IN THE

TENTH COURT OF APPEALS

No. 10-08-00146-CV

HAROLD BRUCE HAMILTON, M.D.

AND TEXAS NEUROLOGICAL & 

PAIN INSTITUTE, P.A.,

Appellants

v.

TIMOTHY DURGIN,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2007-3898-1

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

Timothy Durgin filed suit against Dr. Harold Bruce Hamilton and Texas 

Neurological & Pain Institute, P.A., alleging that the defendants were negligent in the 

performance of lumbar fusion surgery on him, which resulted in a post-operative 

infection leading to an infection of his bones. After receiving Durgin’s expert report, the 

defendants moved for a dismissal of the suit pursuant to section 74.351(b) of the Texas 

Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) 
Hamilton, et al v. Durgin Page 2

(Vernon 2008). The trial court denied the motion, and the defendants appealed. Id. § 

51.014(9) (Vernon 2008). Finding that the trial court did not abuse its discretion in 

denying the motion to dismiss, we affirm its order.

THE ISSUES

The defendants argue that the trial court abused its discretion 

because Durgin’s expert reports: 1) with respect to claim 1, negligence in performing the 

surgery, fail to link the surgery performed by defendants with any specific injury 

suffered by Durgin, i.e., a “causation” question; 2) with respect to claim 2, negligence in 

providing post-surgical care, do not rely on the hospital’s records and are thus 

speculative concerning a breach of the standard of care and fail to link the care with any 

injury Durgin suffered; and 3) with respect to claim 3, negligence in treating the postoperative infection, do not rely on the hospital’s records so as to have an accurate 

factual basis for the opinion concerning a breach of the standard of care and fail to link 

the care with any injury Durgin suffered. Durgin argues that the trial judge did not 

abuse his discretion because the reports were adequate to meet the requirements of 

chapter 74 of the Civil Practice and Remedies Code. See id. § 74.351(r)(6) (Vernon 2008).

SUFFICIENCY OF THE REPORTS

When considering a motion to dismiss under Section 74.351, the issue for the trial 

court is whether the report represents a good-faith effort to comply with the statutory 

definition of an expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 

2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 

2001). An “expert report” means:
Hamilton, et al v. Durgin Page 3

A written report by an expert that provides a fair summary of the expert’s 

opinions as of the date of the report regarding the 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. 

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). To constitute a "good-faith effort," the 

report must discuss the standard of care, breach, and causation with sufficient 

specificity to fulfill two purposes: (1) to inform the defendant of the specific conduct the 

plaintiff has called into question; and (2) to provide a basis for the trial court to 

conclude that the claims have merit. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

The trial court should look no further than the report itself, because all the 

information relevant to the inquiry is contained within the document's four corners. 

Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. The report must include the expert's 

opinion on each of the three elements that the statute identifies: standard of care, 

breach, and causal relationship. Id.

Although an expert report need not marshal all the plaintiff's proof, the expert 

may not merely state conclusions about the required elements of standard of care, 

breach, and causation. Bowie, 79 S.W.3d at 52. Rather, an expert must explain the basis 

of his opinions and link his conclusions to the facts. Id. (citing Earle v. Ratliff, 998 S.W.2d 

882, 890 (Tex. 1999)).

We review a trial court's order on a motion to dismiss a claim for failure to 

comply with the expert report requirements under an abuse-of-discretion standard. 

Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. When reviewing matters committed 

to the trial court's discretion, we may not substitute our own judgment for the trial 
Hamilton, et al v. Durgin Page 4

court's judgment. See Flores v. Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex. 1989), 

modified on other grounds by National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993).

The defendants essentially argue the merits of Durgin’s claim, relying on 

documents and information outside of the reports. After reviewing the reports, we 

agree with Durgin that the trial court was justified in finding that they discuss the 

standard of care, breach, and causation with sufficient specificity to fulfill the two 

required purposes: (1) inform the defendants 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, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. Thus, the trial 

court did not abuse its discretion in denying the defendants’ motion to dismiss.1

Appellants’ issues are overruled, and the trial court’s order is affirmed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed November 5, 2008

[CV06]

 

1 Our conclusion would be the same if we did a de novo review of the expert reports, as we suggested 

may be proper in Wooten v. Samlowski, ___ S.W.3d ___, ___ n.1, 2008 WL 2133072 at *1 n.1 (Tex. App.—

Waco May 21, 2008, pet. filed).