COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-325-CV

SHANNON POLONE, P.A.-C. AND APPELLANTS

FRANCIS R. LONERGAN, M.D.

V.

MONICA SHEARER APPELLEE

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

In these accelerated, interlocutory appeals, Appellants Shannon Polone,

P.A.-C. and Francis R. Lonergan, M.D. appeal the trial court’s orders denying

their motions to dismiss the health care liability claims of Appellee Monica

Shearer. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(9) (Vernon 2008).

In two issues, Polone argues that Shearer failed to comply with civil practice
2

and remedies code section 74.351 because the medical expert reports that she

filed are inadequate and fail to show that the authoring experts are qualified to

offer an expert opinion regarding the standard of care applicable to a

physician’s assistant. See id. § 74.351(b), (l) (Vernon Supp. 2008). Dr.

Lonergan also argues that Shearer failed to file an adequate expert report in

compliance with civil practice and remedies code section 74.351, but he

contends in two issues that the opinions of the authoring experts are

speculative and conclusory and that the experts failed to adequately address

Shearer’s specific claims. See id. We affirm in part and reverse and remand

in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

Shearer filed a medical malpractice lawsuit against Dr. Lonergan and

Polone in January 2008. She alleged that she experienced symptomatic breast

problems, including asymmetric breasts and breast pain, at the end of 2004.

In November 2005, Polone examined Shearer after Shearer complained of

breast pain and dimpling of the skin. A mammogram and sonogram were

performed, but the results did not show a definable mass. The radiologist

classified the findings as “BIRADS 2” and recommended a followup
1... According to Polone, the results of the diagnostic tests indicated that

the mass was benign.

3

mammogram in one year.1 Shearer saw Dr. Lonergan through 2007, during

which time she allegedly continued to complain of “breast problems.” Dr.

Adrienne Martin evaluated Shearer in late 2007, and tissue excised from

Shearer’s left breast was diagnosed as lobular carcinoma. Shearer then

underwent a bilateral mastectomy.

Shearer alleged in her original petition that Polone negligently failed “to

closely follow up the findings after the mammogram in 2005” and “to timely

recognize the possibility of malignancy in [Shearer].” Shearer alleged that Dr.

Lonergan was negligent in failing “to closely follow up the findings after the

mammogram in 2005,” “to perform a fine needle aspiration on the mass in

question,” “to refer [Shearer] to a surgeon for follow up,” and “to timely

recognize the possibility of malignancy in [Shearer].”

Shearer attached to her petition the medical expert report of Mark D.

Akin, M.D. She later filed a second expert report prepared by Gerald H. Sokol,

M.D. Both Polone and Dr. Lonergan filed objections to the adequacy of the

expert reports and moved to dismiss Shearer’s health care liability claims. The
2... See Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008)

(authorizing appeal from trial court order determining that expert report was

adequate and denying motion to dismiss).

4

trial court overruled the objections and denied the motions to dismiss. This

interlocutory appeal followed.2

III. STANDARD OF REVIEW

We review a trial court’s denial of a motion to dismiss for an abuse of

discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Maris v.

Hendricks, 262 S.W.3d 379, 383 (Tex. App.—Fort Worth 2008, pet. denied).

A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner or without reference to any guiding rules and principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert.

denied, 476 U.S. 1159 (1986). Merely because a trial court may decide a

matter within its discretion in a different manner than an appellate court would

in a similar circumstance does not demonstrate that an abuse of discretion has

occurred. Id. But a trial court has no discretion in determining what the law

is or in applying the law to the facts, and thus “a clear failure by the trial court

to analyze or apply the law correctly will constitute an abuse of discretion.”

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
5

IV. CHALLENGES TO EXPERT REPORTS

Civil practice and remedies code section 74.351 provides that, within 120

days of filing suit, a plaintiff must serve expert reports for each physician or

health care provider against whom a liability claim is asserted. Tex. Civ. Prac.

& Rem. Code Ann. § 74.351(a). An expert report is a written report by an

expert that provides a fair summary of the expert’s opinions regarding the

applicable standard of care, the manner in which the care rendered by the

physician or health care provider failed to meet the standard, and the causal

relationship between that failure and the injury, harm, or damages claimed. Id.

§ 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may

file a motion challenging the report’s adequacy. See id. § 74.351(a), (b), (l).

A trial court must grant a motion to dismiss based on the alleged inadequacy

of an expert report only if it finds, after a hearing, “that the report does not

represent an objective good faith effort to comply with the definition of an

expert report” in the statute. Id. § 74.351(l).

The information in the report does not have to meet the same

requirements as evidence offered in a summary judgment proceeding or at trial,

and the report need not marshal all the plaintiff’s proof, but it must include the

expert’s opinions on each of the elements identified in the statute—standard of

care, breach, and causation. See Am. Transitional Care Ctrs. v. Palacios, 46
6

S.W.3d 873, 878–79 (Tex. 2001); Thomas v. Alford, 230 S.W.3d 853, 856

(Tex. App.—Houston [14th Dist.] 2007, no pet.). In detailing these elements,

the report must provide enough information to fulfill two purposes if it is to

constitute a good-faith effort: (1) the report must inform the defendant of the

specific conduct the plaintiff has called into question and (2) the report must

provide a basis for the trial court to conclude that the claims have merit.

Palacios, 46 S.W.3d at 879; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855,

859 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A report does not fulfill

these two purposes if it merely states the expert’s conclusions or if it omits any

of the statutory requirements. Palacios, 46 S.W.3d at 879. A claimant is

allowed to utilize separate expert reports to satisfy any requirement of section

74.351. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(i).

In assessing the report’s sufficiency, the trial court may not draw any

inferences; it must rely exclusively on the information contained within the

report’s four corners. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002); Palacios, 46 S.W.3d at 878. However, section 74.351 does not

prevent experts, as opposed to courts, from making inferences based on

medical history. Benish v. Grottie, No. 02-08-00148-CV, 2009 WL 417264,

at *6 (Tex. App.—Fort Worth Feb. 19, 2009, no pet. h.); see also Tex. R. Evid.

703 (providing that an expert may draw inferences in a particular case); Tex.
7

R. Evid. 705 (providing that an expert may testify in terms of opinions and

inferences).

A. Standard of Care and Breach

In part of her first issue, Polone argues that Dr. Akin’s and Dr. Sokol’s

reports are inadequate because the reports fail to set forth the specific,

applicable standard of care for a physician’s assistant. She argues that Dr.

Akin’s report sets forth one “universal” standard of care for both physicians and

physician’s assistants but that it fails to state why this is appropriate. She

contends that Dr. Sokol’s report also treats the standard of care for a

physician’s assistant and a physician as one and the same.

An expert report may not assert that multiple defendants are all negligent

for failing to meet the standard of care without providing an explanation of how

each defendant specifically breached the standard and how that breach caused

or contributed to the cause of injury. Taylor v. Christus Spohn Health Sys.

Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); see

Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.—San Antonio 1999, pet.

denied) (stating that the report must specifically refer to the defendant and

discuss how that defendant breached the applicable standard of care). Just as

an expert report must provide an explanation of how each defendant specifically

breached the standard of care, the expert report must set forth the applicable
8

standard of care for each defendant. See Doades v. Syed, 94 S.W.3d 664,

671–72 (Tex. App.—San Antonio 2002, no pet.) (holding expert report

inadequate because it failed to set forth the standard of care for each defendant

individually and contained mere conclusions regarding breach and causation);

Rittmer v. Garza, 65 S.W.3d 718, 722–23 (Tex. App.—Houston [14th Dist.]

2001, no pet.) (reasoning that expert report was inadequate because it lacked

specificity as to the standards of care applicable to the surgeries performed on

plaintiff).

Dr. Akin’s report identified the “Specific Acts or Omissions of Medical

Care” committed by Polone as (1) failing to adequately evaluate and manage a

breast mass and (2) failing to recognize that mammography and breast

sonography are not conclusive tests for breast cancer. Under the first act or

omission, Dr. Akin stated in relevant part as follows:

The standard of care for the evaluation of a breast mass is to

obtain a thorough history, perform an adequate breast exam, and

obtain appropriate diagnostic imaging procedures. When this

evaluation yields findings that could be consistent with a breast

cancer, either close follow-up or surgical evaluation is mandatory.

Under the second act or omission, Dr. Akin stated as follows:

The standard of care for interpretation of mammography and breast

sonography is to recognize that these tests are not conclusive, and

that patient management cannot be based exclusively upon these

radiologic findings. PA Pa[l]one relied on the negative mammogram

and sonogram findings as evidence that Monica’s breast mass was
9

not cancer, even in spite of progressive growth of the breast mass

and associated skin changes. In light of the well-published

evidence that not all breast cancers can be identified by these

radiologic procedures, this falls below the standard of care for the

interpretation of mammography and breast sonography.

Regarding Dr. Lonergan, Dr. Akin’s report identified the “Specific Acts or

Omissions of Medical Care” committed by Dr. Lonergan as the same two

“Specific Acts or Omissions of Medical Care” committed by Polone. And as he

did with Polone, under the first act or omission, Dr. Akin stated in relevant part

as follows:

The standard of care for the evaluation of a breast mass is to

obtain a thorough history, perform an adequate breast exam, and

obtain appropriate diagnostic imaging procedures. When this

evaluation yields findings that could be consistent with a breast

cancer, either close follow-up or surgical evaluation is mandatory.

And under the second act or omission, Dr. Akin stated as follows:

The standard of care for interpretation of mammography and breast

sonography is to recognize that these tests are not conclusive, and

that patient management cannot be based exclusively upon these

radiologic findings. Dr. Lonergan relied on the negative

mammogram and sonogram findings as evidence that Monica’s

breast mass was not cancer, even in spite of progressive growth

of the breast mass and associated skin changes. In light of the

well-published evidence that not all breast cancers can be identified

by these radiologic procedures, this falls below the standard of care

for the interpretation of mammography and breast sonography.

Although Dr. Akin’s report sets forth what he opines to be the applicable

standards of care for both Polone and Dr. Lonergan regarding evaluation of a
10

breast mass and interpretation of mammography and breast sonography, the

standards of care that he identified are identical. Because the report does not

delineate between the standard of care applicable to a physician’s assistant and

the standard of care applicable to a physician, the report sets forth but one

standard of care applicable to both Polone and Dr. Lonergan. And because only

one standard of care is set forth, the report does not—as Polone points

out—explain how or why it is the responsibility of Polone and not Dr. Lonergan,

the treating physician, to order diagnostic tests or make a referral; at what point

the duty to order additional testing becomes the duty of the physician; or why

or whether it is not always the duty of the physician and not the physician’s

assistant to perform such tasks. In other words, the report does not specifically

identify the particular standard of care applicable to Polone. Although the

standards of care might be the same for both Polone and Dr. Lonergan, the

report does not specifically state as much. Because the report does not

articulate that the standards of care are the same, the report required the trial

court to impermissibly infer that Polone and Dr. Lonergan shared identical

standards of care applicable to evaluation of a breast mass and interpretation

of mammography and breast sonography, which may or may not be correct,

considering the information contained only within the four corners of the report.
11

See Wright, 79 S.W.3d at 52 (stating that trial court may not draw inferences

regarding information contained in expert report).

Dr. Sokol’s report sets forth in a single paragraph what he opines to be

the standard of care for the diagnosis and treatment of women with suspected

breast cancer, stating as follows:

STANDARD OF CARE

As a result of my background, training, and clinical experience in

the treatment of women with suspected breast cancer, I am

familiar with the standards of care for the diagnosis and treatment

of such patients. The standard of care for a patient with a palpable

mass and skin dimpling is to perform a fine needle aspiration of the

lump and to refer to a breast surgeon.

Dr. Sokol’s report sets forth a single standard of care for both Polone and Dr.

Lonergan instead of identifying the specific standard of care applicable to each.

See Palacios, 46 S.W.3d at 880 (“Whether a defendant breached his or her

duty to a patient cannot be determined absent specific information about what

the defendant should have done differently.”); see also Doades, 94 S.W.3d at

671–72. Dr. Sokol’s report is deficient even when considered with Dr. Akin’s

report.

We hold that the trial court abused its discretion by denying Polone’s

motion to dismiss on the ground that Dr. Akin’s and Dr. Sokol’s expert reports

were deficient for failing to adequately set forth the applicable standards of
12

care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b), (l), (r)(6). We

sustain this part of Polone’s first issue.

In another part of her first issue, Polone contends that Dr. Akin’s report

is inadequate regarding the element of breach. She specifically argues that Dr.

Akin’s report does not explain why it is a breach of the standard of care for a

physician’s assistant to disregard the diagnostic tests performed (because,

according to Polone, the results indicated that the mass was benign). Under

the failure to adequately evaluate and manage a breast mass “Specific Act[] or

Omission[] of Medical Care,” Dr. Akin elaborated on the mandatory “close

follow-up or surgical evaluation” standard of care and stated, “Even though a

diagnostic mammogram and sonogram were performed and reported as BIRADS

2, appropriate management of a palpable breast mass with skin dimpling would

have included either fine needle aspiration of the mass or referral to a breast

surgeon.” [Emphasis added.] Thus, Dr. Akin explains exactly why it is a breach

of the standard of care for a physician’s assistant to disregard diagnostic tests

resulting in BIRADS 2: because “appropriate management” of a palpable breast

mass with skin dimpling calls for fine needle aspiration or referral to a breast

surgeon. We overrule this part of Polone’s first issue.
13

B. Causation

In another part of her first issue, Polone argues that Dr. Akin’s and Dr.

Sokol’s reports are deficient with regard to causation. She contends that the

reports fail to set forth how her alleged breaches of the standard of care

resulted in a delay of the diagnosis and treatment of Shearer’s breast cancer,

how the alleged delay caused more damages and injury than would have

occurred absent the alleged breaches of the standard of care, and how but for

the alleged breaches of the standard of care, Shearer would not have been

injured. Dr. Lonergan argues in his first issue that the reports are speculative

and conclusory.

In fulfilling the dual purposes of the expert report, the expert must explain

the basis of his statements and link his conclusions to the facts. Wright, 79

S.W.3d at 52. The report must not be conclusory in its explanation of

causation. Id. at 53; Palacios, 46 S.W.3d at 879.

Dr. Akin’s report states in part as follows:

It is my professional opinion that Monica Shearer’s breast cancer

was present for at least 22 months prior to biopsy confirmation,

and the delay in diagnosis was a direct consequence of the

following individuals failing to meet the standards of medical care:

. . . .

It is my professional medical opinion that the diagnosis of Monica’s

breast cancer was delayed for 22 months. During this time frame
14

there is documented evidence of progressive growth and

development of her breast cancer. Within reasonable medical

probability, Monica’s breast cancer would have been timely

diagnosed if PA Polone and Dr. Lonergan had met the standards of

care for the evaluation and management of a breast mass. This

failure to meet the standard of care has increased Monica’s risk of

metastatic breast cancer and subsequent morbidity and mortality,

and constitutes medical negligence. [Emphasis added.] 

Dr. Sokol’s report states in relevant part:

It is my opinion that, more probably than not, the delay in diagnosis

of the breast cancer resulted in injury or damage to this patient. It

is my opinion, to a degree of medical probability, that Ms. Shearer’s

breast cancer could have been treated, if timely diagnosed, without

the necessity of mastectomies and as likely her prognosis was

worsen[ed] by delay of diagnosis as well. 

The record demonstrates that Shearer is suing Polone and Dr. Lonergan

for damages resulting from their alleged negligence in failing to timely diagnose

Shearer’s breast cancer. Dr. Akin addresses causation in his report when he

opines that there has been an increase in Shearer’s (1) risk of metastatic breast

cancer and (2) subsequent morbidity and mortality as a result of Polone and Dr.

Lonergan’s alleged failure to meet the applicable standards of care. Stated

otherwise, but for Polone and Dr. Lonergan’s failure to meet the accepted

standards of care regarding evaluation and management of a breast mass and

interpretation of mammography and breast sonography, Shearer would not have

experienced an increase in the risk of metastatic breast cancer and morbidity

and mortality. According to the plain language of the report, Dr. Akin does not
15

opine that Shearer would not have a risk of metastatic cancer, morbidity, and

mortality in the absence of Polone’s and Dr. Lonergan’s breaches of the

standard of care; he only opines that their failure to meet the standards of care

increased those risks. This is not a conclusory opinion. Cf. Wright, 79 S.W.3d

at 53 (reasoning that expert report was conclusory when it stated that the

plaintiff might have had “the possibility of a better outcome” without explaining

how defendant’s conduct caused injury to plaintiff).

Dr. Sokol similarly contends that if timely diagnosed, Shearer’s breast

cancer could have been treated without the necessity of mastectomies. In

other words, but for Polone and Dr. Lonergan’s failure to meet the accepted

standards of care for a patient with a palpable mass and skin dimpling, Shearer

would not have had to undergo treatment for her condition through

implementation of mastectomies.

Dr. Akin’s report and Dr. Sokol’s report thus show a causal connection

between the complained-of negligent acts or omissions and the resulting injury:

but for Polone and Dr. Lonergan’s negligent acts or omissions involving the

failure to timely diagnose Shearer’s breast cancer, Shearer would not have

incurred the alleged injuries of an increased risk of metastatic breast cancer,

morbidity, and mortality and treatment of her cancer by way of mastectomies.

The reports accordingly inform Polone and Dr. Lonergan of the specific conduct
3... Dr. Lonergan additionally makes some type of comparative

responsibility argument. It is unpersuasive. See Tex. R. App. P. 38.1(h).

16

that Shearer has called into question and provide a basis for the trial court to

conclude that the claims have merit. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(6); Palacios, 46 S.W.3d at 879. This is all that is required; the

information in the report does not have to meet the same requirements as

evidence offered in a summary judgment proceeding or at trial. See Palacios,

46 S.W.3d at 878–79. Consequently, in the context of examining causation,

the reports are sufficient to represent an objective good-faith effort to comply

with the definition of an expert report in civil practice and remedies code

section 74.351(r)(6). See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l),

(r)(6).3 We hold that the trial court did not abuse its discretion by denying

Polone’s and Dr. Lonergan’s motions to dismiss on this ground. We overrule

this part of Polone’s first issue and Dr. Lonergan’s first issue.

C. Qualifications

In her second issue, Polone argues that Dr. Akin’s and Dr. Sokol’s reports

“fail to show that they are qualified to testify regarding the standard of care

applicable to a physician’s assistant.”

An expert providing opinion testimony regarding whether a health care

provider departed from the accepted standards of health care must satisfy the
17

requirements set forth in section 74.402. Id. § 74.351(r)(5)(B). Section

74.402 provides in part as follows:

(b) In a suit involving a health care liability claim against a health

care provider, a person may qualify as an expert witness on the

issue of whether the health care provider departed from accepted

standards of care only if the person:

(1) is practicing health care in a field of practice that involves

the same type of care or treatment as that delivered by the

defendant health care provider, if the defendant health care

provider is an individual, at the time the testimony is given or was

practicing that type of health care at the time the claim arose;

(2) has knowledge of accepted standards of care for health

care providers 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 health

care.

Id. § 74.402(b) (Vernon 2005). 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

certified by a licensing agency of one or more states of the United States or a

national professional certifying agency, or has other substantial training or

experience, in the area of health care relevant to the claim; and (2) is actively

practicing health care in rendering health care services relevant to the claim.

Id. § 74.402(c)(1)–(2). Our analysis of the qualifications of an expert under
18

section 74.351 is limited to the four corners of the expert’s report and

curriculum vitae. Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755,

758 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Dr. Akin’s report and curriculum vitae demonstrate that he has been a

licensed physician in the State of Texas since 1979, that he is board certified

by the American College of Obstetricians and Gynecologists, and that he has

been in private practice since 1983. Dr. Akin was trained in breast evaluation

during a four-year residency at Parkland Hospital in Dallas, Texas, and he has

twenty-four years of “office practice experience” in Austin, Texas, where he

has “performed breast examinations on a regular daily basis.” He states the

following:

I am qualified to render an opinion on the physician and nurse

practitioner care provided in this case because I am an expert in the

diagnosis of breast disease. I have examined thousands of women

with fibrocystic breast disease and hundred[s] of women with

breast cancer. This includes the routine practice of obtaining a

history of the patient’s breast complaints and performing a

thorough physical examination, and when necessary ordering

mammography, sonography, and/or fine needle aspiration.

Moreover, as a primary care physician, I am responsible for

assessing all of the above information and determining which

patients should be referred for further surgical evaluation and

treatment. My 24 years of clinical experience make me intimately

familiar with the accepted standards of care as applies to all

aspects of this case. [Emphasis added.]
19

Dr. Sokol’s report and curriculum vitae demonstrate that he is licensed in

Florida and Washington, D.C., and that he is board certified by the American

Boards of Internal Medicine, Radiology, Internal Medicine Sub-specialty

Oncology, Clinical Pharmacology, and Quality Assurance. He states the

following:

I am qualified to attest to standards of medical treatment for the

diagnosis and treatment of a patient presenting as Ms. Shearer did.

I am qualified to do so by virtue of the fact that I am a licensed

physician practicing in the State of Florida, specializing in Oncologic

Medicine. In my clinical practice, I have examined and treated

hundreds of patients with the presenting signs and symptoms

similar to those that Ms. Shearer presented with at the office of Dr.

Lonergan in the approximate two year period prior to her breast

surgery. I have also supervised the oncological treatment of

women with carcinoma such as that diagnosed in this patient, and

as a result of my training and experience in such treatment, I am

familiar with the effects of early diagnosis and treatment of

patients with these problems, and the effects of late diagnosis and

treatment of such patients. I have treated many patients with

lesions such as Ms. Shearer which were diagnosed in a timely

manner, and I have been involved in the care of many such patients

who did not receive the benefit of timely diagnosis and treatment.

[Emphasis added.]

Polone does not specifically challenge any section 74.402(b) requirement.

Cf. Burrell, 230 S.W.3d at 759–62 (addressing each of appellant’s specific

section 74.402 challenges). She contends that Dr. Akin’s report and Dr.

Sokol’s report fail to state whether they are qualified to testify regarding the

standard of care for a physician’s assistant. This determination, however, is
20

made by considering the information contained within Dr. Akin’s and Dr.

Sokol’s reports and curricula vitae in light of the qualification requisites in civil

practice and remedies code section 74.402(b) and (c). See id. at 758. Polone

also argues that neither Dr. Akin nor Dr. Sokol is qualified because their reports

do not state whether the standards of care described in the reports apply to a

physician, a physician’s assistant, or both. This is not an issue relevant to

whether Dr. Akin and Dr. Sokol are qualified to offer an expert opinion in this

case; it is an issue appropriately addressed when considering the adequacy of

the reports regarding standards of care, which we have already addressed

above.

We hold that the trial court did not abuse its discretion by denying

Polone’s motion to dismiss the expert reports of Dr. Akin and Dr. Sokol on the

grounds that they are not qualified to offer an expert opinion in this case. We

overrule Polone’s second issue.

D. Specificity

In his second issue, Dr. Lonergan argues that neither Dr. Akin’s report nor

Dr. Sokol’s report represents a good-faith effort to comply with the definition

of an expert report because the claims alleged in Shearer’s petition (failing to

closely follow up the findings after the mammogram in 2005, failing to perform

a fine needle aspiration on the mass in question, failing to refer Shearer to a
21

surgeon for followup, and failing to timely recognize the possibility of

malignancy in Shearer) do not match the claims addressed in the reports. We

have thoroughly reviewed Shearer’s original petition and the reports of Dr. Akin

and Dr. Sokol. In the context of whether the theories of negligence match the

claims addressed in the reports, with the exception of the standard of care

issue addressed in part of Polone’s first issue, the reports of Dr. Akin and Dr.

Sokol considered together represent an objective good-faith effort to comply

with the definition of an expert report in section 74.351(r)(6). See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351(i), (l). We overrule Dr. Lonergan’s second

issue.

V. REMAND OR DISMISS?

Polone contends that Shearer is not entitled to a remand of the case if

this court determines that the expert reports are deficient. We disagree. Civil

practice and remedies code section 74.351(c) allows the trial court to grant one

thirty-day extension to the claimant in order to give the claimant an opportunity

to cure a report found to be deficient. Id. § 74.351(c). Here, it is this court,

not the trial court, that has sustained part of Polone’s motion to dismiss

challenging the adequacy of Dr. Akin’s and Dr. Sokol’s reports. Section

74.351(c) is not rendered meaningless simply because this court, instead of the

trial court, determines that an expert report is deficient. See Leland v. Brandal,
22

257 S.W.3d 204, 205, 207–08 (Tex. 2008) (“In this health care liability claim,

we must decide whether a plaintiff may be afforded a thirty-day extension to

cure an expert report after a trial court’s ruling that the report is adequate is

reversed on appeal. We hold that when elements of a timely filed expert report

are found deficient, either by the trial court or on appeal, one thirty-day

extension to cure the report may be granted.”) (citation omitted); see also

Miranda v. Martinez, No. 13-06-00386-CV, 2007 WL 687001, at *3–4 (Tex.

App.—Corpus Christi Mar. 8, 2007, pet. denied) (mem. op.). The record does

not demonstrate that the trial court has already granted Shearer a section

74.351(c) extension. Accordingly, remand is appropriate for the trial court to

make its civil practice and remedies code section 74.351(b)—which is subject

to section 74.351(c)—determination. See Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(b), (c).

VI. CONCLUSION

We affirm the trial court’s order denying Dr. Lonergan’s motion to

dismiss. Having sustained part of Polone’s first issue, we reverse the trial

court’s order denying Polone’s motion to dismiss and remand the case to the

trial court to determine whether to dismiss Shearer’s claim against Polone or to
23

grant Shearer a section 74.351(c) thirty-day extension to cure the deficiency.

See id.

WILLIAM BRIGHAM

JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior

Justice, Retired, Sitting by Assignment).

DELIVERED: April 2, 2009