TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (Vernon Supp. 2007). 1

NUMBER 13-07–682-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

RODOLFO GUERRERO, M.D., Appellant,

v.

ROSARIO RUIZ AND HUSBAND,

ROBERTO RUIZ, Appellees.

 

On appeal from the 275th District Court of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Vela

Memorandum Opinion by Justice Yañez

Appellant, Rodolfo Guerrero, M.D., challenges the trial court’s denial of his motion

to dismiss a claim filed by appellees, Roberto and Rosario Ruiz (“the Ruizes”), for failure

to provide an expert report that satisfied section 74.351(r)(6) of the Texas Civil Practice

and Remedies Code. We reverse and remand. 1
 Id. § 74.351(b). 2

 253 S.W .3d 204, 207-08 (Tex. 2008). 3

2

Background

The Ruizes’ original petition, filed on April 13, 2007, provides the following factual

summary:

On the 3rd day of February, 2005, Rosario Ruiz was admitted at

Knapp Medical Center, a hospital in Weslaco, Texas, for a surgical

procedure to excise a tumor on the posterior triangle on the left side of the

neck. Dr. Rodolfo Guerrero performed the surgical procedure on Rosario

Ruiz. In performing the surgical procedure, Dr. Rodolfo Guerrero injured

Rosario Ruiz’ [sic] vocal cords and nerve affecting the left side of the

diaphragm. . . . Rosario Ruiz has suffered physical pain and mental anguish

as a result of these injuries . . . . Her husband, Roberto Ruiz, has suffered

loss of consortium and household services . . . .

On August 29, 2007, Guerrero filed a motion to dismiss appellees’ claim pursuant to

section 74.351(b) of the civil practice and remedies code. Guerrero argued that the 2

Ruizes’ expert report, prepared by Louis F. Silverman, M.D., failed to satisfy section 74.351

in that it failed to (1) set forth the standard of care applicable to appellant; (2) identify how

appellant breached the standard of care; and (3) identify and explain any causal link

between any alleged breach and appellees’ complained-of injuries.

The trial court denied Guerrero’s motion to dismiss on October 15, 2007. This

interlocutory appeal then ensued.

Waiver

The Ruizes assert that we lack jurisdiction over Guerrero’s appeal. The

jurisdictional argument raised by the Ruizes, however, was explicitly rejected by the Texas

Supreme Court in Lewis v. Funderburk, an opinion issued two months after the Ruizes 3
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W .3d 873, 877 (Tex. 2001). 4

 See Bowie Mem’l Hosp. v. Wright, 79 S.W .3d 48, 52 (Tex. 2002). 5

 Walker v. Packer, 827 S.W .2d 833, 839-40 (Tex. 1992). 6

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). 7

 See id. § 74.351(a), (l). 8

 See Palacios, 46 S.W .3d at 878.

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filed their brief. Accordingly, we reject the Ruizes’ argument and shall proceed to address

the merits of Guerrero’s appeal.

Standard of Review

We review a trial court’s ruling regarding the adequacy of an expert report for abuse

of discretion. A trial court commits an abuse of discretion if it acts in an arbitrary or 4

unreasonable manner without reference to guiding rules or principles. We may not 5

substitute our judgment for that of the trial court when reviewing matters committed to the

trial court’s discretion.6

Under section 74.351 of the Texas Civil Practice and Remedies Code, health care

liability claimants must provide an expert report to the defendant no later than 120 days

after filing the original petition. A defendant may file a motion challenging the adequacy 7

of the report, and the trial court “shall grant” the motion only if it appears that the report

does not represent a good faith effort to comply with the statutory definition of an expert

report. In determining whether the report represents a good faith effort, the trial court’s 8

inquiry is limited to the four corners of the report, and no inferences may be drawn from

information outside the report.9

An expert report is defined as a written report by an expert that provides a fair
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Palacios, 46 S.W .3d at 878-79. 10

 Palacios, 46 S.W .3d at 879.

11

 Id. 12

 Wright, 79 S.W .3d at 52. 13

Palacios, 46 S.W .3d at 879.

14

 Id. 15

 Wright, 79 S.W .3d at 53. 16

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summary of the expert’s opinions regarding: (1) the applicable standard of care; (2) the

manner in which the care provided failed to meet that standard; and (3) the causal

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

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compliance with these standards, the expert report must incorporate enough information

to fulfill two purposes: (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 the claims are meritorious. A report merely expressing the expert’s 11

conclusions about the standard of care, breach, and causation fails to fulfill these

purposes. The expert must explain the basis for his statements and must link his 12

conclusions to the facts. However, to avoid dismissal, a plaintiff need not present all the 13

evidence necessary to litigate the merits of her case. The report may be informal in that

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the information need not fulfill the same requirements as the evidence offered in a

summary-judgment proceeding or at trial. Moreover, the expert is not required to express 15

the causal relationship in terms of any “magical” words.16

The Expert Report

The Ruizes’ expert report, written by Dr. Silverman, stated, in relevant part, the
5

following:

I am qualified by education, training, and experience to assess the quality of

such surgical procedures as that performed by Dr. Guerro [sic] upon Ms.

Ruiz, and to render an expert opinion regarding the quality of such care.

. . . .

When a surgeon performs an operation on the neck, the standard of care

mandates that vital structures such as the phrenic nerve which innervates

the diaphragm be preserved unless directly involved in a malignant process.

Damage to the phrenic nerve causes paralysis of the diaphragm. Ms. Ruiz

had a normal preoperative chest x-ray and no hoarseness prior to the left

neck surgery performed by Dr. Guerro [sic] on February 13, 2005. These

findings were noted following that surgery.

More likely than not, this finding was the results [sic] of damage to the

phrenic nerve during Ms. Ruiz's operation. Failure to protect this nerve

during neck surgery is clearly below standard. In all reasonable medical

probability, Dr. Guerro's [sic] failure to protect Ms. Ruiz's phrenic nerve was

the proximate cause of Ms. Ruiz's injury.

Discussion

The Ruizes contend that their expert report sets out the standard of care through

the following excerpt: “When a surgeon performs an operation on the neck, the standard

of care mandates that vital structures such as the phrenic nerve which innervates the

diaphragm be preserved unless directly involved in a malignant process.” They further

contend that breach and causation are established through Dr. Silverman’s contention that

“[d]amage to the phrenic nerve causes paralysis of the diaphragm,” in conjunction with the

following statements: “Failure to protect this nerve during neck surgery is clearly below

standard. In all reasonable medical probability, Dr. Guerro's [sic] failure to protect Ms.

Ruiz's phrenic nerve was the proximate cause of Ms. Ruiz's injury.”

We find that the expert report does not sufficiently demonstrate that Guerrero

breached the standard of care set out in Dr. Silverman’s report. Though the report states
 See Palacios, 46 S.W .3d at 878.

17

 See Hutchinson v. Montemayor, 144 S.W .3d 614, 618 (Tex. App.–San Antonio, no pet.); see also 18

Cooper v. Arizpe, No. 04-07-007334-CV, 2008 Tex. App. LEXIS 2506, at *9-11 (Tex. App.–San Antonio Apr.

9, 2008, pet. filed) (holding that an expert report failed to establish that defendants breached the standard of

care because finding that the defendants breached required the court to make an assumption outside the

report’s four corners).

 Palacios, 46 S.W .3d at 880 (quoting Palacios v. Am. Transitional Care Ctrs. of Tex., Inc., 4 S.W .3d 19

857, 865 (Tex. App.–Houston [1st Dist.] 1999) (Taft, J. dissenting)).

 Id. at 876.

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that Guerrero failed “to protect Ms. Ruiz’s phrenic nerve,” the report also seems to imply

that the nerve need not be protected if it is “directly involved in a malignant process.”

There is nothing in Dr. Silverman’s report establishing that the phrenic nerve was not

directly involved in a malignant process. And because we are limited to the four corners

of the report and inferences may not be drawn from information outside the report, we 17

may not simply assume that it was not directly involved. Accordingly, we find that the 18

Ruizes’ expert report is deficient in failing to establish that Guerrero breached the standard

of care.

We further find that the Ruizes’ expert report does not sufficiently set out the

standard of care applicable to Guerrero. In Palacios, the Texas Supreme Court observed

that identifying the standard of care is critical, stating:

Whether a defendant breaches his or her duty to a patient cannot be

determined absent specific information about what the defendant should

have done differently. “While a ‘fair summary’ is something less than a full

statement of the applicable standard of care and how it was breached, even

a fair summary must set out what care was expected, but not given.”19

In that case, Palacios was a patient who suffered injuries after falling from his hospital bed;

Palacios and his family then brought suit against the hospital, seeking compensation for

the injuries Palacios sustained from his fall. The supreme court stated that the statement 20
 Id. at 880.

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the Palacioses relied on in their expert report to establish the standard of care—“that

precautions to prevent Palacios’ fall were not properly used”—was not a statement of a

standard of care, stating: “Neither the trial court nor [the hospital] would be able to

determine from this conclusory statement if [the expert] believes that the standard of care

required [the hospital] to have monitored Palacios more closely, restrained him more

securely, or done something else entirely.” With this statement comes the implicit 21

contention that the Palacioses’ expert report could not have adequately established the

standard of care through a bare assertion that the standard of care mandated that patients

be safeguarded from falling out of bed—for this assertion would not provide any insight as

to what exactly the hospital should have done, but failed to do, to uphold the standard of

care. Such a bare assertion is similar to that proffered by the Ruizes’ expert report.

The Ruizes’ expert report states that Guerrero failed to protect the phrenic nerve,

which goes against a standard of care mandating that the nerve be preserved. It is entirely

unclear from the report, however, what specific actions were required by Guerrero to

preserve the phrenic nerve (e.g., isolate the phrenic nerve through the use of a medical

apparatus, or perhaps simply possess a steadier hand).

Extension of Time

The parties disagree as to what course of action this Court should take upon finding

the Ruizes’ expert report deficient. The Ruizes contend that we should remand their cause

to the trial court so it can consider their earlier request for a 30-day extension to cure any
 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). 22

 See generally Miranda v. Martinez, No. 13-06-386-CV, 2007 Tex. App. LEXIS 1802, at *13-15 (Tex. 23

App.–Corpus Christi Mar. 8, 2007, pet. denied) (mem. op.).

 Leland v. Brandal, No. 06-1028, 2008 Tex. LEXIS 574, at *8 (Tex. June 13, 2008). 24

 In his brief, Guerrero seeks an award of costs. Because we are remanding the case to the trial 25

court so that the court may exercise its discretion in determining whether or not to afford the Ruizes a 30-day

extension, a determination of entitlement to costs is premature.

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and all deficiencies with their report. Guerrero contends that this course of action, which 22

this Court has traditionally taken, is wrong. Subsequent to the filing of Guerrero’s 23

appellate brief, however, the Texas Supreme Court held that “section 74.351’s plain

language permits one thirty-day extension when the court of appeals finds deficient a

report that the trial court considered adequate,” thus affirming the propriety of this Court’s 24

policy of remanding. Accordingly, we find that the trial court still has discretion to entertain

the Ruizes’ request for a 30-day extension to cure deficiencies in their report.

Conclusion

We reverse the trial court’s order denying Guerrero’s motion to dismiss and remand

for further proceedings consistent with this opinion.

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LINDA REYNA YAÑEZ,

Justice

Memorandum Opinion delivered and filed

this the 29th day of August, 2008.