Opinion filed April 22, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00204-CV

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GARY W. ELAM, M.D. AND GARY W. ELAM, M.D., P.A., Appellants

V.

ERIK GALINDO, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-126,521

M E M O R A N D U M O P I N I O N

This is an interlocutory appeal from an order denying a motion to dismiss a health care 

liability claim pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon Supp. 2009). 

We affirm. 

Gary W. Elam, M.D. and Gary W. Elam, M.D., P.A. (Dr. Elam) assert in two issues that 

the plaintiff’s expert report is insufficient to satisfy the requirements of Section 74.351 with 

respect to causation. In the first issue, Dr. Elam contends that the expert report was inadequate 

with respect to the causal relationship between the alleged negligence and Erik Galindo’s alleged 
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injury of morbidity of treatment. In the second issue, Dr. Elam attacks the report’s adequacy 

with respect to the causal relationship between the alleged negligence and Galindo’s alleged 

injury of risk of death. 

We review a trial court’s determination regarding dismissal of a claim pursuant to 

Section 74.351 under an abuse-of-discretion standard. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 

48, 52 (Tex. 2002). A trial court abuses its discretion by acting in an arbitrary or unreasonable 

manner without reference to any guiding rules or principles. Id. The issue before a trial court 

considering a motion to dismiss brought pursuant to Section 74.351 is whether the report 

represents a good faith effort to comply with the statute. Section 74.351(l); Am. Transitional 

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). To constitute a good faith 

effort, the report need not marshal all of the plaintiff’s proof, but it must (1) inform the defendant 

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. Palacios, 46 S.W.3d at 878-79. The expert report 

must provide “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.” Section 74.351(r)(6). The expert must explain the basis 

of his statements to link his conclusions to the facts. Bowie, 79 S.W.3d at 52.

Galindo alleges that Dr. Elam performed surgery on Galindo to remove a mass in his jaw

area in 2002 but that Dr. Elam negligently failed to inform Galindo of the pathology results: 

lymphocyte predominant Hodgkin disease (cancer). Galindo asserts that he did not learn that he 

had cancer until 2008 after another mass developed in the same area. He also asserts that 

Dr. Elam fabricated an entry in Galindo’s medical records to show that the pathology results 

were discussed with Galindo and his family in 2002 and that Galindo was referred to a cancer 

center at that time.

In an attempt to comply with Section 74.351, Galindo obtained an expert report from 

Dr. Tyler Curiel. In his report, Dr. Curiel states that Dr. Elam breached the standard of care by 

failing to notify and discuss the pathology findings with Galindo. With respect to causation, 

Dr. Curiel’s report provides:

2. The treatment for Hodgkin disease in 2002 was inadequate. The patient 

underwent simple excision of the lymphomatous mass in 2002. Treatment for 
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stage IA Hodgkin disease should also have included radiation therapy at a 

minimum, which was not offered or performed. 

3. The treatment and diagnosis delay between November 2002 and August 

2008 significantly increased morbidity of treatment. In November 2002, the 

Hodgkin disease was clinically stage IA . . . . In August 2008 the stage was IIIB. 

Stage IA Hodgkin disease in this setting can be managed with local radiation 

therapy alone. Stage IIIB disease requires high-dose chemotherapy as proposed 

and undertaken. Treatment for stage IA Hodgkin disease in 2002 could have been 

accomplished without the attendant risk of high-dose chemotherapy, which is 

required in stage IIIB. Risks of this chemotherapy include . . . .

4. The treatment and diagnosis delay between November 2002 and August 

2008 significantly increased risk of death. Stage IA Hodgkin disease is a highly 

curable disease with 8-year survival around 99%. Stage IIIB Hodgkin disease is 

still treatable [but has a] 5-year survival around 85%. Treatment failure and 

relapse rates are higher in stage IIIB compared to stage IA Hodgkin disease. 

Thus, to a reasonable degree of medical probability, survival was compromised 

by the treatment delay. Further, there were no atypical features of the Hodgkin 

disease in 2002. Current atypical features suggest (but do not yet diagnose) 

transformation. Transformation in Hodgkin disease is a grave complication, often 

resulting in incurable disease.

Dr. Elam argues that the report fails to establish the needed causal link between the 

alleged negligence and any compensable injury suffered by Galindo. Dr. Elam asserts that, to be 

sufficient, the report had to establish that Dr. Elam’s negligence caused the 2008 tumor, that 

Galindo has or probably will develop morbidity related to the chemotherapy treatment of the 

2008 tumor, and that Galindo will likely not survive the recurrence of cancer. We disagree. 

Although Dr. Elam asserts that “the 2008 tumor is the root cause behind this alleged injury,” 

Dr. Curiel suggests that Hodgkin disease, which was diagnosed but not treated in 2002, is the 

root of Galindo’s injuries. 

Dr. Curiel’s report indicates that, during the delay, the disease advanced from stage IA, 

which is “highly curable,” to stage IIIB with atypical features suggesting transformation, which 

is “often . . . incurable.” The report also indicates that the delay in treating Galindo’s Hodgkin 

disease caused an increase in the morbidity of treatment from radiation alone to high-dose 

chemotherapy. The trial court could have reasonably determined that Dr. Curiel’s report 

represented a good faith effort as to the causal relationship between Dr. Elam’s failure to meet 

the standard of care and Galindo’s damages. For a review of cases in which expert reports were 

found to adequately link causation of injuries to delays in health care services, see Polone v. 
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Shearer, 287 S.W.3d 229, 236-37 (Tex. App.—Fort Worth 2009, no pet.); Mosely v. Mundine, 

249 S.W.3d 775, 780-81 (Tex. App.—Dallas 2008, no pet.); Harris County Hospital District v. 

Garrett, 232 S.W.3d 170, 181 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Hillcrest Baptist 

Medical Center v. Wade, 172 S.W.3d 55 (Tex. App.—Waco 2005, pet. dism’d); and In re 

Barker, 110 S.W.3d 486 (Tex. App.—Amarillo 2003, orig. proceeding).

We cannot hold that the trial court abused its discretion by denying Dr. Elam’s motion to 

dismiss. Dr. Elam’s issues are overruled.

The order of the trial court is affirmed. 

JIM R. WRIGHT

CHIEF JUSTICE

April 22, 2010

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.