NUMBER 13-10-00468-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JORGE DE LA GARZA, M.D., Appellant,

v.

GARY E. SCHRUZ, Appellee.

On appeal from the 275th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela

Memorandum Opinion by Justice Garza

When a medical malpractice plaintiff files an expert report that absolves the 

defendant doctor of any liability, is it even a ―report‖ at all? That is the question posed in 

the instant appeal, in which appellant Jorge De La Garza, M.D., argues that the trial 

court should have dismissed the claims brought against him by appellee Gary E. 
2

Schruz. We dismiss the appeal for want of jurisdiction.

I. BACKGROUND

On October 30, 2009, Schruz sued Dr. De La Garza and Doctors Hospital at 

Renaissance (―Doctors Hospital‖),1alleging medical negligence in connection with the 

care and treatment provided to Schruz during and after undergoing heart surgery. On 

February 26, 2010, one day prior to the statutory deadline, Schruz filed a purported 

medical expert report pursuant to chapter 74 of the civil practice and remedies code. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). The report, authored 

by Mitchell Brooks, M.D., consists of an initial three-page analysis of Schruz‘s case as 

well as a two-page ―Addendum,‖ also dated and served on February 26, 2010. The 

initial analysis states in part:

The clinical records currently available for review essentially document the 

admission and treatment of [Schruz] for ischemic heart disease that 

resulted in the performance of a coronary artery bypass graft x4. . . . 

Jorge De La Garza, M.D. performed the aforementioned surgery on 

November 19, 2007. The patient was transferred to the intensive care unit 

that same day at approximately 12:15 PM. What appears to be at issue in 

this case is whether or not a standard of care was violated with respect to 

the development and subsequent treatment of a decubitus ulcer. Based 

on my review and analysis of the clinical records it would appear that such 

a standard of care was violated on the part of the attending surgeon, 

Jorge De La Garza, M.D. in that he failed to address the issue of the 

stasis ulcer in a timely manner, such that further breakdown resulted in a 

surgical debridement and additional care to the ulcer site.

. . . .

At this point in time I am unable to identify any documentation that 

indicates that Dr. De La Garza took any action with respect to actively 

treating the decubitus ulcer until November 26, 2007. This delay[,] in my 

opinion[,] probably resulted in the surgical treatment of the decubitus ulcer 

that subsequently occurred as a result of the failure to address the issue in 

a timelier manner.

 

1 Doctors Hospital is not a party to this appeal.
3

. . . .

There is additional information that has currently been made available to 

me and I am present[ly] aware of, the content of which is not included in 

this report. This information includes progress notes from multiple 

physicians during that time frame between November 20, 2007 and 

November 26, 2007. If I am able to ascertain whether or not Dr. De La 

Garza addressed the issue of the pressure ulcer then the clinical picture 

and treatment will become clearer. If the records indicate that the 

attending physician initiated no treatment then the opinion expressed 

herein will hold. . . .

The ―Addendum,‖ which directly follows the initial analysis and forms pages four and 

five of Dr. Brooks‘s report, states in part:

I have now had the opportunity to review additional documents with

respect to the above referenced case. These include the ―Physician‘s 

Order Sheets‖ during the dates of stay at the [hospital] as well as the Daily 

Progress Notes that were created by the large number of physicians 

attending this patient.

It would appear that a triple antibiotic ointment or cream was ordered on 

November 22, 2007 to be applied twice daily to the lesion. . . . 

Furthermore, a skin care consultation was ordered on November 24, 2007 

and after a review of the wound care consult dated November 26, 2007, it 

would appear that the patient had an air mattress prior to that date to 

address the possibility of a sacral decubitus ulcer and furthermore, the 

record also indicates that there were numerous diaper changes started on 

or about November 25, 2007, presumably to make sure the skin in the 

perineal area would not become moist. Whoever performed the wound 

care consult (I am unable to read the signature) further indicated the need 

to change the patient‘s mattress. In summation then, it would appear that 

the physician component of the care was in all probability not 

unreasonable with respect to its timing and the actual treatment 

rendered. . . .

Dr. Brooks goes on to state that it ―appear[s] that there may very well have been some 

significant nursing procedures that were violated with respect to communication and the 

obtaining of a wound care consultation. . . .‖ Nevertheless, according to Dr. Brooks, 

―[f]rom the physician perspective, it would thus appear at this point in time that the 

sequence of events and the apparent treatment does not appear to be unreasonable or 
4

outside the standard of care of the community in which the patient was treated.‖

On March 12, 2010, Dr. De La Garza moved to dismiss the suit on grounds that 

Dr. Brooks‘s report was insufficient. Dr. De La Garza further contended that the report 

did not actually constitute a ―report‖ under the statutory definition, and that Schruz was 

therefore not entitled to any extension of time to file an amended report. See id.

§ 74.351(b), (c). Schruz responded by claiming that the report was sufficient or, in the 

alternative, that the trial court should grant an extension of time to cure any deficiency in 

the report. After a hearing, the trial court determined on August 3, 2010 that the report 

was ―deficient‖—rather than ―no report‖—and granted Schruz‘s request for a thirty-day 

extension of time to file a sufficient report. This interlocutory appeal followed. See id.

§ 51.014(a)(9) (West 2008) (permitting appeal of interlocutory order denying all or part 

of a motion to dismiss for failure to serve an expert report in a health care liability claim);

Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009) (―A provider may pursue an 

interlocutory appeal of the denial of a motion to dismiss when no expert report has been 

timely served, whether or not the trial court grants an extension of time.‖ (Emphasis 

added.)); cf. Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007) (holding that, if a 

deficient report is served and the trial court grants a thirty-day extension, that decision, 

even if coupled with a denial of a motion to dismiss, is not subject to interlocutory 

appeal).

II. DISCUSSION

A. Standard of Review

We review a trial court‘s order denying a motion to dismiss for failure to comply 

with the expert report requirement under an abuse of discretion standard. NCED 
5

Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.) 

(applying abuse of discretion standard to trial court‘s denial of motion to dismiss); 

Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied) 

(same); see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 

(Tex. 2001) (applying abuse of discretion standard to trial court‘s granting of motion to 

dismiss). A trial court abuses its discretion if it acts in an arbitrary or unreasonable 

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

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). However, a trial court has no 

discretion in determining what the law is or in applying the law to the facts. Walker v. 

Packer, 827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 

909, 916 (Tex. App.–Dallas 2007, pet. denied).

B. Applicable Law

Under chapter 74, a plaintiff asserting a health care liability claim must serve a 

medical expert report upon each party's attorney no later than the 120th day after the 

date the original petition was filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The 

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.

Id. § 74.351(r)(6). Although a report need not marshal all of a claimant‘s proof, it must 

include the expert‘s opinion on each of the elements identified in section 74.351. 

Palacios, 46 S.W.3d at 878.
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When a defendant files a motion challenging the adequacy of a report, the trial 

court will grant the motion only if, after a hearing, it appears that the report does not 

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

in Subsection (r)(6).‖ TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). To constitute a 

―good faith effort,‖ the report must provide enough information to (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. Bowie Mem’l Hosp. v. 

Wright, 79 S.W.3d 48, 52 (Tex. 2002); see Palacios, 46 S.W.3d at 879.

If an expert report has been served within the 120-day period but elements of the 

report are found deficient, the court may grant one thirty-day extension to the claimant 

in order to cure the deficiency. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). On the 

other hand, if no expert report at all is filed within the 120-day period, no extension is 

permitted, and the trial court must dismiss the claim against the defendant and award 

reasonable attorney‘s fees. Id. § 74.351(b).

C. Analysis

In the ―Addendum‖ attached to his report, Dr. Brooks stated that ―the physician 

component of the care [given to Schruz] was in all probability not unreasonable‖ and 

that ―[f]rom the physician perspective, . . . the apparent treatment does not appear to be 

unreasonable or outside the standard of care of the community in which the patient was 

treated.‖ Neither party disputes that these statements render the report insufficient to 

satisfy the requirements of the expert report statute, in part because the report did not 

―provide a basis for the trial court to conclude that the claims [against Dr. De La Garza] 

have merit.‖ Bowie Mem’l Hosp., 79 S.W.3d at 52. The sole question for this Court, 
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then, is whether Dr. Brooks‘s report was so insufficient as to constitute no report—in 

other words, an ―absent report‖—such that Schruz would not be entitled to a thirty-day 

extension of time to cure any deficiencies.

The Texas Supreme Court has not yet squarely addressed this issue. However, 

several recent cases presented similar fact patterns. In Ogletree v. Matthews, the 

defendant urologist argued that the plaintiff‘s expert reports were so deficient as to be 

―nonexistent‖ because they were authored by nurses and a radiologist. 262 S.W.3d 

316, 318 (Tex. 2007). The Court noted that a ―deficient‖ report differs from an ―absent‖ 

report in one ―important respect‖: when the former is served by a health care liability 

plaintiff, the trial court retains its discretion to grant a thirty-day extension to cure the 

report; whereas when the latter is served, no extension is permitted. Id. In that case, 

the Court concluded that the expert reports were ―deficient,‖ and not ―absent.‖ Id. at 

321. In a concurring opinion, Justice Willett observed that, in addition to ―deficient‖ and 

―absent‖ reports, ―there exists a third, albeit rare, category: a document so utterly 

lacking that, no matter how charitably viewed, it simply cannot be deemed an  ̳expert 

report‘ at all, even a deficient one.‖ Id. at 323 (Willett, J., concurring). Such a document 

may not purport to be a report at all, and its author may not have intended 

it as such. For example, it may (by its own terms) be provider 

correspondence or perhaps ―medical or hospital records or other 

documents‖ or other health-related paperwork that, while related to the 

patient‘s care and condition, neglects altogether to address the 

rudimentary elements of an expert report; indeed, it may never and 

nowhere accuse anyone of doing anything wrong. Such information 

certainly constitutes discoverable and highly relevant information in a 

lawsuit, but any claimant passing off such material as an expert report, 

and any court treating it as such, evinces a complete disregard for 

Chapter 74‘s unambiguous statutory criteria.

Id. (footnotes omitted).
8

Several months after Ogletree, in Lewis v. Funderburk, 253 S.W.3d 204 (Tex. 

2008), the supreme court enjoyed an ―actual sighting of this rare bird.‖ Id. at 210 

(Willett, J., concurring). In Lewis, the defendant doctor moved to dismiss the plaintiff‘s 

case against him for failure to file an expert report. Id. at 206. In response, the plaintiff 

pointed to a ―thank-you-for-your-referral letter‖ in the medical records. Id. The trial 

court denied the defendant‘s motion to dismiss and granted the plaintiff a thirty-day 

extension, during which the plaintiff filed a second report. Id. The defendant again 

moved to dismiss, the trial court again denied the motion, and the defendant appealed. 

Id. at 206-07. The appellate court dismissed the appeal for lack of jurisdiction, but the 

supreme court reversed, noting that subsection 74.351(c) ―defines a timely but deficient 

report as one that  ̳has not been served,‘‖ and therefore, an interlocutory appeal was

permitted in that case under subsection 74.351(b). Id. at 207-08; see TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014 (permitting appeal of interlocutory order dismissing case 

under subsection 74.351(b)); id. § 74.351(b) (requiring dismissal when report ―has not 

been served‖ within 120 days). In another concurring opinion, Justice Willett argued 

that the defendant in Lewis was entitled to appeal the trial court‘s initial denial of his 

motion to dismiss for failure to file an expert report, because the initial report was, in 

effect, no report at all. Lewis, 253 S.W.3d at 210 (Willett, J., concurring). ―This doctorsigned letter is no more a report than a doctor-signed prescription or Christmas card 

would be.‖ Id. at 211. In contrast to the report at issue in Ogletree, the initial report in 

Lewis ―totally omits the required statutory elements, . . . makes no colorable attempt to 

demonstrate liability,‖ and ―never once accuse[s] anyone of doing anything wrong.‖ Id.
9

at 211-12 (internal quotations omitted). Therefore, according to Justice Willett, the trial 

court had no choice but to grant the defendant‘s initial motion to dismiss. Id. at 212.

Similarly, in In re Watkins, a health care liability plaintiff filed a purported expert 

report that ―was merely a narrative of treatment, and failed to address the standard of 

care, breach, or causation.‖ 279 S.W.3d 633, 633 (Tex. 2009) (orig. proceeding). After 

the trial court granted a thirty-day extension, the plaintiff filed a new report, which the 

defendant did not challenge. Id. at 633-34. On appeal and by a petition for writ of 

mandamus, the defendant sought review of the trial court‘s granting of the thirty-day 

extension. Id. at 634. In a majority opinion, this Court found that, because the trial 

court implicitly found the report to be merely deficient—and not so woefully inadequate 

as to constitute no report at all—it did not abuse its discretion in granting the extension. 

Watkins v. Jones, 192 S.W.3d 672, 675 (Tex. App.–Corpus Christi 2006, no pet.) 

(combined appeal & orig. proceeding). Without determining whether the report was 

absent or merely deficient, a majority of the supreme court agreed that mandamus was 

unwarranted. In re Watkins, 279 S.W.3d at 634. The Court reasoned that ―[i]f no report 

was served, an interlocutory appeal was available, so mandamus is unnecessary. If the 

report was merely deficient, than an interlocutory appeal was prohibited, and granting 

mandamus to review it would subvert the Legislature‘s limit on such review.‖ Id.

(footnotes omitted).

In concurring with the judgment, Justices Johnson and Willett opined that the 

purported expert report in Watkins was not, in fact, an expert report at all, because it 

―does not purport to have any relationship to a health care liability or malpractice case.‖ 

Id. at 635 (Johnson, J., concurring); id. at 637 (Willett, J., concurring) (noting that the 
10

purported expert report ―omits all three (four if you count the missing curriculum vitae; 

five if you count the absence of any expert opinion)‖ statutory requirements and stating 

that ―[t]his is no more an expert report than my son‘s tricycle is a Harley‖). According to 

Justices Johnson and Willett, because this case involved an absent report rather than a 

deficient report, the defendant had the right to appeal the trial court‘s interlocutory order 

denying dismissal. Id. at 635-36, 639-40; see Badiga, 274 S.W.3d at 685 (―A provider 

may pursue an interlocutory appeal of the denial of a motion to dismiss when no expert 

report has been timely served, whether or not the trial court grants an extension of 

time.‖). Having found that the defendant had an adequate remedy by appeal, Justices 

Johnson and Willett concurred in the majority‘s judgment that mandamus was 

inappropriate. In re Watkins, 279 S.W.3d at 636 (Johnson, J., concurring); id. at 639-40 

(Willett, J., concurring). In his concurrence in Watkins, Justice Willett summed up his 

views on this issue as previously expressed in Ogletree and Lewis:

I concede that courts, this one included, cannot decree with micrometerlike precision when something falls from deficient to so-deficient-it‘sabsent. Each case has its own distinct facts, but judges are not incapable 

of applying indistinct lines, or at a minimum prescribing the outer ones. 

One bright-line marker seems beyond reasonable objection: when a 

―report‖ contains none of the statutorily prescribed contents. . . . If a

document bears zero resemblance to the statute—containing nothing that 

makes a report a report—it cannot receive an extension.

In re Watkins, 279 S.W.3d at 639.

Despite having reviewed several cases presenting variations on the ―no report v. 

deficient report‖ theme, a majority of the high Court has not yet defined exactly when a 

report constitutes no report at all. And, although several courts of appeals have 

considered whether a document purporting to be an expert report is in fact worthy of the 
11

name,2no court has yet been asked, as we are here, whether a document disavowing 

any liability on the part of the defendant is ―no report‖ at all. We conclude that, under 

the applicable supreme court precedent, such a document must instead be considered 

―merely deficient,‖ and a claimant filing such a document may be given a thirty-day 

extension to cure the deficiencies under the statute.

In Ogletree, the majority of the supreme court implicitly limited ―the universe of 

possible reports‖ to ―two (and only two) types: absent reports, which have not been filed 

at all and require dismissal of the case, and deficient reports, which have been timely 

filed and may receive an extension.‖ 262 S.W.3d at 323 (Willett, J., concurring). 

Justices Johnson and Willett have argued in concurring opinions that there is in fact a 

third category of purported reports—those that have been filed but are ―so utterly 

 

2 Compare Bogar v. Esparza, 257 S.W.3d 354, 364-69, 373 (Tex. App.–Austin 2008, no pet.) 

(concluding that the purported expert report at issue was no report as to appellant because it failed to 

identify appellant, failed to describe the applicable standard of care, failed to describe how appellant may 

have breached the standard of care, and, consequently, failed to implicate any person‘s conduct),

Rivenes v. Holden, 257 S.W.3d 332, 338-39 (Tex. App.–Houston [14th Dist.] 2008, pet. denied) 

(determining that a purported expert report did not implicate appellant‘s conduct and was not a statutorycompliant expert report as to appellant because it offered no opinions concerning appellant's conduct, it 

failed to discuss how the care rendered by appellant failed to meet the applicable standard of care, and it 

failed to set forth how appellant‘s failure to meet the standard of care caused plaintiff to suffer injury, 

harm, or damages), and Apodaca v. Russo, 228 S.W.3d 252, 255-58 (Tex. App.–Austin 2007, no pet.) 

(holding that a purported expert report was no report as to appellee because it failed to mention appellee 

and it failed to discuss how the care rendered by appellee did not meet the applicable standard of care or 

how appellee's failure caused the patient to suffer injury, harm, or damages) with Scoresby v. Santillan, 

287 S.W.3d 319 (Tex. App.–Fort Worth 2009, pet. granted) (finding that ―this is not an absent report 

case . . . in which we may entertain an interlocutory appeal from the trial court‘s denial of a motion to 

dismiss because no report has been served‖), Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 282-83 (Tex. 

App.–Austin 2007, no pet.) (concluding that a purported expert report, which did not link the doctor‘s 

conduct with the expert‘s conclusions, was nevertheless a ―merely deficient‖ report, in part because of the 

report‘s ―tenor‖ and the fact that there was only one physician defendant), and Cook v. Spears, 275 

S.W.3d 577, 580-82 (Tex. App.–Dallas 2008, no pet.) (finding purported expert reports to be merely 

deficient, and not absent, in part because ―the required elements, while deficient, were not totally absent 

from the reports such that appellees could not cure the deficiencies if granted an extension‖).
12

lacking‖ as to merit immediate dismissal—but that view has not been endorsed by a 

majority of the Court.3 As our colleagues in Fort Worth stated in 2009:

At present, neither Ogletree nor any other supreme court opinion holds 

that a timely served expert report containing a narrative that fails to 

include any expert opinion on the standard of care, breach, or causation is 

tantamount to no report at all and thus ineligible for any section 74.351(c) 

extension. Until a majority of the supreme court so holds, such a 

determination by this court would necessarily constitute a modification to 

Ogletree‘s absent or deficient expert report limitation, which would be 

improper because we are bound as an intermediate appellate court by 

supreme court precedent.

Scoresby v. Santillan, 287 S.W.3d 319, 324 (Tex. App.–Fort Worth 2009, pet. granted)

(citing City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21 (Tex. App.–Corpus Christi 

2002, no pet.) (―As an intermediate appellate court, we are bound to follow the 

expression of the law as stated by the Texas Supreme Court and leave changes in the 

law to that court or the legislature.‖)). 

Here, although Dr. Brooks‘s purported report undisputedly failed to state that Dr. 

De La Garza had breached any standard of care, the document was in fact timely 

served. Because neither the supreme court nor this Court has recognized the 

possibility that a timely filed report may be, in effect, no report, we have no choice but to 

conclude that this is a ―deficient report‖ case, not an ―absent report‖ case. See 

Scoresby, 287 S.W.3d at 325 (concluding that, regardless of whether the purported 

expert report was ―utterly lacking,‖ it was timely served and so cannot be considered 

―absent‖ under Ogletree). Accordingly, the trial court did not abuse its discretion in 

 

3

Arguably, even if the view espoused by Justices Johnson and Willett was controlling, Dr. 

Brooks‘s report would still be considered ―deficient‖ and not ―absent‖ or ―so-deficient-it‘s-absent,‖ because 

the report does contain some of the elements prescribed by section 74.351. Cf. In re Watkins, 279 

S.W.3d 633, 639 (Tex. 2009) (orig. proceeding) (Willett, J., concurring) (―If a document bears zero 

resemblance to the statute—containing nothing that makes a report a report—it cannot receive an 

extension.‖).
13

denying Dr. De La Garza‘s motion to dismiss and granting Schruz a thirty-day extension 

to file a compliant report.4 We overrule Dr. De La Garza‘s issue.

III. CONCLUSION

In light of our conclusion that the trial court did not err in finding Dr. Brooks‘s 

report to be merely deficient, rather than no report at all, we dismiss the appeal for want 

of jurisdiction. See TEX. R. APP. P. 43.2(f); Ogletree, 262 S.W.3d at 321 (holding that, if 

a deficient report is served and the trial court grants a thirty-day extension, that 

decision, even if coupled with a denial of a motion to dismiss, is not subject to 

interlocutory appeal).

DORI CONTRERAS GARZA

Justice

Dissenting Memorandum Opinion by Justice Rose Vela.

Delivered and filed the

2nd day of June, 2011.

 

4

The dissent states, without reference to authority, that ―if a report that fails to mention the 

conduct of a physician is no report as to that physician, then a report that absolves the physician of 

negligent conduct is also  ̳no report.‘‖ But, as noted, the Texas Supreme Court has yet to acknowledge 

the possibility that a report, while not absent, might be so deficient that the trial court loses its discretion to 

grant a thirty-day extension under subsection 74.351(c). See Scoresby, 287 S.W.3d at 324. It is not the 

function of this Court to abrogate or modify established precedent; that function lies solely with the 

supreme court. Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 

2002). We refuse, as the dissent recommends, to entertain the possibility of a report being ―so-deficientit‘s-absent‖ when there is no actual supreme court case law to support that position.