NUMBER 13-14-00756-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

VALLEY BAPTIST MEDICAL

CENTER-BROWNSVILLE, Appellant,

v.

ROSALINDA BATTLES, GERALD 

BATTLES, AS SURVIVING SPOUSE 

OF ROSALINDA BATTLES, AMANDA 

GISELLE BATTLES, AS SURVIVING 

CHILD OF ROSALINDA BATTLES, 

AND JEREMY BLAKE BATTLES, AS 

SURVIVING CHILD OF ROSALINDA

BATTLES, Appellees.

On appeal from the 444th District Court

of Cameron County, Texas.
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MEMORANDUM OPINION

Before Justices Rodriguez, Garza and Longoria

Memorandum Opinion by Justice Longoria

Appellant Valley Baptist Medical Center (“VBMC”) brings this interlocutory appeal 

in a healthcare liability claim concerning the adequacy of an expert report. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2015 R.S.). By a single issue, 

VBMC asserts that the trial court erred in denying its motion to dismiss. According to 

VBMC, dismissal was mandatory since appellees did not file a qualifying expert report 

within the statutory timeframe. We reverse and render, in part, and reverse and remand, 

in part.

I. BACKGROUND

On July 24, 2013, the surviving spouse and children (collectively, “appellees”) of 

Rosalinda Battles filed suit against VBMC for the wrongful death of Rosalinda, who died 

after surgery there to remove her gallbladder. On November 21, 2013 appellees served 

VBMC with an expert report from Nurse Erin K. O’Malley. This report listed O’Malley’s 

qualifications as an expert, as well as the following:1

You have asked me for my opinion on the standards of care, breaches of 

said standards, and the basis of same in the case of Battles vs. Valley 

Baptist Medical Center.

. . . .

This report has been rendered in a professional, diligent manner, and is 

based on the facts obtained from the materials provided me, as well as my 

education, training and clinical expertise in general nursing care. This 

report is intended to be a fair summary of my opinions.

 

1 We have excluded the qualification section since it is not in dispute on appeal.
3

I have reviewed the following records provided by your office regarding Mr. 

Bradford [sic]: 

 Autopsy Report

 Lab Reports

 Medical Records from Valley Baptist Medical Center

Summary:

On 7/25 Ms. Battles a 47yo female entered Valley Baptist Medical Center 

for a routine cholecystectomy and was admitted to a short stay unit. The 

procedure was done without incident. The patients [sic] vital signs remained 

stable throughout the procedure, and in post-operative care. That evening 

around 5:30 pm the patient started complaining of headaches, nausea, and 

vomiting. At 6:12 pm the patient exhibited seizure activity. The patient lost 

consciences [sic], and a code was called. The patient was intubated, given 

Lovenox, and transferred to the intensive care unit. The patient was taken 

to CT scan, which showed minimal edema, and no intracranial bleeding. 

The CT angiogram of the chest showed no pulmonary embolism. The CT 

scan of the abdomen showed no fluid collection. The patient developed a 

sub arachnoid and subdural hemorrhage. This caused cerebral edema, 

hemorrhage, necrosis, herniation at the brain stem area which eventually 

caused death. The family was aware of her condition and decided that Ms. 

Battles should be taken off life support.

VBMC timely objected to the expert report on the grounds that it: 1) failed to set 

out the appropriate standard of care; 2) failed to set forth how VBMC breached the 

standard of care; and 3) failed to identify and explain the causal link between VBMC’s 

alleged breaches of the standard of care and the plaintiff’s injuries. VBMC moved to 

dismiss the case or, in the alternative, give appellees thirty days to cure the deficient 

expert report if the trial court found the report deficient and if the appellees requested 

such an extension. On January 8, 2014, the trial court granted appellees thirty days to 

cure the deficiencies in the report. On February 7, 2014, appellees filed an updated 

expert report from O’Malley. The second report was identical to the first except that it 

added the following paragraph:
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Based on information reviewed to date, I cannot fully say that the standard 

of care concerning the care of Mrs. Battles was breached nor can I say it 

was complied with. There is evidence that the nursing staff did not notify 

the operating physician of Mrs. Battles’ symptoms for nausea and 

headaches. If these symptoms were reported prior to seizure activity, then 

a diagnostic testing such as the CT scan could have been performed earlier. 

However, the CT scan done after the seizure episode did not show the 

impending sub arachnoid and subdural hemorrhage. However, I find that if 

the CT [s]can was done sooner and with more extensive views the sub 

subarachnoid and subdural hemorrhage could have been seen prior to 

seizure activity. The nursing staff disregarded Mrs. Battles’ symptoms and 

did not inform the operating physician of her condition. Had this been done, 

a neurosurgeon could have been called before Mrs. Battles’ seizure activity 

occurred and may have avoided her catatonic state and, ultimately, her 

death.

On March 12, 2014, VBMC objected to the second expert report, again stating that 

the report failed to meet the statutory requirements, and moved for dismissal. On 

December 10, 2014, the trial court denied VBMC’s motion to dismiss. VBMC brought this 

appeal.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s ruling on a motion to dismiss under section 74.351 of the 

Texas Civil Practice and Remedies Code for abuse of discretion. Jernigan v. Langley, 

195 S.W.3d 91, 93 (Tex. 2006). “The trial court abuses its discretion if it acts

unreasonably or arbitrarily or without reference to any guiding rules or principles.” Walker 

v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). The court of appeals cannot reverse a 

decision committed to the trial court’s discretion if the court of appeals simply disagrees 

with the trial court’s judgment. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41–42 

(Tex. 1989) (orig. proceeding). The trial court’s decision must result in a “clear and 

prejudicial error” to be reversible. Id.
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The Texas Medical Liability Act, codified in Chapter 74 of the Civil Practice and 

Remedies Code, governs the process of serving expert reports in health care liability 

suits. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West, Westlaw through 2015

R.S.). Section 74.351(a) states that the plaintiff in a medical liability suit has 120 days to 

serve each defendant with an expert report. Id. § 74.351(a). Chapter 74 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 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). Section 74.351(a) states that defendants have twenty-one days upon 

receipt of the report to object to any deficiencies; failure to object results in waiver of all 

objections to the expert report. Id. § 74.351(a)(1). Under section 74.351(b), if no report 

is filed, the trial court shall enter an order dismissing the suit and awarding the affected 

physician or health care defendant with attorney’s fees and costs. Id. § 74.351(b). 

However, “if an expert report has not been served within the period specified by 

Subsection (a) because elements of the report are found deficient,” the court may grant 

a thirty-day extension for the plaintiff to cure the deficiencies. Id. § 74.351(c). As the 

Supreme Court of Texas has noted, the Act’s purpose is to strike a delicate balance 

between deterring frivolous law suits without needlessly disposing of meritorious claims. 

Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008). In general, trial courts should “err 

on the side of granting claimants' extensions.” Samlowski v. Wooten, 332 S.W.3d 404, 

411 (Tex. 2011). This way, meritorious suits will have a chance to be heard on the merits 

before being dismissed; only frivolous suits should be dismissed from the outset. Id. 
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However, a string of Texas Supreme Court cases have clarified what constitutes 

an adequate expert report. See Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013); 

Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011); Samlowski, 332 S.W.3d at 411; 

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010); Ogletree v. Matthews, 262 S.W.3d 316 

(Tex. 2007). In Ogletree, the Texas Supreme Court rejected the argument that a deficient 

report is the same as no report under the Act. 262 S.W.3d at 320. The Court recognized 

that the Act differentiates between a nonexistent report and a report that is filed in good 

faith but ultimately falls short of the statutory requirements such as by failing to state the 

applicable standard of care. Id. Nonexistent reports lead to dismissal whereas merely 

deficient reports should lead to a thirty-day extension to allow an opportunity for 

deficiencies to be cured. Id. The Court in Scoresby addressed the specific question of 

whether an expert report can be “so lacking in substance that it does not qualify as an 

expert report.” 346 S.W.3d at 555. The Court affirmed its previous decision in Ogletree

but with a caveat: “[t]o stretch the meaning of deficient to include a sheet of paper with 

the two words, ‘expert report’, written on it would mock the Act's requirements.” Id. at 

556. Looking to past decisions, the Court noted that 74.351 requires “an objective good 

faith effort to comply” with the statutory requirements. Id.

Based on this understanding of the Act, the Court created a three-prong test to 

determine whether an expert report is adequate: the report must 1) “be served by the 

statutory deadline”; 2) “inform the defendant of the specific conduct the plaintiff has called 

into question”; and 3) “provide a basis for the trial court to conclude that the claims have 

merit.” Id. at 555-57 (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 

S.W.3d 873, 879 (Tex. 2001)). To determine if the three elements are present, the trial 
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court must look no further than the four corners of the expert report; any “omissions may 

not be supplied by inference.” Id. (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 

(Tex. 2002)). If any element is missing, then no expert report has been filed and the case 

should be dismissed regardless of when the defendant objects. See id.; see also Haskell 

v. Seven Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754, 759 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (holding that if a report is so deficient as to constitute 

no report at all, the twenty-one day deadline to object is never triggered and the trial court 

is “required to dismiss”); Velandia v. Contreras, 359 S.W.3d 674, 679 (Tex. App.—

Houston [14th Dist.] 2011, no pet.) (stating that dismissal is automatic, regardless of when 

the defendant objects, if the report filed constitutes no report at all); see also San Antonio 

Extended Med. Care, Inc. v. Vasquez, 358 S.W.3d 685, 691 (Tex. App.—San Antonio 

2011, pet. dism'd w.o.j.) (holding that the trial court “did not have a basis” to deny 

defendant’s motion to dismiss because the underlying expert report was not an expert 

report as defined in Scoresby). The court further elaborated in a later opinion that as long 

as there is “at least one viable liability theory, as evidenced by an expert report,” the claim 

is not frivolous and should proceed forward. Potts, 392 S.W.3d at 631.

III. DISCUSSION

VBMC contends in a single issue that the trial court had no discretion to deny its 

motion to dismiss because O’Malley’s report did not meet the statutory minimum 

requirements to qualify as an expert report. We agree. We conclude that under the test 

set forth in Scoresby, O’Malley’s second expert report failed to comply with the statutory 

requirements of section 74.351. Thus, it was an abuse of the trial court’s discretion to 

deny VBMC’s second motion to dismiss.
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In order to meet the statutory requirements, Scoresby requires that the report: 1) 

be filed in the statutory deadline; 2) implicate the defendant's conduct; and 3) contain the 

opinion of an individual with expertise that the claim has merit. 346 S.W.3d at 557. The 

second report was filed within the statutory thirty-day deadline for filing an amended 

report. Appellee’s second report, however, is wholly deficient under the second and third 

prongs of the Scoresby test. O’Malley never indicates her opinion regarding whether or 

not the claim has any merit nor does she ever implicate VBMC’s conduct. Id. at 555.

The language of the report implies that O’Malley will offer her opinion on the merit 

of the claim and on the applicable standards of care but ultimately mentions neither. As 

discussed earlier, the court may not make any inferences in regard to the expert report. 

See Wright, 79 S.W.3d at 52. Without making inferences, we find nothing in the four 

corners of this report to suggest that O’Malley believes that appellees’ claims have any 

merit. To the contrary, O’Malley’s language strongly implies that this case has no merit: 

“I cannot fully say that the standard of care of Mrs. Battles was breached nor can I say it 

was complied with.” That language specifically contradicts the requirement that the report 

must assert that the claim has merit. See Scoresby, 346 S.W.3d at 557.

Furthermore, O’Malley’s second report never affirmatively accused VBMC of doing 

anything wrong. The report never addressed the issue of whether or not VBMC’s actions 

caused harm to Rosalinda, never cited an instance where VBMC’s actions fell below the 

standard of care, and never even indicated what the standard of care in this situation 

would be. Instead of affirmatively claiming that the suit has merit, O’Malley uses 

speculative language that never truly implicates VBMC’s actions in a way to make them 

liable. The amended report speculates as to what might have happened if certain steps 
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were taken (what “could” have happened or what “may” have happened) but it never 

asserts that VBMC’s actions actually fell below the standard of care. O’Malley asserts 

that the subdural hemorrhage might have been identified if CT scans were performed 

earlier, but O’Malley never claims that VBMC fell below the applicable standard of care 

by performing the scans when it did. O’Malley comments that the CT scan could have 

been performed earlier if the nurses reported Battles’s symptoms earlier but once again 

fails to state whether failing to report symptoms earlier was breaching a standard of care. 

The report does not establish any theory of liability that would allow appellees to prevail. 

See Potts, 392 S.W.3d at 631. A report like the second one in this case is no report under 

section 74.351. See Scoresby, 346 S.W.3d at 555. As such, VBMC’s obligation to object 

was never even triggered and it was entitled to automatic dismissal. See Velandia, 359 

S.W.3d at 679; Haskell, 363 S.W.3d at 759; Vasquez, 358 S.W.3d at 691.

Even though it may be “impossible to draw precisely” the lines between an 

adequate report, a deficient report, and no report at all, in the present case we conclude 

that it was an abuse of discretion to find that O’Malley’s second report satisifed the 

statutory threshold. See Jelinek, 328 S.W.3d at 542. We therefore conclude that the trial 

court erred in denying VBMC’s motion to dismiss. We sustain VBMC’s sole issue.

IV. CONCLUSION

We reverse the order of the trial court order denying VBMC’s motion to dismiss;

render judgment dismissing Battles’s suit against VBMC with prejudice; and remand for 
10

a determination of attorney’s fees and costs owed to VBMC, as required by section 

74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (West, Westlaw through 2015 

R.S.).

 

NORA L. LONGORIA

Justice

Delivered and filed the

25th day of June, 2015.