COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ROY J OHN CAVI GL I A, M.D., FORTUN ATO PEREZ -B ENAVI DES, M.D., AND JOSE BERNARDO AREL L ANO, M.D., Appellants,

v. TANI KA TATE , AS NEXT F RI END OF EL I J AH MENDE Z , Appellee

. § § § § § § No. 08-10-00256- CV

Appea l from the County Court at L aw No. 6 of El Paso County , Texas (TC # 2009-4649)

O P I N I O N
I n this health car e liability ca se, Appellants Dr. Roy J ohn Cavig lia, Dr. For tunato PerezBe n av i d es , an d Dr. J ose Be rnar do Are llano filed written objections to the adequa cy of Appellee Tanika Tate’ s expert repor ts, and asked that her claims be dismiss ed with prejudice beca use of that alleg ed i n ad eq uacy . The trial court, afte r hear ing arg ument, issued order s overr uling Appellants’ objections. We aff

irm.
BACK GR OUND 1
On Fe bruar

y 29, 2000, Appellee , who was then in her twenty -fifth wee k of preg nancy , g ave birth to a t i n y b aby boy , Elijah Mendez. Mendez weig hed less than 1.5 pounds at birth and was immediately place d in the neonata l intensive car e unit (“N I CU”) of Providence Memorial Hospital in El Paso, Texas. Be cause of his extreme prema turity , Mendez was at risk for an ey e disease known

From the reco rd and the p arties’ briefs, w e have pieced together w hat app ear to b e the undisputed facts. 1 We hav e o m itted ce rtain facts n ot essential to o ur discussion.as re tinopathy of pre maturity

(“ROP”)

. 2
On April 3, 2000, Dr. J org e L lamas-Soforo, an ophthalmologist in the Providence NI CU,

ex amined Mendez’s ey es and found no indication of ROP. On May 1, 2000, Dr. L l am as -S o fo ro examined Me ndez’s ey es ag ain and still found no indication of ROP. On May 22, 2000, howeve r, Dr. L lamas-Soforo examined Mendez’s ey es a third time and found ROP in both of them. On May 25, 2000, Dr. L lamas-Soforo perf ormed laser surg ery on Mendez’s ey es, but the surg ery did not save Mendez from pe rmane nt leg al blindness. 3
On October 19, 2009, Appellee , as next friend of Mendez, filed a lawsuit ag ainst Dr. L lamasSoforo, Dr. L uis Ay o, Providence Memorial Hospital, and others, all eging neg lige nce that 4 proxi mately cause d Mendez’s leg al blindness. Appellee later amende d her petition to add Dr. Vibha Honkan and Appel l an t s as d efe ndants. Dr. Honkan and Appellants wer e all neonatolog ists who worke d in the Providence NI CU during the time Mendez was a patient there

. Appellee timely serve d on Appellants two expert repor ts, one written by Dr. Wil liam Good,

a p ed iatric ophthalmologist who prac ticed in California, and one written by Dr. Maure en S i m s , a neonatolog ist who also prac ticed in California. Appellants timely filed written objections t o the

ROP is “an ocular d isord er o f prem ature inf ants th at oc curs w

hen the incom

pletely vascularized r etina of 2 such an inf ant com pletes an ab norm al pa ttern of vascul arizatio n and that is characterize d b y the pr esence of an op aque fibro us m em

br ane behind the lens of each ey e.” Merriam-W ebster’s Med ical De sk Diction ary , http://w w w .m err iam -w ebster. com

/ (Ma rch 13 , 2 01 2)

. Legal blindness m eans “ hav ing not m or e than 20/2 00 visu al acuity in the better ey e w ith corr ecting lenses 3
or visu al acuity

greater than 20/2 00 but w ith a lim itation in the f ield o f v ision su ch that th e w idest d iam eter o f th e vis ual fi eld subtends an angle no greater than 20 de grees.” T EX
. H UM
. R ES
. C ODE A NN . § 91 .00 2( 2) (W est 20 01 ).
Dr. A y o w as a neonatolo gis t w ho w or ked in the NICU during the tim e Mende z w as a p atient there. A 4

“ neonatologist” is a p hy sician w ho w or ks in

the “branch of m edicine co ncerned w ith th e car e, d evelopm ent, and diseases of new

bo rn inf ants.” Merriam-W

ebster’s Colleg iate Dic tion ary, http://w w w .m err iam -w ebster. com

/ (Ma rch 13 , 2 01 2)

. 2adequa cy of the two expert repor ts and asked that Appellee ’s claims be dismiss ed with prejudice beca use of that alleg ed inadequa cy . I n their objections to Dr. Good’s repor t, Appellants arg ued that he had “fa il[ ed] to show any causa l link” betwee n their alleg ed neg lige nce and Mendez’s blindness.
I n their objections to D r. Sims ’ repor t, A ppellants arg ued that she was “[n] ot qualified to opine as
to [c] ausation” and that, in any event, she too had “fa iled to explain [how their] alleg ed neg lige nce proxi mately

cause d Elijah’s blindness.” The trial court later held a hear ing on Appe llants’ objections. At that hear ing, Appellants
arg ued as f

ollows: This case involves ROP, which is an ey e dis ea s e o f v er y prema ture babies. Only a handful of ophthalmologists trea t ROP. Neona tologists do not trea t it. They ca n trea t the baby that has ROP; but as far as ROP itself g oes . . . not ev en al l ophthalmologists trea t it. I t is a very complex dis ease . And s o Dr. S ims, who i s a neonatologist, attempts in her re p o rt to opine as to causa tion in this case . And we first object to her qualifica tions to be able to opine to that beca

use she has no experience , backg round, [or] training in trea ting ROP and say ing how any brea ches of the neonatolog ist actua lly cause d any blindness throug h the ROP. Additionally , we also object to the actua l opinions themselves as being conclusory

. Essentiall y wh at Dr. Sims say s is that the babies alleg edly wer en’t scre ened timely and now the baby is blind. There is no testimony as to how that ROP

– or how that delay cause d any blindnes s . That doesn’t

. . . inform any of these defe ndants as to how their a lleg ed bre ache s cause d any of this plaintiff’s injuries. Wit h re s p ec t t o Dr. Good’s repor t, we object to his opinions reg arding causa tion as also being conclusory

. His opinions are essentially the s am e as Dr. Sims ’, and basica lly

it doesn’t inform the def

endants a s to how any of their alleg ed brea ches c aused a

ny of the plaintiff’ s injuries. Appellee responde d to Appellants’ ar g uments as follows: [W ]hat the repor

t is supposed to do is demonstrate to the Court that the case has some merit. You’ve g ot some experts out there who are willing to g o and make a repor t and show that there ’s some merit to the claim and also put the defe ndants on notice of the conduct that’s being called into que stion. I n doing that under Chapter 74 [of the T exas Civi l Practice and Remedie s Code], y ou’re supposed to pr oduce a repor t that talks about the standard of car e, brea ches of the standard of ca re an d

3causa tion for ea ch of the defe ndants.

. . . I n their objections

. . . the defe ndants acknow ledg e that the neonatolog ist Dr. Sims is qualified to opine about the standard of car e for neonatologi s t s and the brea ches; and they ’ve also ack n o wl edg ed that Dr. Good, a rec og nized expert in ophthalmology , is qualified to opine about causa tion. When y ou put the two repor ts toge ther, y ou have standard of car e and brea ch and causa tion which m ee t s the Chapter 74 r equire ments. At the conclusion of the hear ing, the trial court overr uled Appellants’ objections to the two expert repor

ts. Appellants later filed timely notices of interlocutory appea l. See T E X

. C I V

. P R A C

. & R E M

. C O D E A

N N . § 51.014(a) (9) ( West 2008).

DISCUSSIO N On appea l to this Court, Appellants bring two issues, in which they arg ue that the trial court

err ed in overr

uling their objections to the two repor ts. Wit h respe ct to the adequa cy of those repor ts, Appellants and A

ppellee make esse ntially

the same a

rg uments that they

made be low. I n addition, howeve r, Appellee asks that we awa rd her damag es beca

use Appellants’ appea l is frivolo u s . See
T E X

. R. A P P

. P. 45.
STANDARD OF REVIEW
We revie w a trial court’s Section 7 4

. 3 5 1 rul ing for an abuse of discretion. American
Transit ional Care Ctrs. of T ex
. , In c. v. Palacios , 46 S.W .3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts in an unrea sonable or arbitra ry manne r, wi t h out ref

ere nce to any
g uiding rules or principles. W alker v. Gutierrez , 111 S.W .3d 56, 62 (Tex. 2003). A trial court acts arbitra rily and unrea sonably if it could have re ac h ed only one decision, but instead rea ched a differ ent one. See Teixeira v. Hall , 107 S.W .3d 805, 807 (Tex. Ap p . – T ex ar k ana 2003, no pet.).
To that end, a trial court abuses its discretion when it fails to analy ze or apply the law corr ectly

. In

4re Sw. Bell Tel. Co. , 226 S.W .3d 400, 403 (Tex. 2007), citing In re Kuntz , 1 2 4 S

. W

. 3 d 179, 181

(Tex. 2003).
RELEVANT LAW
T h e p l ai n t i ff, in a health car e liability lawsuit, must serve on eac h defe ndant one or more expert repor

ts, and associate d curr icula vitae, no later than 120 day s afte r the petition is filed. T E X

. C I V

. P R A C

. & R E M

. C O D E A

N N

. § 74.351(a) (West 2011). For these purposes, an “expert repor t” is

a written repor t b y an ex pert that provides a fair summary of the expert’s opinions reg arding applicable standards of car e, the manner in which the defe ndant failed to meet those standards, and the ca usal rela tionship between the defenda nt’s failure and the plaintiff’ s injury . T E X

. C I V

. P R A C

. & R E M

. C O D E A

N N

. § 74.351(r) (6) (West 2011). A plaintiff may satisfy any require ment for serving

an expert repor

t by serving separ ate repor ts from differ ent experts. T E X

. C I V

. P R A C

. & R E M

. C O D E A N N

. § 74.351(i) (West 2011). Thus, a defic iency in one repor t may be made up in another repor t. An ex pert re port and/or its ac company ing c urriculum vitae must establish that t he report’s author is qualified to opine as an expert on the su b j ec t m at t er of the repor

t. In re McAllen Med.
Center , 275 S.W .3d 458, 463 (Tex. 2008). The medic al expert nee d not prac tice in the same specia lty as the de fenda

nt in order to qualify

as an e x pert. Roberts v. W illiamson , 111 S.W .3d 113, 122 (Tex. 2003). Howe ver, not e very licensed phy sician is alway s qualified to testify on

ever y medical que stion. Broders v. He ise , 924 S.W .2d 148, 152 (Tex. 1996). To be qua lified to opine on the ca

usal rela tionship betwee n the def endant’ s alleg ed fa ilure to meet a n applicable 5

A causal relatio nsh ip exists betw een the defendant’ s failu re to m eet an ap plicab le standard of car e and the 5 plaintiff ’s injury if: (1) the defendant’ s failu re w as a substantial f

actor in causin g the in

j ury and ( 2) but for the defendant’ s failu

re, the injury

w ould not hav e o ccurred

. Pala fox v . S ilvey , 2 47 S.W .3d 31 0, 31 7 ( T ex. App. – El P aso 2 00 7, no pe t.). 5standard of car e and the plaintiff’s injury , the re port’s author must be a phy sician who is otherwise qua lified to rende r opinions on such ca usal rela tionship under the Texas Rules of Evidence . T E X

. C I V

. P R A C

. & R E M

. C O D E A

N N . § 74.351(r) (5) ( West 2011). Under Texas Rule of Evidence 702, an expert witness may be qualifie d on the basis of “knowledg e, skill, ex perie nce, tr aining , or educ ation . . . .” The question of whethe r an e x pert witness is qualified under Rule 702 lies within the sound discretion of the trial c ourt. Broders v.
Heise , 924 S.W .2d 148, 151 (Tex. 1996). Thus, a medic al expert from one specia lty may be qualified to testify

if he ha s prac tical knowledg e of w hat is traditionally done by medical e x perts of a diff ere nt specialty

under c ircumstance s simil ar to those a t issue in the case

. Keo v. Vu , 76
S.W .3d 725, 732 (Tex. App. – Houston [1st Dist.] 2002, pet. denied)

. Certainly , if the subject matter is common to and equally rec og nized and develope d in all fields of prac tice, any prac titioner familiar with the subject may testify as t o t he standard of car e. Id .; Blan , 7 S.W .3d at 745. Howeve r, the proff ere d medical expert’s qualifica tions must be evident from the four corne rs of his expert repor t and curr iculum vitae. See generally Palacios , 46 S.W .3d at 878; Christ us Health Southeast Texas

v. Broussard , 267 S.W .3d 531, 536 (Tex. App

. – Be aumont 2008, no pet.). The trial court must

ensure that a witness who purports to be an expert rea lly does have expertise reg arding the subject about which he is offe ring an opinion. Palafox v. Silvey , 247 S.W .3d 310, 316 (Tex. App. – El Paso 2007, no pet.).
A defe ndant may file written objections to the adequa cy of an expert repor t. T E X

. C I V

. P R

A C

. & R E M

. C O D E A

N N

. § 74.351(l) (West 2011). The trial court may sustain such objections only if it finds, afte r a hear ing, that the repor t does not repr esent an objective g ood faith eff ort to comply with the statutory definition of an expert repor t (see ab ove). Id. To repr esent an objective g ood faith

6eff

ort, the repor

t must provide enoug h information to: (1) i nform the defe ndant of the specific

co nduct t hat t he plainti ff has called into question and (2) allow t he trial court to conclude that the claim has merit. Palacios , 46 S.W .3d at 879. A re port that mere ly states the expert’s conclusions about the standard of car e, brea ch, and caus ation does not provide the nece ssary information. Id

. On the other hand, a repor t does not have to meet the same require ments as the evidenc e offe red in
a summary

judgme nt proce eding or at trial. Id

. A trial court’s order deny ing a motion challen gi n g t h e adequa cy of an expert repor t is revie wed on a

ppeal f or abuse of discre tion. Id . at 877.

DR. G OOD’S REPORT Appellants ar g ue that the trial court erre d in overr uling their objections to the adequacy of
Dr. Good’s expert repor

t beca use he failed “to provide a sufficie n t l y s p ecific descr iption of the

causa l rela

tionship betwee n eac h Appellant’s individual acts and Appellee ’s all ege d i njury .” Appellants do not challeng e Dr. Good’s qualifica tions or the adequa cy of his discussion of the applicable standard of car e or the manner in which Appellants brea ched that standard; they complain only about Dr. G ood’s discussion of ca usation. Dr. Good’ s repor

t rea d, in releva

nt part, as f

ollows:
Ba by Elijah was born on 2/29/00 at an estimated g estational ag e of 24 wee ks 5 day s, with a birth weig ht of 650 g rams. Ba by Elijah was first examined by Dr. L lamas on 4/3/00, or betwee n approximately 4-5 wee ks of life. Dr. L lamas found no fung us in the posterior pole and no t ed i n co mplete vascula rization at 360 deg ree s. He rec ommended follow-up in 4 wee ks. Throug hout the next month, it was noted in the rec ords that Elijah was at high ri s k fo r R OP and awa iting rea ssessment by Dr. L lamas. Dr. L lamas re- examined Elijah on 5/01/00. At that time Dr. L lamas noted Elijah’s “incr ease d vascula rization, no ROP,” and rec ommended follow-up in three wee ks. Dr. L lamas ree x amined Elijah on 5/22/00 and discovere d advanc ed ROP in both ey es. . . . Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano wer e neonatolog ists that cover ed the NI CU during Elijah’s rele vant clinical course .
7Eac h neonatolog ist that provided car e to Elijah Mendez from the time of the

initial follow-up [opht halmologic ] examination of May 1, 2000 until the second follow-up ex amination on May 22, 2000 owed the same standar d of care to Elijah. These neonatolog ists wer e neg lige nt by not obtaining the neede d ophthalmologic examination within 1-2 wee ks of the May 1 , 2000 exam. This includes Drs. L uis Ay o (May 2, 9, 10, 11, 16, 17), J ose Be rnar do-Are llano (May 4, 5, 12, 13), For tunato Perez-B enavide s (May 6, 7, 8), Roy Cavig lia (May 14), and Vibha Honkan (May 1, 15), who car ed for Elijah on these day s. The infant was at very high risk for d ev el o ping ROP in this window of time in his life, and so he should have bee n examined more fr equently

.

. . . To reiter ate, his very low birthweig ht and g estational ag e at birth place d him at particula

rly high risk for developing ROP. He should have been examined at least ever y 2 wee ks. Ba sed on Dr. Ay o’s own testimony conce rning standard of car e and Dr. L lamas’s May 1 exam demonstrating Elijah’s incomplete vascularization, Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano brea ched standard of car e by failing to provide a followup ROP exam for Elijah within 2 wee ks of May 1.

. . . I f Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are ll ano provided standard of c are , a follow-up e x am would have taken plac e between May 8 and May 15, when, within a rea sonable deg ree of medical probability , Elijah would have had the ty

pe of threshold ROP that should have been trea ted in a timely fashion with ablative thera

py . By providing appropr iately -t imed ablative thera py , Elijah’s bi l at er al leg al blindness, within a rea sonable deg ree of medical probability , would never have occur

red. I ns t ea d , Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano failed to ensure a timely follow-up examination, resulting in failure to diag nose Elijah’s ROP at a point in time when he could have expected a favor able outcome from surg ery , to a medical probability

. I n my opinion Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano’s failure to provide this standard of

car e is a proximate cause of Elijah’s blindness.

. . . I n addition, I ag ree with Dr. Sims ’ opinion stated in her repor t that Drs. Ay o, Honkan, Caviglia, P ere z-Bena vides an d Be rn ardo- Are llano’s us e of Dr. L lamas t o

8consult on and trea t Elijah’s ROP in t h i s ca s e when Dr. Radenovich, a trained [6 ] pediatric ophthalmologist, was ava i lable is beneath standard of car e. Drs. Ay o, H o n k an, Cavig lia, Perez-B enavide s and Be rnar do-Are llano’s use of Dr. L la ma s , w h o improperly examined and trea ted Elijah’s ey es, was also a proxi mate cause of Elijah’s blindness. Dr. L lamas was not ap p ro p ri ately trained and proctore d to perf orm laser surg ery for ROP on neonate s. Dr. L lamas’s training to do laser surg ery for ROP consisted of attending a one day s em i n ar and he then beg an doing laser surg ery for ROP on neonate s without any procto ring by an ophthalmologist experience d in perfor

ming lase r surg ery

for ROP.

. . . Elijah’s leg al blindness was proxi mately cause d by Drs. Ay o , Ho nkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano[’s] failure s of standard of car e, as descr ibed above. Had they provided Elijah with a timely followup exam within 1-2 wee ks of Dr. L lamas’ May 1 exam, his threshold R OP woul d h av e b een identified and, to a rea sonable deg ree of medical probability , ablative laser thera py would have been e ffe ctive in pre venting his bilateral leg al blindness.
AP P LICATION Dr. Good, in his re port, opined that Appellants brea ched the applicable standard of car e in
t wo way s: (1) by failing to ensure that Mendez’s ey es wer e examined for R OP b y an ophthalmologist within one to two wee ks afte r Dr. L lamas examined them on May 1, 2000, and (2) by allowing Dr. L l amas to provide the nece ssary car e for Mendez’s ey es when a trained pediatric ophthalmologist was available to pr ovide that car e. Dr. Good further opined that, to “a rea sonable deg ree of medical probability ,” but for Appellants’ brea ch es o f the applicable standard of car e, Mendez’s ROP would have been discovere d and trea ted in a timely fashion and he would not have suffe red leg al blindness. On this rec ord, the trial court could have rea sonabl y co n cl u d ed that Dr. Good’s discussion of causa tion repr esente d an objective go o d fa i t h eff ort to meet the statutory require ment. Dr. Good’s repor t pr ovided enoug h information to inf orm Appellants of the specific

T he reco rd do es not reflect Dr . Rade novich ’s given nam e. 6 9conduct that Appellee had called into question and to allow the trial court to conclude that

Appellee ’s claim had merit. Thus, we discern no abuse of discretion on the part of the trial court in its overruling of Appe llants’ objections to the ade quacy of Dr. G ood’s expert repor t. DR. SIMS’ REP ORT Appellants arg ue that the t rial court err ed in overr uling their objections to the adequa cy of
Dr. Sims ’ repor

t beca use she was not qualified to opine on the issue of causa tion and, in any event, she too failed “to provide a sufficie ntly specific descr iption of the causa l rela tionship betwee n eac h [of] Appellant’s individual ac ts and Appellee ’s alleg ed inj ury .” Dr. S ims’ repor t rea d, in releva

nt part, a s follows:

I curr ently hold a medical license in the St at e o f C ali fornia, wher e I am a Professor of Pediatrics at the University of C alifornia, L os Ang eles. I am a boardcer tified pediatric ian and ne onatolog ist. I have a ttached my

curr iculum vitae. [7 ] During my car eer I have been Direc tor of Newbor n Service s at Met hodist Hospital in Arc adia, CA, Direc tor of [t he] Newbor n I ntensive Care Unit at the King

Dre w M edica l Center, and, most rec ently , I wa s t h e Di rec tor of Newborn S ervic es at Olive View- UCL A Medica l Center and held that position at the time these events with Elijah occur

red. I am active in establishing and updati n g policies and proce dures for neonata l car e provided in the Newbor n I ntensive Care Unit and I have been involved in the development of standard of car e policies and proce dures for the car e o f p rema ture babies for the past 20 y ear s. I have chaire d hospital committees for quality improvement and Chaired the Depa rtment of Hea lt h Be s t Practice Commi ttee for L os Ang eles County

. I n this capa city I have worke d with and trained neonata l nurses re g arding appropr iate nursing standards of car e within the NI CU. I have persona lly trea ted small preter m newborns like Elijah Mende z, and I am familiar with the standards of car e for trea ting such small infants, both at the phy sician level and the hospital/nursing/staff ing level with res p ec t to policies and proce dures, for ensuring scre ening for retinop at h y of prema turity (ROP). I have requ est ed ophthalmologic consultations from pediatric ophthalmologists to scre en prete rm infants for ROP, and I have helped t o d evelop the nece ssary policies and proce dures to ensure a baby at risk for ROP obtains the nece ssary car e and trea tment he or she needs.

T he reco rd co ntain s no such ad ditional curr iculu

m vitae. 7 10. . . Drs. Ay o, Honkan, Cavig lia, Perez-B enavide s and Be rnar do-Are llano had an individual responsibility as Elijah’s neonatolog ists to ensure he was rec eiving proper and timely ROP s cr eenings, followup scre ening s, and that Elijah rec eived the nece ssary trea tment for ROP. These neonatolog ists failed to ensure that a followup s cr ee ning took place betwee n May 8 and May 15, or 1-2 wee ks afte r Dr. L l am as ’ May 1 exam. Fur thermore , if Elijah had had a timely ophthalmologic scre ening examination betwee n May 8 and May 15, Elijah’s ROP would have been timely and appropr iately trea ted with ablative thera py , and he would, within a rea sonable deg ree of medica l probability , have a n improved visual outcome. Finally , had Drs. Ay o, Honkan, Cavig lia, Perez-B enav i des and Be rnar doAre llano u t iliz ed Dr. Radenovich, a pediatric ophthalmologist with the nece ssary education, training and experience to examine and trea t babies at risk for ROP, Elijah would have rec eived the car e and trea tment he d es er ved – standard of car e – and Elijah would, within a rea sonable deg ree of medical probability , [have] had an improved visual outcome that would not have left him leg ally blind. I n m y o pinion, the neg lige nce of Drs. Ay o, Honkan, Cavig lia, PerezBe navides and Be rnar do-Are llano, as descr ibed above, proxi mately cause d Elijah’s bilatera l leg al blindness, and absent these failure s Elijah would, within a rea sonable deg ree of medica l cer

tainty , [have] had an improved visual outcome.”

AP P LICATION
Dr. Sims ’ repor

t indicates that she is an accom p l i s hed neonatolog ist and that she is knowledg eable abo u t p roce dures appropr iate for ensuring that prema ture infants are scre ened for
ROP. But nothing in Dr. Sims ’ repor t indicates that she has knowledg e, skill, experience , training ,

or education i n o p hthalmology , pediatric ophthalmology , the way in which ROP
prese nts in newbor

ns, or how that disease is trea ted in g ener al and in Mend ez ’ ca s e. On this

rec ord, then, the trial court could not have rea sonably co ncluded that Dr. Sims had g enuine

ex p er t i se reg arding the causa l rela tionship betwee n Appellants’ alleg ed brea ch of the applicab l e standard of car e and Mendez’s injury

. Th u s , the trial court abused its discretion in overr uling Appellants’ objections t o Dr

. S i m s ’ report. Howeve r, i n light of Dr. Good’s expert repor t, which

11the trial court proper ly upheld, the trial court did not err in not dismiss ing Appel l ee’ s health car e

claim.
SANCTIONS Appe l l ee arg ues that we should awa rd damag es to her beca use it is “evide nt” that Appellants “have failed to identify any leg itimate basis for co n cl u d i n g that the expert repor ts are insufficient

. . . .” We have t h e au t h ority , of course , to awa rd just damag es if we deter mine that an appea l i s fr i v o lous, but we exercise that authority only if the rec ord shows that the appellant did not act in g ood fait h and had no rea sonable expectation of reve rsal. Faddoul v. Oaxac a , 52 S.W .3d 209, 213 (Tex. App. – El Paso 2001, no pet.); T E X

. R. A P P

. P. 45. I n this case , Appellants have submitt ed a very thoroug h brief, counsel for Appellants appe ar ed at oral

ar gu m en t , and Appellants have shown that the t rial court did abuse its discretion in part. I n v i ew of all that, we cannot conclude that Appellants had no rea sonable expectation of reve rsal.
CONCLUSION Although we have deter

mined that the trial co u rt err ed by overr uling the objections to the expert repor

t of Maure en Sims , M.D., the trial court proper ly overr uled the objections to the expert
repor t of Wil liam Good, M.D. We there fore aff irm the trial court’s order deny ing the m o t i o n to dismiss

. Marc h 14, 2012 GUADA L UPE RI VERA, J ustice
Be fore Rivera, J., Antcliff, J ., and Chew, C.J., (Senior) Chew, C.J ., (Senior), sitting by assig nment, concur

ring

12CONCURR ING OP INION
I respe ctfully concur . I do not believe that the trial court abused its discretion in ref using to find Dr. Sims ’ expert repor t inadequa te. See Pediatrix Medic al Group v. Robinson , 352 S.W .3d 879 (Tex. App. – Dallas 2011, no pe t.).

DAVI D WEL L I NGTON CHEW, C hief Just ice ( Senior) Marc h 14, 2012

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