### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00601- CV

Austin Regional Cli nic, P .A. and S teve Wilki ns, M.D., Appellan ts

v. Sean Power, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 1–00 0881 , H ONO RAB LE TIM SULAK , JUDGE P RESIDING

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

Austin Reg ional Clini c, P.A. (“A RC”) and S t ev e Wil kins, M.D., bring this interlocutory appea l challeng in g t h e t ri al court’s denial of their motion to dismiss appellee Sean Power’s health car e liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (9) (West Supp. 2011). Power broug ht direc t liability claims ag ainst ARC and Wil kins, as well as vicar ious liability claims ag ainst ARC. After Power serve d an expert repor t, ARC and Wi l k ins objected to the repor

t and moved to dismiss

. See id

. § 74.351(b) (West 2011). The trial court denied their motion to dismiss and g rante d Power a thirty -day extension t o cure defic iencies in the expert
repor t. See id . § 74.351(c) (West 2011).
I n five issues, appellants contend that the expert who aut h ored the repor t was not qualified to g ive an opinion on the applicable standards of car e and on causa tion, and they challeng e the repor t itself as to the direc t liability claims ag ainst ARC. Appellants contend that the “expertrepor

t at issue is the leg al equivale nt of ‘no re port’” a s to those claims. See Scoresby v. Santillan , 346 S.W .3d 546, 556 (Tex. 2011). Alterna tively , they contend that Power judicially abandone d his direc t liabilit y

claims ag ainst ARC during the he aring on appellants’ motion to dismiss

. For the rea sons that follow, we dismiss this appea l for want of jurisdiction to the
extent appellants challeng e the trial court’s denial of their motion to dismiss Power’s claims based
upon the qualifica tions of the expert repor t’s author. We reve rse the trial court’s order , howeve r, to the extent the trial court denied appellants’ motion to dismiss the direc t liability claims ag ainst ARC. We r emand the case to the trial court with instructions to dismiss the direc t liability claims ag ainst ARC and to c onsider ARC’s reque st for attorne y ’s fe es and c osts pursuant to section 74.351(b) of the civil prac tice and r emedies c ode. See Tex. Ci v. Prac. & Rem. Code Ann. § 74.351(b). 1

BACK GR OUND On Fe bruar

y 22, 2009, Wil kins, who i s a p h y sician, trea ted Power at an ARC afte r-hour clinic for a wrist injury

. Power did not rec eive additional trea tment for his injury until late
Marc h 2009. At that time, he saw an orthopedic surg eon who diag nosed a wrist fract ure and, approximately

one month later, pe rfor

med surg ery

to treat the f

rac ture. Power filed suit in Marc h 2011 ag ainst ARC and Wil kins, as well as the orthopedic
surg eon and other defe ndants, asser ting health car e liability claims arising from the car e and

Also pending befor e the Court is appellants’ opposed motion to de em appellants’ rec ited 1 fac ts as true, for rebr iefing by Power, and to s t ri k e ex h i b its. We g rant the motion to the extent it reque sts this Court to disreg ard evidenc e that was not be fore the trial court. See Cantu v. H orany , 195 S.W .3d 867, 870 (Tex. App.—Dallas 2006, no pet.) (appe llate courts g ener ally cannot consider documents that ar e not prope rly included in re cord) . We deny all other re quests in the motion. 2trea tment of his wrist injury

. See id

. § 74.001(a) (13) (W est Supp. 2011) (def ining “hea lth car e 2 liability claim”)

. As to ARC and Wil kins, Power alleg ed that they we re n egl i gent by failing to
proper ly diag nose, inform, or tr eat his injury

. Wit hin 120 day s of filing suit, Power serve d appellants with an expert repor t, along with the authoring expert’s curr iculum vitae. See id

. § 74.351(a) (West 2011). The expert, a board

cer tified orthopedic surg eon, identified Wil kins as the phy sician who initially saw and trea ted Power at ARC. The expert not ed that Wil kins obtained x -ra y s of P ower ’s l eft wrist and st ated “no acute chang es seen.” The expert addre ssed the standard of car e and summarized his conclusions, stating in releva nt part:

I n any case the standard of car e would be prompt follow-up by a family phy sician or orthopedic surg eon. The patient should be notified that he/she needs follow -up evalua tion. Fur

thermore the standard of car e would dictate that the radiolog ist rea d these films within 24-48 h o u rs an d n otify a trea ting phy sician of the prese nce of a fra cture

. St an d ar d o f car e would indicate that this fra cture should have been immobil ized promptly afte r injury which would most likely have resulted in fra cture healing without surgic al interve ntion and possible complications of surg ery .
* * * There was a delay in diag nosis which resulted in a delay of appropr iate trea tment (immobili zation). This resulted in a surg i cal intervention. Early intervention (prompt immobil ization afte r injury) would probably hav e avoided the need for surg ery .

The orthopedic s urg eon is one of the defe ndants in the underly ing suit. The sur g eon did 2 not challeng e the e x pert re port at issue and is not a pa rty to this appeal. 3The expert’s curr iculum vitae shows that he beg an prac ticing medicine in 1973 and continued to do

so at the time he pre pare d the expert repor t. His prac tice experienc e included e merg ency medicine from 1973 to 1977 and then or thopedic surg ery

afte r 1977. Wil kins and ARC filed objections to t h e expert repor t and soug ht dismiss al under section 74.351 of the civil prac tice and reme dies code. See id

. § 74.351(b). They urg ed that the
repor t was so defic ient that Power had failed to serve an expert re p o rt at all within the 120-day deadline and, there fore , that Power’s c laims ag ainst them should be dismiss ed. Their objections to the repor t included challeng es to its author’s qualifica tions. See id. §§ 74.401 (qualification of expert witness in suit ag ainst phy sician), .402 (qualification of expe rt witness in suit ag ainst health car e provider) , .403 (qualifica

tion of expert witness on causa tion) (West 2011). They also challeng ed the adequa cy of t he report i tself, co n t en d i n g t hat t he report failed “to address the required elements of standard of car e, brea ch and causa tion in the manner statutorily and j u d i ci al l y require d.” They objected to the “spec ulative opinions” in the repor t and the repor

t’s “fa ilure to identify [W ilkins] by

name a nd corr elate e ach of

the re port eleme nts to each of [hi s] allege d acts or omissions.” The trial court held a hear ing on appellants’ objections and motion to dismiss

. At the hear ing, the trial court did not consider additional expert repor ts that Power serve d on appellants afte r the 120-day deadline for serving expert repor ts. See id

. § 74.351(a)

. The trial co u rt al s o d i d not consider ap p e ll a

n ts ’ s u p p le me n ta l o b je c ti o n s a n d motion to dismiss as to the additional expert repor ts. After the hea ring , the trial cour

t denied appellants’ motion to dismiss as to the ex pert re port serve d within the 120-day deadline and g ran t ed P o we r a thirty -day extension to cure defic iencies in the

4repor

t. See id

. § 74.351(c)

. Appel l an t s ’ s upplemental objections and motion to dismiss as to the additional expert repor

ts remain pending with the trial court. This appe al followed.

ANALYSIS Under chapte r 74 of the civil prac tice and reme dies code, a claimant asser ting health

car e liability claims is require d as a threshold matter to serve an expert repor t with a curr iculum vitae by th e 1 2 0 t h d ay af

t er the orig inal petition is filed for eac h phy sician named in the suit. See id

. § 74.351(a) . Section 74.351(r) (6) de fines an e x pert re port as follows:

a written repor

t by an expert that provides a fair summary of the expert’s opinions as of the da te of the repor

t r eg arding applicable standards of car e, the manner in which the car e rende red by the phy sician or health car e provider failed to meet the s t an d ar ds, and the causa l rela tionship betwee n that failure and the injury , harm, or damag es cla imed.

Id

. § 7 4

. 3 5 1 (r )( 6 ). The expert repor t is not meant for the trier of fac t. See id. § 74.351(k) (expert
repor t g ener ally not admissible and parties may not ref er to it “during the course of the action for any purpose” ). I ts pur

pose is “ to de ter frivolous claims.” Scoresby , 346 S.W .3d at 554. “The repor t is intended to inform the defe ndant of the specific conduct that the claimant has ca l l ed i nto question and provide a basis for the trial court to conclude that the claims h av e m er i t

. ” Fung v. Fischer ,

__ S.W .3d __, No. 03-10-00298- C V, 2012 Tex. App. L EXI S 2956, at *10 (Tex. App.—Austin Apr. 13, 2012, no pe t.) (citations omitted).

A defe ndant whose conduct is implicated in an expert repor t may file objections to the report’s sufficie ncy . See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a)

. A trial court, howe v er , should not g rant a motion challeng ing the adequa cy of an expert repor t unless “it appea

rs to the court,
5afte r hear ing, that t h e re p o rt d o es not repr esent an objective g ood faith eff ort to comply with the definition of an expert repor t in Subsection (r) (6).” Id

. § 74.351( l ). When a repor t is serve d within the 120-day deadline but found by the trial court to be d ef i ci en t , the trial court may g rant one thirty -day extension t o cure defic iencies in the r eport. Id . § 74.351(c)

. When a trial court “denies all or part of t he relief sou gh t by a mot ion under Section 74.351(b),” the defe ndant phy sician or health car e provider may bring an interlocutory appea l f rom the orde r. Id . § 51.014(a) (9). B ut appellate c ourts lack jurisdiction over an interloc utory

appea l of the denial of a motion to dismiss when a claimant timely serve s a “def icient” repor

t—as opposed to “no repor t”—and the trial court g rants a thirty -day extension. Scoresby , 346 S.W .3d at 555; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (9) (interlocutor y appea l “may not be taken from an order
g ranting an extension under Section 74.351”). T he supreme court has rec og nized the logic and
prac ticality

of prohibiting a

n appea l when the tria l court has g rante d a thirty -day extension:

This pro hibition is both logic al and prac tical. .

. . I f a defe ndant could immediately (and prema turely

) appea l, the court of appea ls would addre ss the repor t’s sufficie ncy while its defic iencies wer e presumably being cure d at the trial court level, an illogica l and wastef

ul result. Moreove r, beca

use the L eg islature authorized a single , thirty -day extension for defic ient repor ts, health car e providers fac e only a minimal delay befor e a re port’s suffic iency may ag ain be challeng ed and the ca se dismissed, if warr anted.
Ogletree v. Matthews , 262 S.W .3d 316, 321 (Tex. 2007).

W e revie w a trial court’s ruling on a motion to dismiss broug ht under s ec t i o n 74.351(b ) fo r an abuse of discretion. Rosemond v. Al-Lahiq , 331 S.W .3d 764, 766 (Tex. 2011); American Transit ional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W .3d 873, 877–78 (Tex. 2001). A trial court abuses its discretion when it acts in an unrea sonable and arbitra ry manner , or when it acts
6without r efe renc e to a ny g uiding rules or principles. W alker v . Gutierrez , 111 S.W .3d 56, 63 (Tex. 2003). With t his backg round, we turn to appellants’ issues.
Qualification s of Expert Report’s Aut hor
I n their first, second, and fourth issues, appellants challeng e the qualifica tions of the expert repor

t’s author, contending that he was not qualified to g ive an opinion on the standard of car e applicable to Wil kins or ARC or on causa tion as t o ARC and , t h ere fore , that the t rial court abused its discretion by deny ing their mot i o n to dismiss

. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.401–.403.

Appellants urg e that this Court should beg in its analy sis with the statutory provisions addre ssing qualifica tion of expert witnesses, see id ., and Texas common law addre ssing when phy sicians from differ ent medical fields are q ualified to testify ag ainst one another in medical malprac tice case s. See Broders v. Heise , 924 S.W .2d 148, 152–53 (Tex. 1996) (noting that “ther e is

no validity , if there ever was, to the notion that ever y licensed medical doctor should be automatically qualified to testify as an expert on ever y medical que stion”). Ag ainst this backdrop, they urg e that Power’s “expert, a board cer tifie d specia list, does not have the require d knowledg e, training , experience or educa

tion require d to g ive an opinion critica l of a m o re g ener alized family prac tice phy sician or of a health care provider whose fa ci l i t i es and st aff ing are alleg ed to be inadequate for
trea ting a medical c ondition such as [P ower ]’s.” The supreme court’s analy sis in Scoresby inf o rm s our decision here

. Simi lar to the
proce dural posture in th is case , the defe ndant surg eons appea led the trial court’s denial of their motion
to dismiss broug ht under section 74.351. Scoresby , 346 S.W .3d at 551. The plaintiff filed an expert
7repor

t w ithin the 120-day

deadline, but the de fenda nt surg eons objec ted to the repor t a nd arg ued in their m otion that it “wa s too inadequa te t o q u al ify as an expert repor t.” Id. Among the obj ections that they made, t h e d ef

en d ant surg eons asserted that the ex pert, who was a neurolog ist, “[was] not qualified to testify reg arding the standard of car e for an ENT surg eon in perf orming the proce dures”
at i s s u e. Id

. The trial court denied their motion and g rante d a thirty -day extension to cure defic iencies in the expert repor t. Id

. Whil e the appea l was pending , the defe ndant surg eons objected
to an amende d repor

t filed by the plaintiff afte r the 120-day deadline and moved ag ain for dismiss al with the trial court. Id

. at 552. The objections an d m o t i o n to dismiss as to the amende d repor t

rema ined pending with the trial court dur ing the appea l. Id

.

I n that case , the supreme court aff irmed the court of appea l’s decision that dismiss ed the interlocutory appea l for want of jurisdiction. Id

. at 5 5 8

. Up h o lding the trial court’s order , the
supreme court conclude d that “[a]ll defic iencies, whether in the expert’s opinions or qualifica tions,

are subject to being cure d befor e an appea l may be taken from the trial court’s ref usal to dismiss the

case .” Id . at 557. The c ourt explained:

An individual’s lack of rele vant qualifica tions and an opinion’s inadequa cies are defic iencies the plaintiff should be g iven an opportunity to cure if it is possible to do so. This lenient standard avoids the expense and delay of multipl e interlocutory appea ls and assure s a claimant a fair opportunity to demonstrate that h i s cl ai m is not frivolous.

Id. at 549. Foc using on the Act’s g oal of deter ring frivolous claims, the supreme court direc ted trial courts to “be lenient in g ranting thirty day extensions” and to g rant an extension “if defic iencies

8in an expert repor t can be cure d within the thirty -day period.” Id. at 554; see id. at 556 (“A n inadequa te expert repor

t do es n o t indicate a frivolous claim if the repor t’s defic iencies are rea dily

cu ra ble.”)

. The supreme court also set forth the “minimal” standard for g ranting a thirty -day extension: that a trial court may g rant an extension “if the repor t is serve d by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defe ndant’s conduc t is im plicated.” Id . at 557.

Apply ing this standard here , the expert repor t at i s s u e wa s fi led within the 120-day deadline and implicated the conduct of Wil kins. Appellants also do not dispute that Wil kins was ARC’s ag ent acting within the course and scope of his employ ment while he was trea ting Power. See Baptist Mem ’l Hosp. Sys. v. Sampson , 9 6 9 S

. W

. 2 d 945, 947 (Tex. 1998) (“U nder the doctrine of responde at superior, an employ er is vicar iously liable for the neg lige nce of an age n t o r employ ee acting within the scope of his or her ag ency or employ ment, althoug h the principal or employ er has
not persona lly committed a wrong .” (citations omitted)). The only rema ining inquiry then is whether the expert repor

t’s author was an “individual with expertise” that P o we r’ s cl aim s have merit. See Scoresby , 346 S.W .3d at 557.

The trial court would not have abused its discreti o n by concluding that a board

cer tified orthopedic surg eon with near ly forty y ear s of ex perie nce, including practicing em er gency medicine, was an “individual with expertise ” t o o p i n e ab out the merit of claims arising from the alleg ed failure to diag nose and trea t a bone fra cture

. See id

. Following the supreme court’s direc tive in Scoresby , we conclude that the trial court did not abuse its discretion by deny ing appellants’ motion to dismi ss to the ext ent the motion was base d upon the qualifica tions of the expert repor t’s author.

9Given that the trial court g rante d a thirty -day extension, we also conclude that we do

not have ju ri s d i ct ion to further consider appellants’ issues challeng ing the author’s qualifications. Id

. (dec lining to express its “view on the adequa cy of [t he expert]’s qualifica tions; the trial court did
not specific ally addre ss the matter” and concluding that “pre mature

. . . to consider it”); see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (9) (interlocutor y appea l from thirty -day extension not allowed ); S

eastruck v. Meza , No. 04-10-00840- CV, 2011 Tex. App. L EXI S 6193, at *8–9 (Tex. App.—San Antonio Aug . 10, 2011, no pet.) (me m. op.) (dismissing for w ant of jurisdiction appe al of trial court’s denial of motion to dismiss and g rant of a thirty -day extension to cure beca use expert
rep o rt s “m er ely defic ient as opposed to ‘no repor ts’ for which a thirty -day extension was not available” ). 3
Direct Liability Claim s Again st AR C

I n their third and fifth issues, appellants challeng e the trial court’s ref usal to dismiss Power’s direc t liability claims ag ainst ARC. They contend that Power judicially abandone d his direc t liability claims ag ainst ARC during the hear ing befor e the trial court on their motion or, alterna tively , that the trial court abused its discretion by deny ing their motion to dismiss beca use the “expert repor

t at issue is the leg al equivale nt of ‘no re port’” a s to the direct liability claims ag ainst ARC.

Appellants arg

ue in their brief that the adequa cy of the expert’s qu al i fi ca t ions was 3 “pre cisely the question that [t he trial court] was asked to rule upon” and, there fore , that the question is ripe for this Court’s revie w. Although appellants arg ued at the hear ing befor e the trial court and in their moti on that the expert was not qualified, they also arg ued that the repor t itself was “inade quate/no repor

t,” and the trial court did not express its opinion as to the adequa cy of the repor t or the e x pert’s qua lifications at the hea ring and its order

does not state the ba sis for its ruling. 10T h i s C ourt addre ssed the issue of direc t versus vicar ious liability claims asser t ed

ag ainst health car e providers in Fung

. __ S.W .3d at __, 2012 Tex. App. L EXI S 2956, at *32–38. I n that case , we found that the expert repor t at issue was adequat e as to the vicar ious liability claims

asser ted ag ainst the health car e prov i d er but that the trial court should have dismiss ed the direc t liability claims ag ainst the provider beca use the repor

t failed to addre ss those claims. Id

. at *37–38.
I n rea ching our conclusion, we noted th at t h e fac ts require d to establish a health car e provider’ s vicar ious liability , “i.e., the acts of [t he phy sician and the phy sician]’s rela tionship” to the health car e provider, differ from the fac ts require d to establish the health car e provider’ s direc t liability , “i.e., [t he provider]’s provision of par ticular policies a

nd proce dures.” Id . at *30. We further explained:

Under the doctrine of re s p o n d ea t superior, an employ er or principal may be vicar iously liable for the tortious acts of an employ ee or ag ent acting within the scope of the employ

ment or ag ency , even though t he principal or employ er has not persona lly committed a wrong . St. Jos ep h Ho s p. v. W olff , 94 S.W .3d 513, 541–42 (Tex. 2002) (citing Baptist Mem ’l Hosp. Sys. v. Sampson , 969 S.W .2d 945, 947 (Tex. 1998)). I f a party ’s alleg ed health car e liability is purely vicar ious, a repor t that adequately implicates the actions of that party ’s ag ents or employ ee s i s s ufficie nt. Gardner v. U

.S. Imaging, Inc ., 274 S.W .3d 669, 67–72 (Tex. 2008).

. . . . The converse implication of Gardner is that i f a p arty ’s allege d health care liability is not “pure ly vicar ious” but direc t, then a repor t that i mplicates only the actions of that party ’s ag ents or employ ees is insufficient to that extent. Cf. Gardner , 274 S.W .3d at 671–72.

Id

. at *30–31; see also Bowie Mem ’l Hosp. v. W right , 79 S.W .3d 48, 53 (Tex. 2002) (“[T]he r eport must include the requir ed informa tion within i ts four cor ners.” ).

11Simi lar to the expert repor t that was befor e this Court in Fung , the expert repor t here does not addre ss direc t liability claims ag ainst ARC. We, t h er ef ore, conclude that the trial court abused its discretion by deny ing appellants’ motion to dismiss the direc t liability claims ag ainst ARC. Fung , __ S.W .3d at __, 2012 Tex. App. L EXI S 2959, at *37–38; but see Certified EMS, Inc. v. Potts , 3 5 5 S.W .3d 683, 685, 694 (Tex. App.—Houston [1st Dist.] 2011, pet. g rante d) (re aching contra ry conclusion and noting that supreme court “has not direc tly decide d whether expert repor t must set out

eac h and eve ry

liability theory within a cause of ac tion”). We sustain appellants’ f ifth issue. 4

CONCL USI ON Be cause we conclude that the trial court abused its discretion by deny ing appellants’ motion to dismiss the direc t liability claims ag ainst ARC, we reve rse the trial court’s order as to those claims and rema

nd the case to the trial court with instructions to dismiss those claims and to consider ARC’s reque st for attorney ’s fee s and costs. We otherwise dismiss t h is appea l for want 5 of jurisdiction.

Be cause we have sust ai n ed ap p ellants’ fifth issue, we need not addre ss their t hird issue, 4 alterna tively arg uing that Power abandone d the direc t liability claims ag ainst ARC at the hear ing on appellants’ motion to dismiss

. See Tex. R. App. P. 47.1. We not e t h at Power’s attorney at oral arg ument befor e thi s Court conce ded that Power had abandone d his direc t liability claims aga inst ARC. See In re C.C.J. , 244 S.W .3d 911, 921 (Tex. App.—Dallas 2008, n o p et.) (“A party who abandons any part of his claim or defe nse, as contained in the pleading s, may have that fac t enter ed of rec ord, so as to show that the matters there in wer e not tried.” (citing Tex. R. Civ. P. 165)). When questioned by the trial co u rt d uring the hear ing on the motion to dismiss if there was some other basis to name ARC other than vic arious liability , Power’s a ttorney stated: Your Honor, I will conce de that in that repor t, no, there ’s not hing else as to ARC

. We w ill be moving forwa

rd strictly with vicar ious liability u n d e r r e s p o n d e a

t s u p e r io r . Those attorney ’s fee s would be limit ed to those fee s perta ining to pre- d i s missal direc t 5 liability only

. 12__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Henson a nd Goodwin
Reverse d and Remande d in part; Dismissed in part Filed: June 28, 2012

13