Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00613-CV

Gary P. LAWTON, M.D., FACS,

Appellant

v.

Rachel 

Rachel JOAQUIN,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2012-CI-16544

Honorable David A. Canales, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Rebeca C. Martinez, Justice

Delivered and Filed: February 26, 2014

REVERSED AND REMANDED

Gary P. Lawton, M.D., appeals an order denying his motion to dismiss a health care liability 

claim against him. We conclude the trial court abused its discretion when it denied Lawton’s 

motion to dismiss, and therefore, reverse and remand. 

BACKGROUND

On October 12, 2010, Lawton performed surgery—an abdominoplasty (“tummy tuck”) and 

panniculectomy—on Rachel Joaquin. Joaquin subsequently filed a healthcare liability claim 
04-13-00613-CV

against Lawton, alleging she suffered from “fat necrosis” following the surgery.1 Joaquin served 

Lawton with an expert report prepared by Edward P. Melmed, M.D., a plastic surgeon, as required 

by section 74.351 of the Texas Civil Practice and Remedies Code. Lawton objected to the 

adequacy of the report. The trial court sustained these objections and gave Joaquin a thirty-day 

extension to cure the deficiency. The expert prepared a supplemental report, which was timely 

served on Lawton. Thereafter, Lawton filed objections to the supplemental report and moved to 

dismiss Joaquin’s healthcare liability claim with prejudice. The trial court overruled Lawton’s 

objections and denied the motion to dismiss. Lawton appealed. On appeal, Lawton seeks a reversal 

of the trial court’s order denying the motion to dismiss, and a remand to the trial court for a

determination of statutory attorney’s fees.

STANDARD OF REVIEW

We review the trial court’s order denying a motion to dismiss a healthcare liability claim 

for an abuse of discretion. Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. 

Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court 

abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to 

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 

(Tex. 1985). The trial court’s clear failure to analyze or apply the law correctly will constitute an 

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

DISCUSSION

When presented with a motion to dismiss a healthcare liability claim, the trial court must 

determine whether the expert report represents a good faith effort to comply with the statutory 

1

Necrosis is defined as “[t]he death of cells, tissues, or organs.” TABERS CYCLOPEDIC MEDICAL DICTIONARY 1549 

(21st ed. 2009).

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definition of an expert report. See Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878; see also

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (West Supp. 2013). The statute defines an expert 

report 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 that 

failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(r)(6) (West Supp. 2013). 

In evaluating an expert report, the trial court looks only to the information within the four 

corners of the report and is prohibited from making any inferences. Wright, 79 S.W.3d at 52-53; 

Palacios, 46 S.W.3d at 878. Although the expert report need not marshal all the plaintiff’s proof, 

it must include the expert’s opinion on each of the three elements identified in the statute: standard 

of care, breach, and causal relationship. Wright, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The 

expert cannot merely state his conclusions about these elements in his report. Wright, 79 S.W.3d 

at 52; Palacios, 46 S.W.3d at 879. The expert must explain the basis of his statements to link his 

conclusions to the facts. Wright, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890 

(Tex.1999)). To constitute a good-faith effort to comply with the statutory definition, the expert’s 

report must provide enough information to fulfill two purposes: (1) it must inform the defendant 

of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the 

trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. “A report that merely 

states the expert’s conclusions about the standard of care, breach, and causation cannot fulfill these 

two purposes.” Id. 

On appeal, Lawton argues the trial court abused its discretion when it denied the motion to 

dismiss. Lawton focuses on two of the three required statutory elements: breach and causal 

relationship. According to Lawton, the expert’s supplemental report is deficient because it fails to 

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set out (1) exactly what he did or failed to do that amounted to a failure to meet the applicable 

standard of care, and (2) the causal relationship between that failure and the injury, harm, or 

damages claimed by Joaquin. After reviewing both the initial expert report and the supplemental 

expert report, we agree with Lawton. 

As previously mentioned, the trial court found the initial expert report to be deficient and, 

consistent with Chapter 74, provided Joaquin an opportunity to cure the deficiency. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(c) (West Supp. 2013). After the supplemental expert report 

was filed, Lawton filed additional objections and moved to dismiss with prejudice. In reviewing 

the trial court’s decision to deny the motion to dismiss, we consider both the initial and the 

supplemental reports prepared by Dr. Melmed. 

In his initial report, Dr. Melmed stated his opinions were based on the operative reports 

and progress notes. He stated he was very disturbed that Joaquin had to have hyperbaric oxygen 

treatment the day after surgery. According to Dr. Melmed, this treatment indicated there was a 

severe compromise in circulation immediately following Joaquin’s surgery. Dr. Melmed identified 

two external factors that “can figure into” circulatory compromise, smoking and a metabolic 

disease such as diabetes. Dr. Melmed then noted that Joaquin’s medical history showed that neither 

external factor applied to her. At the report’s conclusion, Dr. Melmed stated: “I do not know what 

caused the failure of the blood supply from reading the operative reports . . . . I can only surmise 

that something must have occurred that was not recognized at the time of surgery, nor reflected in 

the operative or immediate progress notes.”

In his supplemental report, Dr. Melmed stated his opinions were based on post-operative 

photographs and surgical records. According to Dr. Melmed, the post-operative photographs 

showed “a devastating compromise in the blood supply to the abdominal wall, ending upon with 

full thickness skin loss of a huge amount of skin,” but “the surgical records, as dictated, make no 

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04-13-00613-CV

mention of any problems encountered during the procedure, or how the compromised circulation 

occurred.” Dr. Melmed further stated: “The standard of care requires the surgeon to preserve a 

sufficient blood supply to the abdominal wall” and “a deviation from the [s]tandard of [c]are 

MUST have occurred during the performance of the abdominoplasty to have compromised the 

blood supply to the extent that such a large tissue loss occurred.” In conclusion, Dr. Melmed stated 

“the major skin and tissue loss was caused by a major compromise of [] vascularity that occurred 

during the abdominoplasty.”

Dr. Melmed’s reports identify one standard of care: the requirement that a surgeon preserve 

a sufficient blood supply to the abdominal wall. However, neither report explains how a surgeon 

goes about preserving a sufficient blood supply to the patient’s abdominal wall. And, neither report 

explains how Lawton in particular failed to preserve a sufficient blood supply to Joaquin’s 

abdominal wall. 

In defending the trial court’s ruling, Joaquin argues that Dr. Melmed adequately described 

Lawton’s breach of the standard of care in his reports. She points out that Dr. Melmed’s reports 

ruled out, based on Joaquin’s medical history, external factors that could have caused circulatory 

failure, namely smoking and a metabolic disease such as diabetes. He also indicated the 

photographic record showed “a devastating compromise in the blood supply to the abdominal 

wall.” Based on this information, Dr. Melmed concluded “[t]he cause of the circulatory failure 

must therefore have come from something that happened during surgery.” Citing these statements, 

Joaquin asserts the reports adequately explained Lawton’s breach of the standard of care. We 

disagree. Dr. Melmed’s reports fail to link the circulatory failure to any specific action on Lawton’s 

part. Absent such specific information about Lawton’s conduct, Dr. Melmed’s opinion that “a 

deviation from the [s]tandard of [c]are MUST have occurred” is conclusory and fails to establish 

the required breach of the standard of care.

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04-13-00613-CV

Joaquin also argues that Dr. Melmed was not required to explain how Lawton failed to 

preserve a sufficient blood supply to the abdominal wall, citing Roark v. Allen, 633 S.W.2d 804, 

809-10 (Tex. 1982). Again, we disagree. Roark addresses pleading requirements, not expert report 

requirements, and thus has no application to the present case. See id.

Dr. Melmed’s reports contained no specific information about how Lawton breached the 

standard of care or about what he should have done differently. We, therefore, hold that the reports 

failed to establish one of the required statutory elements: that Lawton breached the standard of 

care. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex. 2006) (agreeing that expert reports were 

deficient because they failed to address “how Dr. Jernigan breached the standard or how his 

unstated breach of duty caused [the patient’s] death with sufficient specificity for the trial court, 

and Jernigan, to determine that the allegations against him had any merit.”); Palacios, 46 S.W.3d 

at 879 (“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.”); Longino v. 

Crosswhite, 183 S.W.3d 913, 917 (Tex. App.—Texarkana 2006, no pet.) (concluding that an 

expert report was deficient when it contained no specific information about how the defendant 

breached the standard of care). 

Additionally, an expert’s report must address another statutory element: the causal 

relationship between the breach and the injury, harm, or damages. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(r)(6). To establish a causal relationship in the present case, Dr. Melmed was 

required to “explain the basis of his statements to link his conclusions to the facts.” See Wright, 79 

S.W.3d at 52. Although Dr. Melmed concluded that the injury—“major skin and tissue loss”—

was caused by “a major compromise of [] vascularity that occurred during the abdominoplasty,” 

there is no information in the reports linking this “major compromise of [] vascularity” to Lawton’s 

conduct during Joaquin’s surgery. In fact, in the supplemental report, Dr. Melmed states that “the 

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surgical records, as dictated, make no mention of any problems encountered during the procedure, 

or how the compromised circulation occurred.” Therefore, Dr. Melmed’s reports fail to establish 

yet another required statutory element: causation. Hutchinson v. Montemayor, 144 S.W.3d 614, 

618 (Tex. App.—San Antonio 2004, no pet.) (holding the trial court properly dismissed a 

healthcare liability claim when the expert’s report did not set forth facts or explain the medical 

basis for her opinion that the doctor’s breaches caused the patient’s injury); Lopez v. Montemayor, 

131 S.W.3d 54, 60 (Tex. App.—San Antonio 2003, pet. denied) (holding that an expert’s opinion 

was conclusory and did not fulfill statutory causation requirements when it did not provide 

information linking the doctor’s actions to the patient’s death).

We conclude the information in Dr. Melmed’s reports (1) failed to inform Lawton of the 

specific conduct called into question, and (2) failed to provide a basis for the trial court to conclude 

that Joaquin’s claim had merit. Therefore, the trial court abused its discretion denying the motion 

to dismiss. 

CONCLUSION

We reverse the trial court’s order denying the motion to dismiss, and remand this case to 

the trial court for (1) entry of an order granting the motion to dismiss with prejudice, and (2) other 

proceedings consistent with our opinion.

Karen Angelini, Justice

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