, 460 (Tex. App.–Austin 2006, no pet.); Valley Baptist Med.
Ctr. v. Azua, 198 S.W.3d 810, 815-16 (Tex. App.–Corpus Christi 2006, no pet.). Section
74.351 specifically states that “if an expert report has not been served within the period
specified by subsection (a) because elements are found deficient, the court may grant
one 30-day extension to the claimant in order to cure the deficiency.” TEX. CIV. PRAC. &
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REM. CODE ANN. § 74.351(c) (West 2011).
A plaintiff may fail to serve an expert report within the time specified by the statute
by failing to provide a report within the deadline that satisfies the statutory requirements
for expert reports. See Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007). Some
courts of appeals have treated documents, served within the statutory dealdine, so
deficient and lacking in content with respect to the required elements that they constitute
no report. See Bogar v. Esparza, 257 S.W.3d 354, 364-69 (Tex. App.–Austin 2008, no
pet.) (finding a report so deficient that it constituted no report, for which dismissal was
required, and an extension was not available); Rivenes, 257 S.W.3d at 336-39 (holding
that the report offered no opinion as to the conduct of the defendant physician); Apodaca
v. Russo, 228 S.W.3d 252, 255-58 (Tex. App.–Austin 2007, no pet.) (discussing that if a
report fails to address the defendant physician, it is no report as to that physician); Garcia
v. Marichalar, 198 S.W.3d 250, 252-53 (Tex. App.–San Antonio 2006, no pet.) (same).
Here, Dr. Brooks report did not implicate the conduct of Dr. De La Garza, except to
opine that he did nothing wrong. Rather, it absolved him of negligence with respect to
his treatment of Mr. Schruz. While trial courts should liberally allow extensions when a
timely report implicates a health care provider’s conduct, to allow an extension when the
report actually absolves the defendant of any wrongdoing is not in accordance with the
purposes of the statute, one of which is to weed out frivolous claims. Wickware v.
Sullivan, 70 S.W.3d 214, 219 (Tex. App.–San Antonio 2001, no pet.). Certainly, if a
report that fails to implicate the conduct of a physician is no report as to that physician,
then a report that absolves a physician of negligent conduct is also “no report.” I would
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hold that the trial court abused its discretion in not dismissing the case against Dr. De La
Garza.
ROSE VELA
Justice
Delivered and filed the
2nd day of June, 2011.
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